text:
    A93A0101.
    MOORE v. THE STATE.
    (430 SE2d 835)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, with theft by taking in that she “did unlawfully take one bottle of Benadryle Elixir, and one bottle of Tylenol Elixir, the property] of Winn Dixie valued at $6.85, with the intention of depriving said owner of said property[.]” The evidence adduced at a bench trial revealed that defendant concealed two bottles of cough syrup in her purse or in her clothing while shopping at a Winn Dixie grocery store in Douglas, Georgia.

Defendant was found guilty of theft by taking. This appeal followed. Held:

Defendant asserts the general grounds, arguing there is insufficient evidence to authorize a finding that she appropriated the store’s property via concealment.

“A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16-8-2. “Larceny is completed when there is an asportation, however slight, and although the goods are not removed from the land of the owner. Stanley v. State, 97 Ga. App. 828 (104 SE2d 591).” Hawkins v. State, 130 Ga. App. 277 (1) (202 SE2d 837).

In the case sub judice, William Glen Moran III, a manager at the Winn Dixie grocery store in Douglas, Georgia, testified that he observed defendant take two bottles of medicine (“Tylenol and Dimmetap cough syrup”) from a shelf, carry the medicine to the soft drink aisle and then begin moving her hands “like she was putting something in somewhere. . . .” Moran testified that he could not view defendant’s hands from his perspective, but that when defendant “come up with her hands the merchandise was gone.” Moran testified that he immediately checked the area of the soft drink aisle where defendant was standing and that he did not find the medicine he saw defendant carrying a few moments earlier. Moran further testified that he followed defendant, keeping “her in eyesight all the way to the cash register,” and that defendant turned and fled (“a fast paced walk”) into the store as he and another store manager watched her in the check-out line. Carl Leyse, the other store manager, testified that he observed defendant flee into another part of the store from the check-out line; that he observed a Winn Dixie employee follow defendant and that he observed the pursuing store employee retrieve the type of medicine defendant was seen carrying earlier on a shelf (designated for baby diapers) adjacent to defendant’s path of flight. Leyse testified that he stopped defendant and asked, “ ‘What are you doing?’ ” Defendant responded, “ T ain’t stole no damn things and I’m going to sue you[.]’ ” This evidence is sufficient to authorize the trial court’s finding that defendant assumed control of Winn Dixie’s merchandise by concealment and that defendant is guilty, beyond a reasonable doubt, of theft by taking as alleged in the accusation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Decided April 9, 1993.

Dewey N. Hayes, Jr., for appellant.

Rebecca L. Sims, Solicitor, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A0508.
    WILLIAMS v. THE STATE.
    (431 SE2d 130)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of violating Georgia’s Controlled Substances Act, possession of cocaine with intent to distribute. Defendant was sentenced to life in prison pursuant to OCGA § 16-13-30 (d). This appeal followed. Held:

1. Defendant challenges the sufficiency of the evidence.

“ ‘On appeal the evidence must be viewed in a light most favorable to the prosecution. August v. State, 180 Ga. App. 510 (1) (349 SE2d 532) (1986).’ Marks v. State, 192 Ga. App. 64 (1) (383 SE2d 626).” Bowers v. State, 195 Ga. App. 522 (1) (394 SE2d 141). In the case sub judice, Deputy Tony Gillette of the Camden County Sheriff’s Department testified that at about 6:45 on October 4, 1990, he apprehended defendant after a foot-chase from an area where drug-related arrests were common. Deputy Gillette testified that defendant dropped “a pill bottle and [two] match boxes . . .” containing 42 small pieces and one large piece of a substance which appeared to be “crack cocaine.” James W. Campbell, Jr., a forensic chemist for Georgia’s Crime Laboratory in Savannah, Georgia, testified that the substances dropped by defendant during the chase weighed seven grams and contained cocaine. Deputy Rob Mastroianni of the Camden County Sheriff’s Department estimated the street value of the cocaine dropped by defendant to be between $800 and $1,000. Defendant admitted on cross-examination that he was carrying about $280 in cash at the time of his arrest and that he was then unemployed. This evidence was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of possession of cocaine with intent to distribute in violation of Georgia’s Controlled Substances Act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Bowers v. State, 195 Ga. App. 522 (1), supra.

