author: Eldridge, Judge.

text:
    A00A1998.
    CFUS PROPERTIES, INC. et al. v. THORNTON.
    (539 SE2d 571)
   Eldridge, Judge.

CFUS Properties, Inc. d/b/a Gwinnett Place Mall, Urban Retail Properties Company, f/k/a JMB Realty Corporation, CPI-Gwinnett Corporation, and JMB Realty Corporation, as owners or occupiers of realty where plaintiff Cynthia M. Thornton fell, appeal from the judgment of the trial court, after a bench trial on December 13,1999, in which they were held jointly and severally liable for $88,000 for compensatory damages and $13,302.61 for special damages. There being some evidence to support the findings of fact by the trial court, this Court cannot find that such findings were clearly erroneous. Therefore, we affirm.

On March 16,1996, plaintiff fell in a pothole in the parking lot of Gwinnett Place Mall, between Macy’s and Sears. She had not seen the pothole, because it was fall of rainwater and there were rainwater puddles all over the parking area. When she arrived, it was not raining, but before she left, a heavy downpour occurred. She and her mother waited until the rain slackened before walking to their car. Plaintiff suffered a severe fracture to her right foot when she fell. The injury was disabling and ultimately required surgery to remove bone fragments. The medical expenses caused by the injury were $13,302.61.

Evidence at trial showed that the pothole pre-existed the fall for some time because of its size. In December 1995, the owners, operators, and managers of Gwinnett Place Mall paid for the repair of potholes on Mall Ring Road and in the parking lot. Prior to plaintiff’s injury on March 16, 1996, the defendants did not conduct an inspection of the parking lot. After plaintiff’s fall, Mrs. Eunice Thornton, plaintiff’s mother, pointed out the pothole, which caused her daughter’s injury to the Mall security officer. The pothole was reported by security to the general manager of the Mall. Photographs taken two weeks after the injury showed the condition and size of the pothole.

1. The defendants contend that the trial court erred in finding that they had constructive knowledge of the existence of the large pothole. We do not agree.

A trial court’s findings in a nonjury trial shall not be set aside unless clearly erroneous. OCGA § 9-11-52 (a); Mut. Ins. Co. of N.Y. v. Dublin Pub, 190 Ga. App. 94, 95 (378 SE2d 497) (1989). The “clearly erroneous” test is the “any evidence” rule. If there is any evidence to support the findings of fact by a trial court sitting without a jury, then the appellate court affirms without interference with or disturbing such factfindings. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544 (382 SE2d 388) (1989).

The evidence showed that the pothole was deep enough for it to hold the water which hid its depth and large enough for the plaintiff to put her foot in and to catch it. In fact, the substantial size of the pothole would allow the trier of fact to reasonably infer that the hole existed for sufficient time to become enlarged to the point that it was four or more women’s shoe lengths long and wide as shown in the photographs. The pothole from the photographs appeared to be more than an inch in depth and three to four feet in circumference.

Failure to discover the defect through the exercise of reasonable care in inspecting the premises gives rise to constructive knowledge where the owner or occupier had an opportunity to discover the dangerous condition and to remedy it. Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988). However, there must be some evidence, direct or circumstantial, that indicates that the condition was allowed to exist for a sufficient time for an inspection to discover it and to remove the danger. Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980); Food Giant v. Cooke, supra at 255; Boatright v. Rich’s, Inc., 121 Ga. App. 121, 122 (5) (173 SE2d 232) (1970). Substantial passage of time may be inferred from the condition of the pothole in depth and breadth by passage of many cars over it to cause such condition as circumstantial evidence. “The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case[, i.e.,] nature of the business, size of the [premises], the number of customers, the nature of the dangerous condition, and its location.” (Citations and punctuation omitted.) Colonial Stores v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672) (1968); see also Alterman Foods v. Ligon, supra at 623. Thus, the trial judge could infer constructive knowledge from the size and location of the pothole, because any inspection would have revealed the pothole from its size and location.

The photographs taken several weeks later were identified as the same pothole without change in its condition. Further, Mrs. Thornton testified that she saw the pothole after her daughter’s fall and pointed its existence out to the Mall security officer as the cause of her daughter’s fall. Michael Lowery, the general manager of the Mall, on cross-examination, admitted that an incident report was immediately made to the general manager’s administrative assistant reporting the pothole and that it caused plaintiff’s fall.

In attempting to attack the inference of a substantial length of time for the pothole to form and reach the size shown in the photographs, the general manager gave his opinion that potholes can occur in a short period of time, i.e., overnight. Thus, the trial judge had the discretion as trier of fact to disbelieve Lowery’s opinion as a layperson as to how long the pothole took to form. Thompson v. Maslia, 127 Ga. App. 758, 764-765 (4) (195 SE2d 238) (1972). The trier of fact is not bound to believe opinion evidence. Reynolds Constr. Co. v. Reynolds, 218 Ga. App. 23, 25 (459 SE2d 612) (1995); Wilson v. Professional Ins. Corp., 151 Ga. App. 712, 713-714 (261 SE2d 450) (1979).

Although Lowery had been the general manager for the prior 11 years, there was no foundation laid as to his special expert knowledge, through training, skill, or experience to render an expert opinion on the time necessary for formation of potholes. Absent qualification as an expert witness and tender of the witness as an expert, a witness’ opinion is that of a layperson. Stephens v. State, 219 Ga. App. 881, 883 (1) (467 SE2d 201) (1996). Lowery did not testify that he had personal knowledge of pothole formation derived from personally observing pothole formation; therefore, Lowery’s opinion as to the time required to form a pothole came only from reports made to him by others and what others told to him; thus, he formulated his own opinion based upon hearsay to determine such factors and time necessary for pothole formation, which renders his opinion inadmissible so that the trial judge would not have considered such testimony. Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 200 (1) (283 SE2d 7) (1981). The opinion of a nonexpert witness may be received in evidence if: (1) he observed the matter in issue; (2) he cannot adequately state or recite the facts so fully and adequately that the trier of fact can be put completely in the witness’ place to draw the inference; and (3) the witness can testify as to the facts and circumstances upon which the opinion is based so that the factfinder can determine the opinion’s weight and credibility. Johnson v. Knebel, 267 Ga. 853, 855-857 (1), (2) (485 SE2d 451) (1997); Pride v. State, 133 Ga. 438, 440-443 (1) (66 SE 259) (1909). In this case, these were not satisfied.

“[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses” when the trial court hears the case at a bench trial. See OCGA § 9-11-52; Bell v. Cronic, 248 Ga. 457, 459 (2) (283 SE2d 476) (1981).

A pothole can literally occur overnight, depending upon the weather, traffic conditions. ... [A] huge number of vehicles . . . can hit a weak area and generate a pothole within hours. There’s really no way to tell. Although it looks like a fresh pothole, there’s evidence of previous repair work in the general area. And if there was heavy rains during the previous period, it could have occurred at any time.

Thus, the trier of fact was free to accept or to reject, in whole or in part, opinion evidence of Lowery, either as from a layperson or expert, because the weight and credibility to be given opinion evidence are within the discretion of the trier of fact, which the trial court properly did as an inadmissible opinion based upon hearsay and speculation without personal observation. Reynolds Constr. Co. v. Reynolds, supra.

2. Defendants contend that the trial court erred in admitting the photographs of the pothole taken several weeks after the injury. We do not agree.

Plaintiff testified that the photographs were of the pothole where she fell at Gwinnett Place Mall, were accurate, and were taken a couple of weeks after the injury. While on cross-examination, the plaintiff admitted that she had not seen the pothole on the day of her injury, but she knew exactly where the pothole was located in relation to Sears, the entrance, and the parking aisle to identify it.

The foundation was laid showing that it was a fair and truthful representation of what it purported to depict, and its admissibility was within the sound discretion of the trial court. McCoy v. State, 190 Ga. App. 258, 262 (6) (a) (378 SE2d 888) (1989). Whether that foundation was adequate or not was in the sound discretion of the trial court. Turner v. State, 181 Ga. App. 531 (353 SE2d 13) (1987); see also McCoy v. State, supra at 262. The trial court properly overruled the objection as to admissibility and correctly noted that any contradictions in plaintiff’s testimony as to her knowledge of the pothole went to weight and credibility and not to the admissibility of the photographs.

3. Defendants contend that the trial court erred in admitting evidence of plaintiff’s special damages and in finding such amount as special damages. We do not agree.

Where the plaintiff testifies regarding the nature of her injuries and the treatment received and her medical expenses and a treating physician testifies as to the injury, treatment, and medical bill, the trier of fact may determine that the expense was reasonable from all the facts and circumstances without a witness expressing the opinion that such expense was reasonable. Limbert v. Bishop, 96 Ga. App. 652, 655-656 (5) (101 SE2d 148) (1957); Ga. Power Co. v. Clark, 69 Ga. App. 273, 278 (c) (25 SE2d 91) (1943). The plaintiff or a member of the family or the person responsible for the care and treatment can identify medical bills for treatment, and expert testimony as to the charges being reasonable and necessary is not required. OCGA § 24-7-9; Lester v. S. J. Alexander, Inc., 127 Ga. App. 470, 471-472 (1) (193 SE2d 860) (1972).