2. Defendant contends “[t]he trial court erred in allowing the State to re-open evidence to allow Officer Gillette to re-testify.”

During deliberation, the jury asked “to review the transcript dealing with the retrieving of the package thrown by [defendant].” The trial court informed counsel that he was “going to allow Mr. Gillette to re-testify.” Defense counsel objected “on the grounds that this would overemphasize Officer Gillette’s testimony.” The State’s attorney then suggested “either . . . reopening and recalling Mr. Gillette or having the previous testimony replayed.” The following then transpired: “THE COURT: Which do you desire, Mr. Urquhart? [DEFENSE COUNSEL]: Neither, Your Honor, on the grounds that either way, the testimony either on the tape or new testimony from Officer Gillette, would overemphasize his testimony over that of other witnesses. THE COURT: Well I’ve made the decision to let Mr. Gillette re-testify, to re-open and let him testify, and to give you an opportunity to cross-examine, to give you a better chance than just playing the transcript to cross-examine him.”

Decided April 9, 1993.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, C. Keith Higgins, Assistant District Attorney, for appellee.

“It has been recognized for more than a hundred years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations. Byrd v. State, 237 Ga. 781, 782 (229 SE2d 631).” Evans v. State, 148 Ga. App. 422, 423 (3) (251 SE2d 325). Further, “ ‘[i]t is well-established that the matter of re-opening the evidence is within the sound discretion of the trial court. (Cit.)’ Castell v. State, 250 Ga. 776, 791 (301 SE2d 234) (1983). [The Georgia Supreme Court has] held that, even after jury deliberations have begun, the trial court, in the sound exercise of discretion, may reopen the evidence and allow the admission of new evidence. State v. Roberts, 247 Ga. 456 (277 SE2d 644) (1981).” Childs v. State, 257 Ga. 243, 253 (18), 255 (357 SE2d 48). The circumstances of the case sub judice do not reveal an abuse of the trial court’s discretion in re-opening the evidence and allowing Deputy Gillette to testify. This enumeration is without merit.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0332.
    WILEY v. FAMILY DOLLAR STORE OF SWAINSBORO, GEORGIA, INC.
    (430 SE2d 839)
   McMurray, Presiding Judge.

Emma N. Wiley filed a personal injury action against Family Dollar Store of Swainsboro, Georgia, Inc. (“Family Dollar”) and Family Dollar’s landlord, James B. Mason, alleging that she “fell outside the entrance to [Family Dollar’s retail establishment] in an area where the sidewalk and pavement were uneven and maintained in a dangerous condition.” Family Dollar denied the material allegations of the complaint and filed a motion for summary judgment.

Early in the afternoon on November 17, 1990, Emma Wiley parked outside Family Dollar’s retail establishment in Swainsboro, Georgia, walked up an asphalt ramp and across a concrete sidewalk and entered the store’s only public entrance. She later exited the store, carrying a purse and “bags” of merchandise. She then stopped on the concrete sidewalk just outside the store entrance, scanned the parking lot for traffic and, after observing no traffic danger, directed her “attention [to] getting to [her] car and walking.” After two steps, Ms. Wiley lost her balance and fell on the asphalt ramp leading to the store’s public entrance.

After the fall, Ms. Wiley observed a gap or seam (about one inch in width) between the asphalt ramp and the concrete sidewalk and concluded that she fell after tripping on this “crack.” Ms. Wiley “looked where [she] was stepping, but. . . didn’t see no crack [before the fall].”