Defendants’ real objection is that plaintiff failed to lay a proper foundation for admission of the medical expenses for the operation on her foot, because the podiatrist operated on her foot to remove numerous bone fragments that had migrated from the fracture site and to remove an unrelated neuroma in her foot at the same time as an ancillary part of the operation. “Where a party sues for damages, he has the burden of proof of showing the amount of loss in a manner in which the jury or the trial judge in nonjury cases can calculate the amount of the loss with a reasonable degree of certainty. An allowance for damages cannot be based on guess work. [Cit.]” Big Builder v. Evans, 126 Ga. App. 457, 458 (2) (191 SE2d 290) (1972). In his or her sound discretion, a trial judge can properly exclude such a medical bill from evidence for the plaintiff’s failure to segregate out the unrelated expenses from the medical expenses that were the necessary result of the tort. Lester v. S. J. Alexander, Inc., supra at 472; see also Jordan v. Hagewood, 133 Ga. App. 958, 959 (2) (213 SE2d 85) (1975).

However, in this case the trial judge heard testimony from the podiatrist who performed the surgery and who testified that the operation was necessary to remove the bone fragments and that surgery was possibly required for removal of the neuroma if injections did not work; therefore, he removed the neuroma as an ancillary procedure while he was performing the surgery. The defendants never asked the doctor in cross-examination if he charged extra to remove the neuroma and what part of the charge was for that 30-minute extra procedure or why he did the ancillary procedure.

The case of Hossain v. Nelson, 234 Ga. App. 792, 794 (4) (507 SE2d 243) (1998) requiring that a proper foundation for the medical bills be laid is distinguishable from this case in that the plaintiff there “admitted that he did not and could not compile the totals” of medical expenses caused by the tort, “[n]or did he provide specific testimony substantiating the various subtotals.” Id. at 794. Further, this was not a part of the holding of the case but dicta, telling how to deal with such issue on retrial. Here, however, plaintiff gave the total medical expenses, described the treatment, testified that the expenses were incurred as a result of the injury, were necessary, and had the treating podiatrist testify.

“Where evidence is heard by the judge alone and without the intervention of a jury, it will be presumed that the judge considered only legal and admissible evidence, unless the record clearly indicates that the contrary is true. [Cit.]” Barger v. Barger, 238 Ga. 334, 335-336 (9) (232 SE2d 567) (1977). Where the trial court alone tries the case, the presumption is that the judgment was rendered only upon competent and legal evidence before him, and even if illegal evidence was admitted, it does not require a new trial. United Rentals Systems v. Safeco Ins. Co., 156 Ga. App. 63, 65-66 (1) (b) (273 SE2d 868) (1980); Nellinger v. Atlanta Baggage &c. Co., 109 Ga. App. 863, 866 (3) (137 SE2d 566) (1964); see also Greene County v. North Shore Resort at Lake Oconee, LLC, 238 Ga. App. 236, 240 (1) (517 SE2d 553) (1999).

Decided September 20, 2000.

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Tracey Walker, for appellants.

Webb & Webb, Michael S. Webb, for appellee.

4. The defendants contend that the trial court erred in finding each of the defendants liable. We do not agree.

CFUS Properties had an office in the Mall and was the managing partner in Gwinnett Place Associates, L.P. Urban Retail Property Company managed the Mall. Gwinnett Place Associates, L.P. owned the Mall. CPI-Gwinnett Corporation was a partner in Gwinnett Place Associates, L.P. JMB Realty Corporation had a prior interest in the Mall, which was taken over by CFUS Properties but had an insurable interest in the Mall. Thus, there existed some evidence to support joint and several liability, because all the defendants had a right of possession and control over thé premises with the evidence showing none having a superior right. Scheer v. Cliatt, 133 Ga. App. 702, 704 (2) (a) (212 SE2d 29) (1975).

Since there was some evidence to support the judgment, then the appellate court should not interfere with the trial court’s judgment after a nonjury trial. Pinkerton & Laws Co. v. Atlantis Realty Co., 128 Ga. App. 662, 665 (1) (197 SE2d 749) (1973). The judgment was not clearly erroneous; therefore, it should not be set aside. Mut. Ins. Co. of N.Y. v. Dublin Pub, supra; Davis v. Hosp. Auth. of Fulton County, 167 Ga. App. 304, 305 (306 SE2d 306) (1983).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A00A2068.
    CAMARON v. THE STATE.
    (539 SE2d 577)
   Eldridge, Judge.

On January 1, 1998, the defendant hid in a stall in the women’s restroom at Lucky Breaks Pool Hall. When the victim came in, the defendant at knifepoint forced her into the stall and to remove her clothes. He attempted unsuccessfully to penetrate her vagina from the rear; fondled her breasts; digitally penetrated her vagina; and finally achieved a partial penile penetration of the victim’s vagina. The defendant took all of the victim’s clothes except for her socks. The defendant was indicted for kidnapping, rape, aggravated assault, aggravated sexual battery, possession of a knife during the commission of a felony, and sexual battery. On October 25, 1999, the defendant entered a guilty plea to all charges. On March 21, 2000, the trial court sentenced the defendant on kidnapping, rape, aggravated assault, and aggravated sexual battery to twenty years confinement to serve ten concurrently, with the balance probated, five years to serve consecutively for possession of a knife during the commission of a felony, and twelve months concurrent probation for sexual battery.

The defendant moved for the sentence to be imposed as a first offender. However, the trial court imposed a split sentence under the facts and circumstances of the case.

The defendant contends that the trial court erred as a matter of law because of the belief that the defendant was not eligible for first offender status; he contends that the trial court abused its discretion in not considering such provision when imposing sentence. However, there was no evidence that the trial court labored under the mistaken belief of law that the defendant was not eligible for first offender status or that the defendant could not be given the same time to serve in prison as a first offender. Accordingly, we affirm.

1. Defendant’s first contention is that the trial court erred “in implicitly finding that [the defendant] having pled guilty to a serious violent felony under OCGA § 17-10-6.1 was precluded from requesting and obtaining [fjirst [o]ffender treatment pursuant to OCGA § 42-8-60.” We do not agree.

On March 27, 1998, Ga. L. 1998, p. 180, § 2 became effective and prevented a superior court judge from giving first offender status to anyone guilty of a “serious violent felony.” OCGA §§ 17-10-6.1 (b); 42-8-66. Since these serious violent felonies occurred on January 1, 1998, prior to the passage of the amendment, then the prohibition of the Act had no retroactive application to the defendant to limit the discretion of the trial judge in what sentence to impose. Taylor v. State, 181 Ga. App. 199, 200 (2) (351 SE2d 723) (1986). Therefore, the trial court had no legal prohibition in imposing a sentence under the First Offender Act. Prior to March 27, 1998, OCGA § 17-10-6.1 did not deprive the trial court of the discretion to impose a sentence for a “serious violent felony” as a first offender. See Fleming v. State, 271 Ga. 587 (523 SE2d 315) (1999); Burleson v. State, 242 Ga. App. 217 (529 SE2d 228) (2000); State v. Allmond, 225 Ga. App. 509 (484 SE2d 306) (1997).

A sentence imposed under OCGA § 42-8-60 upon a defendant as a first offender lies entirely within the discretion of the trial court. Moore v. State, 236 Ga. App. 889, 890 (514 SE2d 73) (1999); Hardman v. Hardman, 185 Ga. App. 519, 520 (4) (364 SE2d 645) (1988), overruled on other grounds, Pender v. Witcher, 196 Ga. App. 856 (397 SE2d 193) (1990); Welborn v. State, 166 Ga. App. 214, 215 (303 SE2d 755) (1983). The initial sentence or a sentence upon revocation of the first offender status is within the sound discretion of the trial court and is limited only by the statutory guidelines. Mohammed v. State, 226 Ga. App. 387, 388-389 (486 SE2d 652) (1997), rev’d in part on other grounds, Bliss v. State, 244 Ga. App. 160 (535 SE2d 251) (2000); Griffin v. State, 163 Ga. App. 871 (3) (295 SE2d 863) (1982); Austin v. State, 162 Ga. App. 709, 710 (293 SE2d 10) (1982). Whether to grant probation as to all or part of any sentence is discretionary.

The trial court made no written ruling or statement on the record that indicated that the trial court believed that first offender status was not available to the defendant or what could be construed as a refusal to exercise discretion regarding first offender status. See Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993). The defendant has failed to establish this alleged error upon the record as to a belief of the trial judge in a lack of discretion. Flanigan v. State, 238 Ga. App. 296 (1) (517 SE2d 569) (1999). Absent evidence of record or evidence in the record demonstrating error, the trial court is presumed to have acted properly in imposing sentence, because the presumption of correctness overcomes any inference to the contrary absent evidence to support the inference. See Echols v. State, 231 Ga. App. 501, 502 (498 SE2d 66) (1998); Hamrick v. State, 197 Ga. App. 89, 91-92 (4) (397 SE2d 503) (1990).

2. Defendant’s second contention is that the trial court erred in refusing to consider first offender treatment for the defendant as an exercise of discretion. We do not agree.