The trial court granted Family Dollar’s motion for summary judgment. This appeal followed. Held:

“It is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a ‘static’ defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved. See Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28) (1986); Emory University v. Duncan, 182 Ga. App. 326 (2) (355 SE2d 446) (1987).” Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147). In the case sub judice, it is undisputed that the “crack” which allegedly caused Ms. Wiley’s fall was in plain view on the day of the fall and that it was then about one inch in width, i.e., just wide enough for “a cigarette butt [to] go in between [the asphalt and the concrete].” It is also undisputed that Ms. Wiley visited Family Dollar’s store between 700 and 800 times before the fall (successfully traversing the outside ramp from 1,400 and 1,600 times) and that she successfully negotiated the seam which allegedly caused her fall shortly before the fall. “ ‘When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. (Cits.)’ Rossano v. Am. Legion Post No. 29, 189 Ga. App. 610, 612 (376 SE2d 698) (1988).” Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379).

Ms. Wiley argues that she did not see the “crack” which allegedly caused her fall because she was distracted by vehicular traffic in the parking lot outside Family Dollar’s store. “ ‘The distraction theory may apply even when the injured party has prior actual knowledge of the existence of a defective condition. (Cits.) A possible confrontation with vehicular traffic on the property may be a significant “distraction” for a pedestrian-invitee on the premises.’ Shackelford v. DeKalb Farmers’ Market, 180 Ga. App. 348, 351 (349 SE2d 241) (1986). See also Globe Oil Co., USA v. DeLong, 182 Ga. App. 395 (1) (356 SE2d 47) (1987).” Magee v. Federated Dept. Stores, 187 Ga. App. 620, 621 (371 SE2d 99).

Decided April 12, 1993.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Mark C. Wilby, Rountree, Cadle & McNeely, Jerry N. Cadle, for appellee.

In the case sub judice, Ms. Wiley testified in a deposition that she observed no danger from traffic immediately before the fall and that her attention was then directed exclusively to “getting to [her] car and walking.” This testimony refutes any claim that Ms. Wiley was distracted by concerns over traffic hazards immediately before the fall. Consequently, we cannot say the trial court erred in granting Family Dollar’s motion for summary judgment.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Blackburn, Judge.

text:
    A93A1015.
    TAYLOR v. ATLANTA CENTER LIMITED.
    (430 SE2d 841)
   Blackburn, Judge.

The appellant, Betty L. Taylor, brought the instant negligence action against the appellee, Atlanta Center Limited, a Georgia Limited Partnership d/b/a Atlanta Hilton Towers, and others, as a result of serious injuries she sustained to her head and shoulders on January 1, 1986, while a guest of the appellee’s hotel. The appellee responded and admitted that a hotel patron dropped a broom from the seventeenth floor of the atrium which struck the appellant and caused her injuries, but denied liability and other material allegations of the complaint. The appellee subsequently moved for summary judgment in its favor, and the grant of the motion by the trial court was subsequently reversed by this court. In its decision of May 30, 1991, this court found that the appellee failed to negate at least one element of appellant’s claim, i.e., that the appellee failed to exercise the requisite degree of care and skill in keeping its hotel premises safe, and therefore genuine issues of material fact remained as to the appellee’s foreseeability of the type of criminal conduct which caused appellant’s injuries and as to the adequacy and non-negligent utilization of appellee’s security.

The appellee renewed its motion for summary judgment, and in support of the motion, submitted the affidavits of Bruce Bassett, the director of security on the date of the incident. In granting appellee’s second motion for summary judgment, the trial court found that the appellant failed to present any evidence which indicated that the appellee’s security measures fell below reasonable security standards such as to constitute a breach of appellee’s duty of care to the appellant, and this appeal followed.

Construed most favorably to the appellant, the record reveals that on January 1, 1986 at approximately 1:30 a.m., the appellant, her husband and another couple returned to the appellee’s hotel from a dinner dance and breakfast. The appellant, along with her husband and another couple, had checked into the hotel on the previous evening. Immediately before the incident, the appellant and the couple were standing near the guest elevator in the crowded hotel lobby waiting for the appellant’s husband to join them. Shortly after the arrival of the appellant’s husband, the appellant was hit on the head by an object later identified by security personnel as a broom similar to those used by the hotel’s housekeeping department. The appellant was subsequently taken to the emergency room at a local hospital, where her head wound was sutured. According to a report made by security personnel after the incident, a security guard saw one of the hotel’s patrons toss the broom over the balcony into the atrium area. The patron was apprehended by the security department and later arrested by the Atlanta Police Department.

In his initial affidavit submitted by the appellee in support of its renewed motion for summary judgment, Bassett indicated that there had never been any incident at the hotel where someone was similarly injured. He was further unaware of any incident where an individual threw an object from the balcony of any of the upper floors in the hotel. Although he had initially indicated that on the morning that the appellant had been injured, there were 26 security officers on duty, approximately 19 more officers than usual, upon his review of the time records of the security officers, he realized that there were only 14 officers on duty at the time of the appellant’s incident. However, in his opinion, the number of security officers on duty was more than adequate to take care of the needs of the patrons. On the morning in question, the officers had been placed in strategic locations around the hotel to detect and avoid any dangerous condition that could result in injury to any guest. Before this incident, the security department did not have any notice that the hotel patron was behaving in a rowdy manner, had possession of the broom, or was likely to endanger the safety of anyone. In his deposition, Bassett acknowledged that New Year’s Eve is a busier time than usual for the hotel, and consequently, security is increased as a standard operating procedure. Normally, only five to seven security officers are on duty at the appellee’s hotel. “Undertaking measures to protect patrons does not heighten the standard of care; and taking some measurés does not ordinarily constitute evidence that further measures might be required. In all cases, a landowner is not required to do more than is reasonable for the protection of invitees.” Lau’s Corp. v. Haskins, 261 Ga. 491, 494-495 (405 SE2d 474) (1991).

In response to the appellee’s initial motion for summary judgment, the appellant submitted a copy of the complaint filed by a guest of the appellee’s hotel who had been assaulted by several individuals in a guest elevator. The appellant also submitted the affidavit of the assistant security director at the time of the 1983 incident. Other than the deposition of Bruce Bassett, the appellant did not submit any additional evidence in response to the appellee’s renewed motion for summary judgment.

In her sole enumeration of error, the appellant contends that the trial court erred in granting the appellee’s motion for summary judgment as material issues of fact remained as to whether or not the appellee: exercised the requisite degree of care and skill in keeping its hotel premises safe, maintained an adequate number of security personnel on duty at the time of appellant’s injury, and deployed its security personnel in a non-negligent manner.

“ ‘A proprietor’s duty to invitees is to exercise ordinary care in keeping the premises and approaches safe. . . .’ [Cits.]” Woods v. Kim, 207 Ga. App. 910 (429 SE2d 262) (1993). “Although a business proprietor is not an insurer of the safety of its patrons, [cit.], a proprietor ‘has a duty, when he can reasonably apprehend danger to a customer from the misconduct of other customers- or persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct.’ [Cit.]” Adler’s Package Shop v. Parker, 190 Ga. App. 68, 69 (1) (378 SE2d 323) (1989). “ ‘[Unforeseen and unexpected acts particularly those mala in se perpetrated by third parties on the proprietor’s premises do not activate liability by the proprietor . . . (unless) it is shown that the proprietor has reasonable grounds for apprehending that the very type criminal act which resulted in injury to his guests is reasonably likely to occur. (Cit.)’ [Cit.] ‘ “Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.” (Cit.)’ [Cit.]” Id. at 69. “Evidence of prior criminal acts may be admitted to establish that the landowner was on notice that his patrons were subject to the risk of criminal assault, provided that the circumstances surrounding the prior acts were ‘substantially similar’ to those surrounding the acts- on which the suit is predicated.” Grandma’s Biscuits v. Baisden, 192 Ga. App. 816, 817 (1) (386 SE2d 415) (1989).