Refusal to consider first offender treatment as part of a sentencing formula or policy by automatic denial constitutes an abuse of discretion and constitutes reversible error. Jones v. State, supra at 473. However, there must be a clear statement in the record that constitutes either a general refusal to consider such treatment or an erroneous expression of belief that the law does not permit the exercise of such discretion. Where the trial court does not engage in a mechanical sentencing formula or a failure to consider such sentencing alternative on the record, then such failure or refusal is the permissible exercise of discretion. Moore v. State, supra at 890. Neither policy, formula, nor refusal to consider the first offender option is present in this case.

In this case, upon request of defense counsel, the trial court considered such treatment, as well as the nature of the offense, the aggravating circumstances of the offense, the consequences of incarceration to the defendant, and the mental status of the defendant. While the trial court did not specifically address the request for first offender status, the trial court generally acknowledged such request. If defense counsel wanted a specific ruling upon the record, then he should have requested a ruling; otherwise, such alleged error was waived. He cannot fail to preserve an alleged error by requesting a timely ruling and now rely upon a silent record. See West v. State, 224 Ga. App. 190, 191 (2) (480 SE2d 238) (1997).

Decided September 20, 2000.

John Matteson, for appellant.

Daniel J. Porter, District Attorney, Annette S. Malena, Frank Ilardi, Assistant District Attorneys, for appellee.

The trial court chose to protect society from a violent defendant with lack of impulse control and imposed a sentence well above the minimum mandated by statute, indicating his view of the defendant as dangerous. Thus, the record is devoid of evidence that the trial court refused to consider first offender status. Moore v. State, supra at 890. Absent evidence, the trial court is presumed to have acted correctly. Echols v. State, supra at 502.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Miller, Judge.

text:
    A00A0889.
    LEONARD et al. v. DIXON.
    (538 SE2d 781)
   Miller, Judge.

Franklin Dixon’s vehicle rear-ended a vehicle stopped at a stoplight and occupied by Shiquita Leonard and Sally Emma Leonard, allegedly injuring them. The Leonards sued Dixon for negligence, which Dixon denied, testifying that some oil in the road prevented his vehicle from timely stopping. Although Dixon pled guilty to a citation for “following too closely,” the court denied the Leonards’ motion for a “partial directed verdict on the issue of negligence” and charged the jury on all the elements of negligence. The jury returned defense verdicts, and the court denied the Leonards’ motion for new trial. The Leonards appeal, arguing that under these facts the court was required to direct a verdict in their favor on negligence and should not have charged the jury to decide the issue.

1. Levine v. Choi, also a rear-end collision case, recently rejected similar arguments. Quoting Atlanta Coca-Cola Bottling Co. v. Jones, Levine reiterated:

Decided August 28, 2000

Reconsideration denied September 21, 2000

James B. Sullivan, for appellants.

In rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause. The history of the decisions of the Court of Appeals in this type of case since 1965 convinces us that these issues should be resolved ... by the jury and not by trial and appellate judges.

Thus, “without an admission of liability or an indisputable fact situation that clearly establishes liability, it is error for the trial judge to direct a verdict on the issue of liability in favor of either party.”

The Leonards contend that the undisputed facts here clearly established liability. But just as Levine held that the jury should decide the issue of negligence where the defendant testified that an unexpected cramping in her leg precluded her from stopping timely, so the jury was authorized to decide the issue of negligence here where Dixon testified that an unexpected oil spot precluded him from stopping timely.

The Leonards further contend that Dixon admitted to liability by pleading guilty to the traffic offense of following too closely. But such an admission is only one circumstance to be considered with all the other evidence in a civil action for damages and is not a conclusive showing of liability.

The court correctly denied the Leonards’ motion for a partial directed verdict and properly charged the jury to decide the issue of negligence.

2. We do not find the appeal frivolous and thus deny Dixon’s motion for sanctions under Court of Appeals Rule 15 (b).

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Swift, Currie, McGhee & Hiers, Thomas J. Mazziotti, for appellee.

       240 Ga. App. 384, 386 (2) (522 SE2d 673) (1999).

       236 Ga. 448, 451 (224 SE2d 25) (1976).

       (Citations omitted.) Supra, 240 Ga. App. at 386 (2).

       Supra, 236 Ga. at 451.

       Supra, 240 Ga. App. at 386 (2).

        Malcolm v. Malcolm, 112 Ga. App. 151, 156 (1) (144 SE2d 188) (1965).


author: Johnson, Chief Judge.

text:
    A00A1263.
    In the Interest of A. G. I., a child.
    (539 SE2d 584)
   Johnson, Chief Judge.

Nicole Irvin was placed on parole by the Department of Juvenile Justice in 1996. In December 1998, 17-year-old Irvin was recommitted to the Department because she had committed another offense, apparently a criminal trespass involving a vehicle. Irvin was pregnant, so the Department allowed her to return to her home, but eventually placed her in a maternity group home. Irvin ran away from the home, but two weeks later she was apprehended and placed in a youth detention center.

In June 1999, while still in custody, Irvin gave birth to A. G. L, who was placed in a foster home. In July of that year, the Department of Family & Children Services (DFCS) filed a petition to terminate the parental rights of Irvin and the child’s father. In August, the juvenile court issued an order finding that A. G. I. was deprived because Irvin was in custody, Irvin was not mature enough to provide for the child, and the father’s whereabouts were unknown. The court further ordered that A. G. I. be placed in the temporary custody of DFCS.

In September 1999, a final hearing on the petition to terminate Irvin’s parental rights was held, while the hearing on the father’s rights was continued until November. Irvin, who was still in custody, was taken to the courthouse, but she refused to leave the court’s holding cell to participate in the hearing. Irvin’s attorney moved for a continuance, but the court denied the motion, and the hearing proceeded without Irvin’s presence.

At the hearing, DFCS presented two witnesses. A parole officer testified about Irvin’s recommitment to the Department of Juvenile Justice in 1998 due to the trespass offense, her running away from the maternity home, her placement in the detention center, her refusal to see a doctor, her hurting her finger in a fight while in detention, her probable release from the detention center four months after the hearing, and the possibility that Irvin could be placed in an independent living and job corps program upon her release.

A DFCS caseworker then testified that while A. G. I. had been in the custody of DFCS, Irvin had seen the child one time and had provided no financial support for the child. The caseworker also testified that Irvin has another child, who lives with Irvin’s mother, but that Irvin’s mother is unable to care for A. G. I. The caseworker stated that she is unaware of any job skills which Irvin might have, and she opined that Irvin is unable to raise A. G. I. The caseworker admitted, however, that she had never actually spoken to Irvin.

Finally, the guardian ad litem did not testify, but made a brief statement to the court. He said that Irvin had had little opportunity to prove her dedication to the three-and-a-half-month-old child because she had been in custody. Nevertheless, he recommended that Irvin’s parental rights be terminated based on her poor past conduct, her conduct in the detention center, her failure to strive to improve her situation, her lack of education, and her inability to communicate effectively. The guardian did not elaborate on or provide details about any of these bases for his recommendation of termination.

The court then announced its decision that Irvin’s parental rights were terminated. The court’s final order terminating her parental rights was issued several days later.

Irvin appeals from the termination order, asserting that the court erred in holding the termination hearing without her presence in the courtroom and that there is insufficient evidence to support the court’s order. Because Irvin waived her right to be present during the hearing by refusing to enter the courtroom, the court did not err in holding the hearing in Irvin’s absence. However, the court did err in terminating Irvin’s parental rights based on the insufficient evidence offered by DFCS. The order of the juvenile court must therefore be reversed.

1. A party may waive the right to be present during trial proceedings by voluntarily absenting herself from the court. In this case, Irvin’s own lawyer, as well as two deputy sheriffs, told the court that Irvin was fully informed that the hearing was going to be held, but she refused to enter the courtroom. Under such circumstances, the court did not err in concluding that Irvin waived the right to be present during the hearing.

2. No judicial determination has more drastic significance than that of severing a parent-child relationship. Such a determination must be exercised cautiously and scrutinized deliberately. A court may therefore terminate parental rights only where there is clear and convincing evidence of parental misconduct or inability. The court determines parental misconduct or inability by finding that (1) the child is deprived, (2) the lack of parental care or control is the cause of the deprivation, (3) such lack of care or control is likely to continue, and (4) the continued deprivation is likely to harm the child.

In the instant case, the initial court order finding A. G. I. to be deprived was never appealed. So, at the later termination hearing the juvenile court was authorized to take judicial notice of that order and find that A. G. I. was deprived.

Even though the court did not err in finding A. G. I. to be deprived, the court did err in ruling that there was clear and convincing evidence of the other factors needed to find parental misconduct or inability. In determining if the child lacks parental care or control, the court shall consider various factors established by OCGA § 15-11-94 (b) (4) (B) and (C). In this case, there is no evidence of any of these factors.

In fact, in its final order, the juvenile court expressly, and correctly, found no evidence of excessive drug or alcohol use by Irvin, no evidence that she has a felony conviction, no evidence of egregious physical or emotional abuse of A. G. I. or any other child by Irvin, no evidence of injury to or death of a sibling of A. G. I. due to parental neglect, no evidence that Irvin failed to comply with a court order requiring child support, and no evidence that she failed to comply with a court-ordered plan to reunite her with A. G. I.

But the court incorrectly determined that there is a lack of parental care or control by finding that Irvin has been diagnosed with oppositional defiant behavior, that she is immature and lacks the skills to care for or support A. G. I., that Irvin’s other child is being raised by Irvin’s mother, that she failed to attend prenatal doctor appointments and ran away from the maternity group home, and that she has failed to bond with the child. While DFCS may have presented slight evidence to support some of these findings, none of the findings support a conclusion that there is clear and convincing evidence of parental misconduct or inability.

(a) Oppositional defiant behavior. In finding that Irvin has been diagnosed with oppositional defiant behavior, the court cited the initial deprivation order, which stated that there was such a diagnosis. But neither that initial order nor the two witnesses who testified at the termination hearing explained the meaning of that diagnosis. The record is devoid of any evidence describing what the behavior is or how it might limit Irvin’s parental abilities. So even though there may have been such a diagnosis, there is no evidence of a medically verifiable mental or emotional deficiency that renders Irvin unable to provide for the needs of her child.

(b) Immaturity and lack of skills. While Irvin may be immature and lack the skills to care for and support A. G. I., there was no evidence introduced at the hearing to support such findings. Neither witness testified that Irvin is immature. And there was no evidence that her purported immaturity rises to the level of being a medically verifiable emotional deficiency rendering her incapable of providing for A. G. I.

The caseworker concluded that Irvin lacks job skills and the ability to raise the child. But she provided no basis for her conclusions, and then immediately conceded on cross-examination that she had never actually spoken with Irvin. Her unsubstantiated conclusions are not clear and convincing evidence of parental inability.

(c) Other child in grandmother’s care. The mere fact that Irvin’s other child is being cared for by Irvin’s mother does not prove that Irvin is an unfit parent. In its appellate brief, DFCS claims that Irvin’s mother is raising the child because Irvin did not properly care for the child and abandoned her. First of all, we note that in its final order the court made no such findings that Irvin had failed to care for or abandoned the other child.

Secondly, while evidence concerning Irvin’s treatment of her other child certainly would have been relevant, there was no such testimony presented at the termination hearing. So instead of testimony, DFCS supports its claim on appeal by citing the guardian ad litem’s written report. The guardian, however, did not testily at the hearing, his report was not entered into evidence, and the portion of the report relied on by DFCS contains hearsay statements purportedly made by Irvin’s mother to the guardian. Thus, even if we assume that the juvenile court considered the guardian’s report, any reliance on hearsay in the report would have been error.

(d) Failure to see doctor and leaving group home. Although the parole officer testified that Irvin did not attend doctor appointments and ran away from the maternity group home, she did not explain the circumstances surrounding those incidents and made no showing that the missed appointments or the running away harmed A. G. I. The mere facts that doctor appointments were missed and that Irvin ran away do not support the court’s conclusion that she neglected A. G. I.

Decided September 21, 2000.

Amelia G. Pray, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, Sanders B. Deen, Scott P. Semrau, for appellee.

(e) Failure to bond. The finding that Irvin has failed to bond with A. G. I., while undoubtedly correct, is not an appropriate ground in this case to find parental misconduct or inability. At the time of the hearing Irvin had not had a chance to bond with A. G. I. because she had been incarcerated since before the child was born. The juvenile court even stated at the conclusion of the termination hearing that it was not basing its ruling on Irvin’s incarceration because Irvin obviously could not visit or support the child while in custody.

Based on the brief and insubstantial testimony given by the parole officer and the caseworker, there is not clear and convincing evidence of parental misconduct or inability. Absent such evidence, the juvenile court erred in taking the drastic action of terminating Irvin’s parental rights. The order of termination is thus reversed.

Judgment reversed.

        In the Interest of B. G., 225 Ga. App. 492, 493-494 (1) (484 SE2d 293) (1997); Winfield v. State, 210 Ga. App. 849, 850-851 (1) (437 SE2d 849) (1993).

       See In the Interest of F. L. S., 232 Ga. App. 100, 101 (502 SE2d 256) (1998); In the Interest ofM. G. F, 222 Ga. App. 816, 818 (476 SE2d 100) (1996).

        In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997).

        In the Interest of K. M., 240 Ga. App. 677, 679-680 (523 SE2d 640) (1999).

       OCGA § 15-11-94 (a).

       OCGA § 15-11-94 (b) (4) (A).

       See In the Interest of J. L. T., 241 Ga. App. 464, 469 (1) (524 SE2d 740) (1999).

       See OCGA § 15-11-94 (b) (4) (B) (i).

       See id.

       See In the Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979); In the Interest of J. C., 242 Ga. 737, 740-741 (3) (251 SE2d 299) (1978).

       See OCGA § 15-11-94 (b) (4) (B) (v).

       See In the Interest of K. M., supra; In the Interest of R. A., supra.

       See In the Interest of K. J., 226 Ga. App. 303 (486 SE2d 899) (1997).


text:
    A00A1628.
    MOORE v. FIRST FAMILY FINANCIAL SERVICES.
    (539 SE2d 598)
   Miller, Judge.

Seeking indigent status under OCGA § 9-15-2 (a) (1), Gloria Moore filed a pro se complaint against First Family Financial Services when First Family sought to foreclose on property she owned that was used to secure a loan. The trial court denied the filing of her complaint under OCGA § 9-15-2 (d), finding that it showed a complete absence of any justiciable issue of law or fact. We reverse.

On appeal we construe the pleadings in the light most favorable to the losing party, and pro se complaints are not held to the stringent standards of formal pleadings. And after reviewing Moore’s complaint, this Court finds she has alleged a justiciable issue of law or fact. The parties’ agreement included a payment of $218.33 to First Financial that represented a pass-through premium payment to an insurance company for credit disability insurance. Moore has alleged that First Family breached the terms of this agreement because a representative of First Family later told her that she did not have disability insurance. This authorizes the favorable inference that First Family either failed to procure for Moore the promised credit disability insurance or failed to forward the premium to the insurance company. Therefore, we reverse the trial court’s denial of Moore’s right to file such claim.

Decided September 21, 2000.

Gloria Moore, pro se.

Troutman Sanders, Alan W. Loeffler, Kevin A. Maxim, for appellee.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

        Gamble v. Diamond “D” Auto Sales, 221 Ga. App. 688 (1) (472 SE2d 446) (1996).


text:
    A00A0939.
    WILSON INDUSTRIAL ELECTRIC, INC. v. CINCINNATI INSURANCE COMPANY.
    (539 SE2d 612)
   Miller, Judge.

Cincinnati Insurance Company sought declaratory relief to determine its obligations under a general liability insurance policy it issued to Wilson Industrial Electric, Inc. John Herman, an employee of B & S Quarries, sued Wilson Industrial, alleging he was injured by a stone-cutting saw manufactured by Wilson Industrial when his foot was caught in its moving parts. The trial court granted summary judgment to Cincinnati, declaring that the insurer had no obligation under the insurance policy to defend the suit or to provide bodily injury liability coverage to Wilson Industrial due to a “products completed operations hazard” exclusion. Wilson Industrial appeals, arguing that the policy is ambiguous. We affirm.

Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Applying the de novo standard of review to an appeal from a grant of summary judgment, we must view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmoving party.

Herman was injured when his foot was caught between the rotating pinion and the rack of a stone-cutting saw manufactured by Wilson Industrial and sold to his employer, B & S Quarries. In the underlying tort action, Herman alleged the saw was defective because it was designed without a guard which would have prevented Herman’s injury. It is undisputed that the stone-cutting saw was designed and built by Wilson Industrial according to B & S Quarries’ own specifications and that Wilson Industrial did not design, sell, or install a guard for the saw.

The insurance policy’s exclusion states that “[t]his insurance does not apply to ‘bodily injury’ or ‘property damage’ included within the ‘products-completed operations hazard.’” The policy further defines the “products-completed operations hazard” as

all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned.

Another section of the policy explains that

‘Your work” will be deemed completed at the earliest of the following times: (1) When all of the work called for in your contract has been completed. (2) When all of the work to be done at the site has been completed if your contract calls for work at more than one site. (3) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project.

Wilson Industrial contends that this exclusion is ambiguous and that the failure to install the required safety mechanism rendered the saw incomplete. In support of this argument, Wilson Industrial relies on the report of a professional engineer used by Herman in the pending lawsuit against Wilson Industrial. The report explained that the cause of Herman’s injuries was the absence of a guard on the rack and pinion mechanism, the absence of warnings on the machine, and the failure to provide a manual for operation and maintenance. The report further explained that the failure to supply the saw with a guard is in direct violation of Occupational Safety & Health Administration (OSHA) regulations. Wilson Industrial argues that the guard is an essential element of the machine and that without this required safety feature, the machine was not complete by industry standards. Cincinnati replies that the policy is unambiguous and that the saw was in fact complete because guards were never an intended part of the product.

Decided September 22, 2000.

McClure, Ramsay & Dickerson, John A. Dickerson, for appellant.

“In Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms.” Our case law explains that a contract or operation is deemed completed when the work contracted for has been finished even though minor details of performance may remain. Here there was no work remaining once the saw was delivered and assembled. Moreover, the policy itself unambiguously provides that “[w]ork that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed.” Comparing the allegations of Herman’s complaint with the provisions of the policy, even if the saw needed correction, repair, or replacement in order to comply with OSHA standards, it is still complete under the plain language of the policy.