There can be no liability of a proprietor based solely upon the unauthorized and wrongful use of personal property of the proprietor by a party unrelated to the proprietor which misuse results in injury to an invitee, where each of the following is present: (1) such personalty is not inherently dangerous; (2) such personalty is reasonably situated or stored by the proprietor; (3) such property is removed from its location or storage area by an unauthorized person or for a wrongful purpose; (4) such wrongful conduct is not reasonably foreseeable by the proprietor; or, even if foreseeable, is not of such a nature as to reasonably allow the proprietor to intercede, warn its invitees, or otherwise act to prevent injury to same.

“To prevail at summary judgment under OCGA § 9-11-56 [(c)], the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, supra at 491.

In the instant case, the appellant has not presented any evidence to rebut the appellee’s showing that the occurrence of this type of assault against the appellant was not foreseeable. Although the appellant presented evidence of an assault against a hotel guest in an elevator which occurred three years earlier, this incident is irrelevant because it is not substantially similar to the type of assault that occurred in this case. See Savannah College of Art & Design v. Roe, 261 Ga. 764 (409 SE2d 848) (1991). It is undisputed that, before the appellant was struck with the broom, the appellee was unaware that the patron was behaving in an inappropriate manner, had possession of the broom or was likely to injure another guest by throwing an object over the balcony. In addition, a broom is not an object which is ordinarily considered by a reasonably prudent person as dangerous per se and there is no evidence that the broom was maintained by the hotel in a place outside of its normal location for safekeeping. Hotel premises contain many ordinary objects which are readily accessible to patrons and other persons and which could be used for an unforeseen criminal purpose. To impose liability upon a proprietor simply because of such criminal misuse of an ordinary object, as advocated by the appellant, would be tantamount to making a proprietor an insurer, and as discussed above, that is not the duty of a proprietor.

Decided April 12, 1993.

McNally, Fox & Cameron, Philip P. Grant, for appellant.

Duncan & Mangiafico, Edgar S. Mangiafico, Jr., Leslie P. Becknell, for appellee.

Although it is undisputed that the appellee did not have knowledge of any prior similar acts which knowledge would create an initial duty to provide preventive security measures, the appellee in fact did provide security personnel for the' safety of its guests. “ ‘Accordingly, even assuming that there might otherwise have been no initial duty to provide security to (invitees) such as (appellant), (appellee) having undertaken that very duty, was required to perform it in a non-negligent manner.’ ” Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 877 (3) (392 SE2d 535) (1990). The appellant has not presented any evidence that any security efforts undertaken by the appellee failed to conform to the appropriate standard of care. On the contrary, the security staff was doubled on the date of the appellant’s incident and the director of security indicated that the officers were placed in strategic locations in an effort to insure the safety of the guests. The director further opined that the number of security officers on duty was sufficient.

Based on the above undisputed facts and the appellant’s failure to provide evidence giving rise to a triable issue, we conclude that the appellee was entitled to summary judgment adjudication as a matter of law, and the decision of the trial court is without error.

Judgment affirmed.

McMurray, P. J., concurs. Johnson, J., concurs in judgment only.


text:
    A93A1042.
    TIMELY ENTERTAINMENT INTERNATIONAL, INC. et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    (430 SE2d 844)
   Blackburn, Judge.

The appellants commenced this declaratory judgment action seeking a determination that State Farm Fire & Casualty Company (State Farm) was obligated to provide coverage for a motor vehicle collision involving an automobile insured under an automobile insurance policy it issued. The trial court granted summary judgment for State Farm, and this appeal followed.