An exception to the exclusion provides that the “hazard does not include 'bodily injury’ or 'property damage’ arising out of. . . (2) the existence of tools, uninstalled equipment or abandoned or unused materials.” Even under this provision, however, the existence of such uninstalled equipment must be contemplated by the underlying contract, which is not the case here. Both parties concede that no guard was designed, requested, or sold with the saw as manufactured according to B & S Quarries’ specifications.

An unambiguous policy, as here, requires no construction, and we must give full effect to its plain terms even though they are beneficial to an insurer and detrimental to the insured. In our view, the stone-cutting saw was a completed product and therefore fell within the policy’s exclusion. The expert’s report was not competent evidence that the stone-cutting saw was not a completed product, and so Wilson Industrial failed to meet its burden under summary judgment. The court properly granted summary judgment to the Cincinnati Insurance Company.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Nall, Miller, Owens, Hocutt & Howard, Michael D. Hostetter, for appellee.

       OCGA § 9-11-56 (c).

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

       (Citation omitted.) Richards v. Hanover Ins. Co., 250 Ga. 613, 614 (1) (299 SE2d 561) (1983).

         Savannah Laundry &c. Co. v. Home Ins. Co., 189 Ga. App. 420, 421 (1) (376 SE2d 373) (1988); Hartford Accident &c. Co. v. Strain Poultry Farms, 166 Ga. App. 334, 336-337 (2) (303 SE2d 781) (1983).

       (Emphasis supplied.)

        Savannah Laundry &c. Co., supra, 189 Ga. App. at 422 (1).


text:
    A00A1043.
    A00A1046.
    JORDAN, JONES & GOULDING, INC. v. BALFOUR BEATTY CONSTRUCTION, INC. WILLIAMS-RUSSELL & JOHNSON, INC. v. BALFOUR BEATTY CONSTRUCTION, INC.
    (539 SE2d 828)
   Johnson, Chief Judge.

The architectural and engineering firms of Jordan, Jones & Goulding, Inc. (“Jordan Jones”) and Williams-Russell & Johnson, Inc. (“Williams-Russell”) entered into a venture with Balfour Beatty Construction, Inc. to design and construct improvements to a wastewater treatment plant. After encountering problems in construction, Balfour Beatty sued Jordan Jones and Williams-Russell (collectively “the engineers”), alleging that they failed to exercise reasonable care or competence in designing the improvements. Although the action against the engineers was one of professional malpractice, Balfour Beatty failed to file an expert’s affidavit with the complaint. Based on that failure, Jordan Jones moved for summary judgment and to dismiss the complaint. Williams-Russell moved to dismiss the complaint on the same grounds. The trial court dismissed the complaint against the engineers without prejudice.

The main issue in these appeals is whether the trial court should have dismissed the complaint with prejudice rather than without prejudice. In Case No. A00A1043, Jordan Jones appeals from the trial court’s order of dismissal. Williams-Russell appeals from the same order in Case No. A00A1046. Because the appeals raise the same arguments, they will be considered together.

1. A plaintiff who brings an action alleging professional malpractice must file with the complaint an expert’s affidavit. The affidavit must set forth at least one negligent act or omission and the factual basis for the claim. If the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim. A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice.

Balfour Beatty concedes that its complaint against the engineers comes within OCGA § 9-11-9.1 (a), that it was therefore required to file an expert’s affidavit with its complaint, and that it failed to do so. This Court has held that the proper consequence in such a case is dismissal of the complaint with prejudice.

Balfour Beatty argues that a 1997 amendment to OCGA § 9-11-9.1 changes this well-settled rule. Balfour Beatty points out that the former subsection (e) of OCGA § 9-11-9.1, which provided that if a plaintiff fails to file an affidavit, the complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment, was deleted in its entirety in 1997. Because the statute as amended does not include the language providing that the complaint is subject to dismissal for failure to state a claim, Balfour Beatty urges that dismissal is no longer “for failure to state a claim” and therefore is without prejudice. We disagree.

We note that the cases cited above for the proposition that dismissal is to be with prejudice were decided after the 1997 amendment was enacted. Thus, the amendment has not resulted in a change in our decisions regarding whether a dismissal under the statute is with prejudice.

In addition, the construction of a statute must square with common sense and sound reasoning. And, the language in one part of the statute must be construed in light of the legislative intent as found in the statute as a whole.

Only two subsections of amended OCGA § 9-11-9.1 mention dismissals, and they both provide that dismissal is for failure to state a claim. Subsection (b) provides that the contemporaneous filing requirement does not apply where the complaint is filed just before the statute of limitation expires and an affidavit could not be prepared; in those cases, the plaintiff has additional time in which to supplement the pleadings, and if he fails to do so within that period or by an extended deadline, and the defendant moves to dismiss based on that failure, the complaint is subject to dismissal for failure to state a claim. Subsection (d) provides that where the affidavit is defective, and the defendant moves to dismiss the complaint on that ground, the complaint is subject to dismissal for failure to state a claim, except that the defect may be cured by amendment within 30 days of service of the motion.

In construing the statute as amended, it would be unreasonable to hold that the legislature intended for complaints to be dismissed with prejudice when a defective affidavit is not timely corrected, and dismissed with prejudice when an affidavit is not filed within a certain number of days after the eleventh-hour filing of a complaint, but that complaints are to be dismissed without prejudice when the plaintiff fails to file any affidavit whatsoever. No part of the statute provides that a complaint is subject to dismissal without prejudice.

Construing the statute as a whole, we conclude that the legislature intended that dismissals for complete failure to file an affidavit would have the same effect as dismissals for failure to file a proper affidavit: each of these dismissals is for failure to state a claim. Not only is this construction consistent with common sense, it is consistent with the long line of decisions rendered by this Court holding that dismissal for failure to file an expert’s affidavit is with prejudice.

Balfour Beatty argues that subsection (e) as amended provides the only consequence for failure to file an affidavit. As amended, subsection (e) provides that where a plaintiff fails to file an affidavit and the defendant raises the issue in its initial responsive pleading, the complaint is not subject to the renewal statute after the limitation period expires, unless the plaintiff had the affidavit before filing the complaint but mistakenly failed to file it. We do not share Balfour Beatty’s interpretation of the statute.

Subsection (e) lists but one possible consequence of failing to file an affidavit. This subsection did not replace the former subsection (e), but in fact was formerly subsection (f), and was in effect alongside the former subsection (e). The consequence listed in subsection (e) as amended is completely consistent with the consequence indicated in former subsection (e): failure to file an affidavit subjects the complaint to dismissal for failure to state a claim. Nothing in the statute or in the case law indicates that the exclusive consequence for a plaintiff’s failure to file an affidavit is that he cannot file a renewal action after the statute of limitation expires.

The complaint in this case should have been dismissed on the merits. On remand the trial court is directed to vacate the judgment of dismissal without prejudice and to enter judgment of dismissal with prejudice as to the engineers.

2. In its brief and in a separate motion to dismiss, Balfour Beatty argues that the appeals are premature and should be dismissed. It contends that the “without prejudice” aspect of the dismissal order cannot be appealed because such an appeal seeks an advisory opinion as to the nature and preclusive effect of the trial court’s order. We disagree.

In its modified order, the trial court made an express determination that there is no just reason for delay and expressly directed the entry of judgment on the action filed against the engineers. The trial court’s order is a final judgment as to the engineers and is appealable under OCGA § 5-6-34 (a) (l).

Contrary to Balfour Beatty’s contention, this case does not present a request for an advisory opinion. The engineers have asked this Court to review and reverse the trial court’s decision to dismiss the complaint against them without prejudice, not to venture an opinion as to the legality of future actions which may or may not occur.

The decision in Vann v. Billingsley does not require that we reach a contrary result. One of the three judges serving on the panel in that case concurred in the judgment only, making the decision physical precedent only. In addition, the panel did not dismiss the appeal. Not only is Vann without precedential value, it is of questionable authority since the case upon which it relies, Nat. Heritage Corp. v. Mount Olive Mem. Gardens, does not clearly stand for the proposition for which it is cited. We do not read the court’s statement in Nat. Heritage — that a plaintiff should not have been required to appeal an order in a first suit — as meaning that a plaintiff could not appeal such an order.

Bearing in mind that the Appellate Practice Act is to be construed liberally so as to bring about a decision on the merits of every case appealed and to avoid dismissal, we hold that Balfour Beatty’s argument that the appeal must be dismissed is without merit.

3. Balfour Beatty’s motion for frivolous appeal penalties is denied.

Judgments in both cases vacated and cases remanded with direction.

Smith, P. J., and Phipps, J., concur.

Decided September 22, 2000.

Smith & Fleming, Kent P. Smith, George D. Wenick, Peter M. Crofton, for appellant (case no. A00A1043).

King & Croft, Terrence L. Croft, Thomas A. Croft, for appellant (case no. A00A1046).

Moye, O’Brien, O’Rourke, Hogan & Pickert, Nathan E. Minear, for appellee.

       Balfour Beatty also sued the plant’s owner. The case against the owner is still pending.

       OCGA § 9-11-9.1 (a).

       Id.

       OCGA § 9-11-9.1 (b).

       See Lutz v. Foran, 262 Ga. 819, 824 (4) (427 SE2d 248) (1993); Hodo v. Basa, 214 Ga. App. 895, 896 (1) (449 SE2d 523) (1994); ABE Engineering v. Griffin, Cochran & Marshall, 212 Ga. App. 586 (443 SE2d 1) (1994).

       See Stamps v. Johnson, 244 Ga. App. 238, 239 (535 SE2d 1) (2000); Mendoza v. Pennington, 239 Ga. App. 300 (1) (519 SE2d 715) (1999); see also Collins v. Newman, 237 Ga. App. 861, 862 (2) (517 SE2d 100) (1999) (complaint filed without expert affidavit is subject to dismissal for failure to state a claim).

        Ga. Public Svc. Comm. v. Sawnee Elec. Membership Corp., 242 Ga. App. 156, 160 (2) (529 SE2d 186) (2000).

        Alford v. Public Svc. Comm., 262 Ga. 386, 387 (1) (a) (418 SE2d 13) (1992).

       See OCGA § 9-11-9.1 (b), (d).

       See, e.g., Lutz, supra at 824; Hodo, supra.

       OCGA § 9-2-61 (a) provides, in relevant part, that when a case has been commenced within the applicable statute of limitation and the plaintiff discontinues or dismisses the same, it may be recommenced either within the original period of limitation or within six months after the discontinuance or dismissal, whichever is later.

       See generally Sommers v. State Compensation Ins. Fund, 229 Ga. App. 352, 353 (2) (494 SE2d 82) (1997); Turner v. Buhrow, 205 Ga. App. 444 (422 SE2d 678) (1992).

       See State v. Adams, 209 Ga. App. 141, 142 (2) (433 SE2d 355) (1993).

       234 Ga. App. 803 (508 SE2d 180) (1998).

       Id. at 804.

       244 Ga. 240 (260 SE2d 1) (1979).

         See Lawson v. Athens Auto Supply &c., 200 Ga. App. 609, 611 (1) (409 SE2d 60) (1991).


text:
    A00A1336.
    DIAL v. NATALIZI.
    (539 SE2d 617)
   Johnson, Chief Judge.

This appeal arises out of a car accident which occurred when Virginia Dial drove her pickup truck into the rear of a minivan driven by Marco Natalizi. Natalizi’s van had stopped in a travel lane on 1-85 a few minutes earlier. Dial sued Natalizi alleging he was negligent in stopping his van on the highway. Natalizi countered that the van had suddenly become disabled and could not be moved out of the travel lanes. The trial court granted summary judgment to Natalizi. Dial appeals, contending genuine issues of material fact remain regarding whether the van Natalizi drove was actually disabled and whether Natalizi could have moved the van out of the travel lanes and prevented the accident. We agree with Dial that genuine issues of material fact exist and reverse the grant of summary judgment.

The evidence shows that on September 10, 1996, Natalizi arrived at Atlanta Hartsfield International Airport from Italy. It was his first time visiting Atlanta, and he spoke no English. He rented a 1996 minivan with an automatic transmission, though he had never driven a car with an automatic transmission before. Natalizi drove the van onto 1-85 southbound en route to his hotel. It was 6:15 in the evening and still light outside. Traffic was heavy, but moving at about the speed limit.

According to Natalizi, he was traveling in the right-hand lane of the two-lane highway when, without warning, the minivan’s engine stalled. He was unable to maneuver the van out of the travel lane because of the engine failure, steering problems, and the fact that cars were passing him on both sides; some cars were moving into the left lane and others were traveling through a triangular “gore” area located between the right travel lane and an off-ramp. The van rolled forward before coming to a complete stop in the right lane. Natalizi testified that he kept trying to restart the van, but it would not start. He and his passengers stayed in the van. Several cars went around the van by moving into either the left lane or the gore area. Within minutes, Dial’s truck crashed into the van from the rear. Dial had been watching the traffic in front of her, but did not see the van before colliding with it.

Although it is unlawful for a driver to stop a vehicle on a controlled-access highway, an exception is made where a vehicle is disabled and it is impossible for the driver to avoid stopping and temporarily leaving the disabled vehicle in the roadway. Natalizi claims that the situation in this case comes within the exception.

In support of his motion for summary judgment, Natalizi pointed to his testimony that the van stopped running and could not be restarted, and his testimony that he could not maneuver the van off the highway because of traffic, engine failure, and steering difficulty. He also pointed to testimony from one of his passengers that the engine suddenly “stopped operating” and that Natalizi’s attempts to restart it were unsuccessful.

In opposition to the motion, Dial presented testimony from a police officer that when he arrived on the scene, the van was running and had a full tank of gas, was restarted without any problem by the tow truck driver, and was restarted on the first try hours later at the impound lot. The officer added that there was no physical evidence indicating that Natalizi had attempted to move the car out of the roadway into the adjacent gore area. Another police officer testified that the van was running moments after the accident and that it was driven onto the tow truck. The officer testified that, based on his investigation, the van was not incapable of being driven into the gore area under its own power.

Dial also presented a mechanic’s testimony that his examination of the van after the accident revealed no mechanical problems which would have caused the vehicle to stop suddenly. He was able to start the van on the first attempt. In his opinion, the only reason an engine may stop in the absence of a mechanical problem is if the driver turns the ignition off.

Dial also presented the testimony of an engineer who examined the van for the rental car company. The engineer found no evidence of a malfunction or defect, and, in his opinion, there was no evidence to support a claim that the engine failed. He stated that a vehicle might stop unexpectedly because it runs out of gas, runs into something, the driver does something wrong, or there is a vehicle problem. Based on his inspection of the van, he was able to rule out the possibility of a mechanical problem.

Dial also relied upon a statement Natalizi made to police at the scene, through an interpreter, that they were traveling in the wrong direction and were attempting “to get back to the way they were supposed to be going.” Dial says that from the evidence, it can be inferred that Natalizi, who was driving in the United States for the first time, was lost and stopped the van in order to figure out where they needed to go.

On motion for summary judgment, a finding of fact that may be inferred from, but is not demanded by, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists, provided that the circumstantial evidence may be construed consistently with the direct evidence. Summary judgment is improper when circumstantial evidence is inconsistent with the direct evidence; in such a case, a jury question is created.

In this case, the circumstantial evidence was inconsistent with the direct evidence. The direct evidence, namely, the testimony from the van’s driver and passenger, showed that the minivan’s engine stopped running and that the van could not be moved out of the travel lane. The circumstantial evidence, on the other hand, showed that the van was running at the accident scene, the van was easily restarted after the accident, two investigations revealed no mechanical problems with the engine, the engine may have stopped running because the driver turned the car off, the driver was lost and trying to figure out where to go, the driver had never driven a car with an automatic transmission, and there was no physical evidence indicating that the driver attempted to move the van into the gore area.

Because the circumstantial evidence cannot be construed consistently with the direct evidence as to whether the van was stopped in the travel lane due to mechanical problems or due to driver error, a jury question was created. Indeed, by judging the credibility of the witnesses, a jury could conclude that the inconsistent circumstantial evidence is sufficient to disprove the direct evidence submitted by Natalizi.

In view of the posture of the evidence in this case, the trial court erred in granting summary judgment to Natalizi.

Contrary to Natalizi’s contention, the decisions in Brown v. Shiver and McCubbin v. Bryant do not require a different result. In both cases this Court upheld summary judgment for a defendant who was forced to abandon a disabled vehicle in the roadway. But in neither of those cases did the plaintiff contend or show that the stopped vehicle was not disabled or that the driver could have moved the vehicle out of the roadway. Here, the plaintiff presented such evidence.

Decided September 22, 2000

Reynolds & McArthur, Charles M. Cork III, David T. Markle, Edgar L. Crossett III, for appellant.

Arrington & Hollowell, Gary W. Diamond, for appellee.

Accordingly, the trial court’s grant of summary judgment to Natalizi must be reversed.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

       OCGA §§ 40-6-203 (a) (1) (I); 40-6-204.

        Copeland, v. Houston County Hosp. Auth., 215 Ga. App. 207, 208 (450 SE2d 235) (1994).

       Id.; see English v. Crenshaw Supply Co., 193 Ga. App. 354, 360-361 (3) (387 SE2d 628) (1989).

       See generally Young v. Kitchens, 228 Ga. App. 870, 874 (3) (492 SE2d 898) (1997).

       183 Ga. App. 207 (1) (358 SE2d 862) (1987).

       197 Ga. App. 874 (399 SE2d 746) (1990).

       See id.


author: Blackburn, Presiding Judge.

text:
    A00A1454.
    KING v. THE STATE.
    (539 SE2d 614)
   Blackburn, Presiding Judge.

Following a jury trial, Leon King was convicted of robbery, armed robbery, and two counts of burglary. King appeals contending that: (1) the evidence was insufficient to support his convictions; (2) the trial court erred by admitting similar transaction evidence; and (3) he received ineffective assistance of counsel. For the following reasons, we affirm.