In July 1988, State Farm issued the policy to Timely Entertainment International, Inc. (Timely), who successively renewed the policy every six months until early 1991. By custom and practice, the parties used January 8 as the due date for payment of the first half of the premium due, and April 9 as the due date for payment of the second half. The policy was again renewed on January 8, 1991, but when no premiums were received when due, State Farm notified Timely that the policy would be cancelled, effective January 31, 1991, because of that nonpayment of the premium.

On February 13, 1991, Timely submitted payment of $295.44, representing one-half of the total semi-annual premium of $585.24, and State Farm reinstated the policy, excluding coverage from January 31, 1991, through February 12, 1991. With that payment, premiums were current through April 8, 1991. However, on April 9, 1991, not having received the remaining $249.68 of the semi-annual premium, State Farm again notified Timely of the cancellation of the policy, effective April 22, 1991, due to nonpayment of the premium.

The automobile insured under the policy was involved in a collision on April 27, 1991, and on April 29, 1991, Timely submitted payment of the remainder of the premium. State Farm again reinstated the policy, excluding coverage from April 22, 1991, through April 28, 1991, and later refunded $22.81 as a credit for that period of time when coverage was out-of-force. When the appellants were sued over the automobile collision of April 27, 1991, State Farm refused to defend and indemnify under the policy on the grounds that no coverage was in effect at the time of the incident, and that was the basis of the trial court’s grant of summary judgment for State Farm.

OCGA § 33-24-44 (d) provides, in pertinent part, that “[w]hen a policy is canceled for failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums for a policy or any installment of premiums due . . . the notice requirements of this Code section may be satisfied by delivering or mailing written notice to the named insured ... at least ten days prior to the effective date of cancellation. . . .” (Emphasis supplied.) “The notice requirements of the statutes regarding cancellation of insurance policies are mandatory and require strict compliance and failure to adhere to the requirements results in noncancellation of the policy.” Pennsylvania Nat. &c. Ins. Co. v. Person, 164 Ga. App. 488, 490 (297 SE2d 80) (1982). See also American Intl. Life Ins. Co. v. Hartsfield, 147 Ga. App. 213 (248 SE2d 518) (1978).

A purported notice of cancellation (for nonpayment of premium) sent before the premium is due merely constitutes a demand for payment, and is ineffective to cancel the policy. Pennsylvania Nat. &c. Ins. Co. v. Person, supra. The appellants contend that the notice of cancellation mailed on April 9, 1991, the actual date the remaining premium was due, similarly was premature and thus ineffective to cancel the policy from April 22 through 28, 1991.

However, “[w]e think if a debt is due, it can be truly said it has become due; and that if a demand be made whilst it is due, the demand is made after it became due. Nothing can be due which has not become due; becoming is before being, and becoming must be finished in order for it to be succeeded by that which becomes. ... So, every debt is becoming due or has become due; the moment of time which by expiring terminates immaturity renders the debt mature; there is no intervening moment; immaturity vanishes and maturity appears; to demand payment of the debt in the first moment of its matured existence, is to demand payment after it becomes due. . . . Hence, ‘at maturity,’ ‘when due,’ ‘after due,’ applied to demand for payment, will each include a demand made on the day of maturity, though the last will comprehend as well a demand made on any subsequent day. . . .” (Emphasis supplied.) Favors v. Johnson, 79 Ga. 553, 555-556 (4 SE 925) (1887). In the instant case, the notice of cancellation was mailed on the date when payment of the remainder of the premium was in fact due, and thus matured, and was not premature.

We note further that the appellants themselves state that one purpose of the notice statute is to prevent insurers from sending cancellation notices before paid-up premiums are earned. Inasmuch as the paid-up premium in this case was completely earned by April 8, 1991, State Farm’s mailing of the cancellation notice on the following day did not defeat that purpose.