Viewing the evidence in the light most favorable to the jury’s verdict, Yarbrough v. State, the record shows that, on July 8, 1996, Barbara Morton was in her home watching TV when King entered her house with a gun. He robbed her of $2,100 in cash. At trial, King’s girlfriend testified that King told her he had taken $2,100 from an elderly lady.

Sixteen days later, on July 24, 1996, at 4:00 a.m., Morton heard the door to her basement kicked open and then saw King in her hallway. King grabbed her, threatened her, and took $30 in cash. Morton positively identified King at trial as the man who had robbed her on both occasions.

1. The evidence at trial supported King’s convictions of robbery, armed robbery, and burglary. “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.” OCGA § 16-7-1 (a). Morton testified that King entered her home without her consent on two occasions to rob her.

“A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another: (1) [b]y use of force; [or] (2) [b]y intimidation.” OCGA § 16-8-40 (a). Morton testified that, during the second encounter with King, he grabbed her, threw her to the floor, covered her face and mouth, and demanded money.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” OCGA § 16-8-41 (a). Morton testified that, during the first encounter with King, he put a gun to her head, grabbed both her wrists in one of his hands, and dragged her off the sofa and down the hall before taking her money. This evidence was sufficient to authorize the jury’s finding that King was guilty, beyond a reasonable doubt, of the offenses of robbery, armed robbery, and two counts of burglary. See Jackson v. Virginia.

2. In the second enumeration of error, King contends the trial court erred in allowing the admission of similar transaction testimony over his objection because the evidence was offered for inappropriate purposes and because the prior act was not sufficiently similar.

Evidence of similar transactions may be admitted if the State affirmatively shows (1) that the evidence serves an appropriate purpose; (2) the accused committed the other offense; and (3) a sufficient connection between the similar offense and the offense for which the accused is being tried such that proof of the former tends to prove the latter.

(Punctuation omitted.) Grant v. State; Williams v. State.

During a pre-trial hearing on the admissibility of the similar transaction evidence, the State informed King that a City of Atlanta police officer would offer testimony about Kang’s 1995 guilty plea for attempted burglary of the officer’s apartment, located approximately 600-1,000 feet from Morton’s home. At trial, the officer identified King as the person who had tried to kick in and pry open his door with a crowbar. Evidence of King’s guilty plea was admitted at trial.

The trial court admitted the similar transaction evidence to show identity, motive, intent, course of conduct, scheme, plan, and bent of mind. These are proper purposes for the admission of the evidence. Grant, supra. Regarding the similarity of the incidents, on appeal we focus on the similarities of the incidents rather than their differences. Quezada v. State. In this case, both acts concerned burglary or attempted burglary in which King had kicked in or attempted to kick in the victim’s door. The incidents occurred in the same neighborhood. The trial court’s determination that the earlier attempted burglary was sufficiently similar to the burglaries in the present case was not clearly erroneous. Evans v. State.

3. In the third enumeration of error, King alleges ineffective assistance of counsel. King contends that his plea of not guilty was ill-advised because his counsel did not tell him that the State intended to seek recidivist punishment and thát, consequently, if convicted he would be ineligible for parole. King declined the State’s pre-trial offer of a plea agreement to serve ten years. At the hearing on the motion for new trial, King testified that he would have accepted the plea bargain had he understood that he might have to serve more time.

An attorney’s failure to inform a defendant regarding his ineligibility for parole does not constitute ineffective assistance of counsel. Taylor v. State; Mann v. State; see Williams v. Duffy.

[Eligibility or ineligibility for parole is not a consequence of a plea of guilty, but rather is a matter of legislative grace or a consequence of the withholding of legislative grace. Williams v. Duffy, [supra]. Thus, the requirement . . . that [King] serve the maximum time provided in the sentence of the judge for this conviction! ] would have only a collateral effect on [King’s] sentence. . . . [Id.] There is no constitutional requirement that a defendant be advised of such collateral consequences for his decision to reject or accept a plea bargain to be valid.

Mann, supra at 810.

Moreover, King’s own testimony shows that he understood the ramifications of accepting the plea or proceeding to trial. King testified at the hearing on the motion for new trial that his counsel had advised him that if he accepted the plea he would have to serve all ten years due to his prior convictions. Rang further testified that counsel advised him that if he was convicted of the crimes, he would have to serve the full amount of his sentence. Under these circumstances, the trial court’s determination that King was not denied effective assistance of counsel is not clearly erroneous and will not be disturbed. Mann, supra; Taylor, supra.

Decided September 22, 2000.

Carla J. Friend, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Yarbrough v. State, 241 Ga. App. 777, 780-781 (4) (527 SE2d 628) (2000).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Grant v. State, 237 Ga. App. 892, 894 (2) (515 SE2d 872) (1999).

        Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991).

        Quezada v. State, 236 Ga. App. 718, 721 (1) (512 SE2d 401) (1999).

        Evans v. State, 235 Ga. App. 577, 579 (3) (510 SE2d 313) (1998).

        Taylor v. State, 239 Ga. App. 329 (521 SE2d 375) (1999).

        Mann v. State, 240 Ga. App. 809, 810 (1) (b) (524 SE2d 763) (1999).

        Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999).


text:
    A00A1499.
    KAUFFMAN v. EASTERN FOOD & GAS, INC. et al.
    (539 SE2d 599)
   Miller, Judge.

After purchasing goods from an Amoco food store, Richard Kauffman walked on the store’s sidewalk leading from the store entrance to a waiting vehicle parked only a few feet away in the store’s parking lot. He slipped on a three-foot patch of clear ice on the sidewalk, breaking three ribs and injuring his wrist. Alleging negligence, he sued Sam Shariff and Eastern Food & Gas, Inc. as owners of the land and store. The owners moved for summary judgment on the ground that they had no actual or constructive knowledge of the hazard. The trial court agreed, holding that the owners had no duty to discover and remove ice which naturally accumulated on their premises.

The owners presented no evidence of a regular inspection procedure other than a cleaning inspection (not for the purpose of safety) every shift change, which they could not show was actually done on the date in question. Employees were trained to periodically check the premises for safety and, if they saw some ice, to cover it with sand. Or the employees were to close off a dangerous area. Such safety inspections were to be done “randomly” or “as needed,” and “more often” in bad weather conditions. Again, the owners produced no evidence or documentation that such occurred on the date of the accident. The question on appeal is whether this evidence mandated summary judgment in their favor. We hold it did not and reverse.

1. First we address what issues are not on appeal. The summary judgment motion rested solely on the argument that the owners lacked actual or constructive knowledge of the ice patch. In its summary judgment order, the court expressly noted that the motion did not involve the issue of Kauffman’s negligence or knowledge of the ice. “The issue is whether Eastern and Shariff had actual or constructive knowledge of the ice which caused the fall.” Thus, in their main appellate briefs all parties focus on this issue.

In a supplemental appellate brief, the appellee-owners cite Gilliam v. Fletcher Bright Co. and raise for the first time the issue of Kauffman’s negligence and knowledge. Since the summary judgment motion did not assert this as an issue, Kauffman had no reason or obligation to rebut this matter by evidence or argument below. Accordingly, we do not consider the matter.

2. An owner or occupier of land is liable to invitees for injuries caused by his failure to exercise ordinary care in keeping his premises and approaches safe. This duty of ordinary care requires the owner to protect the invitee from unreasonable risks of harm of which the owner has superior knowledge and to inspect the premises to discover possible dangerous conditions of which the owner does not have actual knowledge. To recover for injuries sustained in a slip- and-fall action, therefore, the invitee must prove (1) that the owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite the exercise of ordinary care, due to actions or conditions within the control of the owner. This case focuses on the first prong.

Here there is no evidence that the owners had actual knowledge of the hazard. The question is whether evidence showed that they had constructive knowledge. Avery v. Cleveland Ave. Motel explained that the lack of a reasonable inspection procedure evinces constructive knowledge:

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. . . . Accordingly, the determinative question in this appeal is whether, viewed in the light most favorable to plaintiff, the evidence shows that [the owners] followed reasonable inspection procedures at the time of the incident.

Here the owners only showed that every eight hours a cleaning inspection was to be done, with no regular schedule for performing safety inspections. They produced no testimony or documentation that any inspections were actually done on the day in question. This is hardly plain, palpable, and undisputable proof that reasonable inspection procedures were in place, were actually followed, and were adequate to guard against foreseeable dangers at the time of the accident. Summary judgment was inappropriate.

3. Citing Columbus Doctors Hosp. v. Thompson, the owners argue that because the ice was naturally occurring and had not become an obvious hazard, they had no duty to find and remove it. Dumas v. Tripps of North Carolina, Inc., a case involving naturally accumulating ice, distinguished Columbus Doctors Hosp. as a case where summary judgment was appropriate because that plaintiff indisputably had actual or constructive knowledge of the ice hazard given the prevailing weather conditions. Here the dry roads and sidewalks do not conclusively put the invitee on notice of naturally accumulating ice on the store’s sidewalk. And Dumas then went on to hold that an owner is obligated to discover naturally accumulating ice:

[T]he accumulation of naturally occurring ice does not negate an owner’s duty to exercise ordinary care in inspecting the premises in every circumstance. Ice forming due to inevitable natural forces unaffected by human agency does not preclude examination into the question of whether or not the defendant was negligent in failing to take remedial action. . . . Absent evidence that [the owner] reasonably inspected the parking lot for defects and that the ice formation was a new defect of which [the owner] had no notice or sufficient time to correct, we cannot say as a matter of law that it complied with its duty to business invitees to keep the premises safe.

Decided September 22, 2000.

Johnson & Ward, Bruce A. Maxwell, Clark H. McGehee, William C. Lanham, for appellant.

Shivers & Associates, Eric A. Brewton, Swift, Currie, McGhee & Pliers, Thomas J. Mazziotti, for appellees.

For these same reasons, the court erred in granting summary judgment to Shariff and Eastern Food & Gas.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

       The eight-hour interval would have occurred four and one-half hours before the accident occurred.

       244 Ga. App. 315, 316 (1) (535 SE2d 325) (2000).

        Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995) (no burden on nonmovant to respond to issues not raised in summary judgment motion).

        West v. Briggs & Stratton Corp., 244 Ga. App. 840, 848, fn. 14 (536 SE2d 828) (2000); see Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337, 339 (1) (514 SE2d 684) (1999); Williams v. EMRO Marketing Co., 229 Ga. App. 468 (1) (494 SE2d 218) (1997) (physical precedent only). Moreover, even if we did consider it, Kauffman and his companion both testified that although there had been some light snow earlier in the day which had accumulated on some yards, the streets and the store’s parking lot and sidewalks appeared dry and free of ice when Kauffman approached and was at the store. Kauffman took a different route from the truck to the store than he took on his return. Under Wallace v. Nissan of Union City, 240 Ga. App. 658, 660 (1) (524 SE2d 542) (1999), summary judgment based on Kauffman’s knowledge of the hazard would have been unauthorized.

       OCGA § 51-3-1.

        Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

       Id. at 748-749 (2) (b).

       239 Ga. App. 644, 645-646 (2) (521 SE2d 668) (1999).

       (Citation and punctuation omitted.) Id.; accord Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 748 (1) (527 SE2d 36) (2000); Hartley v. Macon Bacon Tune, 234 Ga. App. 815, 818 (507 SE2d 259) (1998) (whole court); see generally Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30-31 (1) (500 SE2d 353) (1998) (whole court).

        Burnett v. Ingles Markets, 236 Ga. App. 865, 867 (514 SE2d 65) (1999).

        Avery, supra, 239 Ga. App. at 646 (2); Ingles Markets v. Martin, 236 Ga. App. 810, 811-813 (513 SE2d 536) (1999); Straughter, supra, 232 Ga. App. at 30-31 (1).

       224 Ga. App. 682, 684 (482 SE2d 705) (1997).

       229 Ga. App. 814, 816 (2) (495 SE2d 129) (1997).

       (Citations and punctuation omitted.) Id. at 816-817 (2); see Wallace, supra, 240 Ga. App. at 659 (1).


author: Pope, Presiding Judge.

text:
    A00A1605.
    COUCH v. THE STATE.
    (539 SE2d 609)
   Pope, Presiding Judge.

In this discretionary appeal, Couch appeals the judgment of conviction entered upon a revocation of first offender’s probation. Because the trial court failed to credit Couch with time already served on probation, we remand for resentencing. .

On December 16, 1993, Couch pled guilty to one count each of aggravated assault on a peace officer, violation of the Georgia Controlled Substances Act (possession of cocaine), driving under the influence, fleeing or attempting to elude a police officer, and reckless driving. He was sentenced as a first offender to boot camp plus ten years probation and a fine for aggravated assault and one year of probation to be served concurrently for possession of cocaine. He was also sentenced to three years of probation for the remaining counts, to be served concurrently.

On October 6, 1999, the State filed a petition to revoke Couch’s probation for committing the subsequent offenses of obstruction, DUI, hit and run, and failing to avoid intoxication. After a hearing, the court revoked probation based on the finding that Couch had committed the offenses of obstruction, DUI, and hit and run. The court adjudged Couch guilty of aggravated assault on a peace officer. He sentenced Couch to eighteen years with the first five years to be served followed by probation and ordered him to pay a fine and probation supervision fees. The court further ordered that the sentence was “in addition to any time [and] sentence already served.”

1. The State concedes that the court erred by failing to give Couch credit for the over six years time already served on probation. Franklin v. State, 236 Ga. App. 401, 402 (1) (512 SE2d 304) (1999). The sentence is vacated and the case remanded for resentencing.

2. Couch urges that the court erred in finding sufficient evidence of a violation of probation.

The evidence produced at the revocation hearing must establish the violations of probation by a preponderance of the evidence. OCGA § 42-8-34.1 (a). “Hearsay evidence has no probative value and is inadmissible in a probation revocation proceeding.” Goodson v. State, 213 Ga. App. 283, 284 (444 SE2d 603) (1994), applying Barnett v. State, 194 Ga. App. 892, 893 (392 SE2d 322) (1990). “Thus, such evidence is incapable of supporting a trial court’s findings whether or not objection was lodged.” Id. But if some of the allegations regarding revocation are supported by admissible evidence, the revocation decision will be affirmed. Id.

(a) Couch was charged with obstruction because he failed to come to the door of his home at the request of probation officers, and instead, he had to be captured outside at gunpoint. Couch contends that the charge was based on several hearsay statements from his wife and from the nontestifying probation officer. But, nonhearsay evidence that the officers identified themselves, that they asked Mrs. Couch about Couch’s whereabouts, that Couch did not come to the door, that she was communicating with someone at the back of the house, and that Couch was found hiding in the bushes outside the home is sufficient to support the finding by a preponderance of the evidence that Couch was obstructing the officers from their duty. See OCGA § 16-10-24 (a). But see Porter v. State, 224 Ga. App. 276, 280 (2) (480 SE2d 291) (1997) (fleeing alone is an insufficient basis for obstruction).

(b) Couch contends the charges of DUI and hit and run were not based on sufficient admissible evidence.

Mandy Dwyer testified that she was the victim of a hit and run accident. She stated that her burgundy colored car was hit by a burgundy or purple Toyota Tacoma pickup truck. A brief glimpse revealed that the driver was a white man. A bystander stopped and gave her the license tag number of the Tacoma.

Officer Thompson testified that she responded to a call about an accident in which she was given a description of the truck and the tag number. She got the same information directly from Dwyer as well. Thompson ran a check on the license number and found that the defendant was the owner of a Toyota Tacoma pickup. She went to his residence about 45 minutes after the accident, found a purple Tacoma in the driveway with damage on the driver’s side bumper, and knocked on the door. Mrs. Couch invited the officer in, and Thompson woke up Couch and read him his Miranda rights. Couch agreed to talk, said that he had had a couple of beers, admitted driving, but denied being in an accident. He gave off a strong odor of alcohol, had bloodshot, watery eyes, was disoriented, had slurred speech, and failed field sobriety tests. He was placed under arrest for driving under the influence and hit and run, was read the implied consent card, and refused to take a state-administered chemical test of his breath. Examination of the bumper of Couch’s truck revealed “red paint flecks.”

Couch argues that the license tag number was inadmissible double hearsay. But “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. Here, the bystander arrived on the scene immediately after the accident and gave Dwyer the tag number of the truck; the statement was part of the res gestae. See, e.g., Super Discount Markets v. Coney, 210 Ga. App. 659, 661 (4) (436 SE2d 803) (1993). And, the statement by the officer that the victim told her the tag number is not hearsay because the victim testified to making the statement at trial. Identification of Couch as the driver based on the license tag number was corroborated by the fact that he and his truck fit the description given by the victim and the truck had damage at the place described by the victim. The evidence was sufficient to support probation revocation based on hit and run. OCGA § 40-6-270.

Couch argues that there was no admissible evidence of intoxication because Officer Thompson is not certified in field sobriety testing, and the officer who performed the sobriety tests did not testify. However, Couch’s statement that he had been driving and had had a couple of beers, together with Thompson’s direct observation of Couch’s condition, was sufficient under a preponderance of the evidence standard to support probation revocation based on the charge of driving under the influence. OCGA § 40-6-391 (a) (1). See, e.g., Deering v. State, 244 Ga. App. 30, 31-32 (1) (535 SE2d 4) (2000).

3. Couch next contends that he was not given sufficient notice of the charges against him and that therefore he was deprived of due process as guaranteed to him under both the U. S. and Georgia Constitutions. However, Couch did not raise this issue below, and therefore there is nothing for us to review. “This Court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised and determined in the trial court.” Clark v. State, 236 Ga. App. 153, 155 (2) (510 SE2d 907) (1999).

Decided September 22, 2000.

Spix, Krupp & Reece, Mark V. Spix, Bruce S. Harvey, for appellant.

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

Couch’s argument that he can only be sentenced to two years under OCGA § 42-8-34.1 is not enumerated as error and is not before us. See also State v. Wiley, 233 Ga. 316, 318 (210 SE2d 790) (1974) (“No former adjudication of guilt having been made and no prior sentence having been entered thereon, the defendant is subject to receive any sentence permitted by law for the offense he has been found guilty of committing.”).

Judgment affirmed.

Sentence vacated with direction.

Miller and Mikell, JJ, concur.