The appellants also contend that when State Farm reinstated the policy in February 1991 following its receipt of the late payment of one-half of the total premium, the due date of the other half of the premium was extended from April 9, 1991, until April 21, 1991, because State Farm failed to refund a portion of the premium for the 12 days excluded from coverage at the time of that reinstatement. However, as noted by the trial court, the appellants overlook the fact that the $249.68 premium billed for the second half of the six-month renewal period actually reflected a credit or discount for those twelve days excluded from coverage. Accordingly, the due date for payment of the remaining premium was not extended.

In summary, it is undisputed that State Farm mailed its notice of cancellation on April 9, 1991, the day the remainder of the renewal premium was due; the notice was given at least ten days before the effective date of cancellation on April 22, 1991; and that the named insured, Timely, received that notice. Under these circumstances, as a matter of law, the policy was out of force at the time of the claimed automobile collision, and the trial court properly granted summary judgment for State Farm.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Decided April 12, 1993.

Lokey & Bowden, Peter K. Kintz, for appellants.

Harper, Waldon & Craig, Thomas D. Harper, for appellee.


author: Johnson, Judge.

text:
    A93A0090.
    HINES v. THE STATE.
    (431 SE2d 137)
   Johnson, Judge.

Richard Hines was convicted of two counts of child molestation in connection with offenses against the three-year-old daughter of his girl friend. He appeals his conviction and denial of a motion for a new trial.

1. Hines asserts that the trial court erred by refusing to strike a prospective juror for cause. The record does not contain a transcript of the voir dire proceedings. “Absent a transcript, this court can only presume that this portion of the trial was conducted in a regular and proper manner. When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter.” (Citations and punctuation omitted.) Reedman v. State, 193 Ga. App. 688, 689 (2) (388 SE2d 763) (1989). This enumeration, therefore, presents nothing for review.

2. Hines’ argument that the trial court erred in denying his motion for a new trial on sufficiency of the evidence grounds is without merit. The victim, her sister, baby brother, mother and Hines shared one bedroom. Hines testified that he had been drinking all day and had been arguing with the victim’s mother. The victim’s mother told the investigating officer that when she entered the bedroom, she did not see the victim on the lower bunk where she normally slept, but in the upper bunk with Hines. She pulled back the covers and saw that both Hines and the victim had their pants pulled down. The victim, who was five years old at the time of the trial, testified that she could not remember anything happening between herself and Hines. But in a videotape made near the time of the incident, admitted into evidence and reviewed by this court, the victim testified that Hines pulled down her pants, put his penis between her legs and put his finger inside her, indicating by gesture, her vagina. Reviewing the evidence in a light most favorable to the jury’s verdict ample evidence exists from which a rational trier of fact could have found beyond a reasonable doubt that Hines was guilty of the offenses of child molestation of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.

Decided April 13, 1993.

Louis M. Turchiarelli, for appellant.

Garry T. Moss, District Attorney, Cecelia V. Moutoux, Assistant District Attorney, for appellee.


text:
    A93A0281.
    PROPER v. THE STATE.
    (431 SE2d 133)
   Johnson, Judge.

A jury found John Proper guilty of one count of child molestation and one count of sexual battery arising out of two separate incidents involving his eight-year-old stepdaughter. Proper appeals from his conviction and the denial of his motion for a new trial.

1. Proper alleges that the trial court erred in granting the state’s motion in limine excluding any reference to a previous incident of molestation which did not involve him. Proper sought to have the earlier incident admitted to support his theory that the victim was “confusing” the events. In Hall v. State, 196 Ga. App. 523 (396 SE2d 271) (1990) the state filed a similar motion in limine seeking to prevent the introduction of evidence of a prior unrelated molestation. The defendant in that case sought introduction of the evidence, not to show the victim’s reputation for nonchastity or preoccupation with sex, but to establish other possible causes for the behavioral symptoms exhibited by the child. In reversing the trial court and carving out an exception to the long-standing rule barring introduction of evidence of prior sexual conduct established in Deen v. State, 216 Ga. 387 (116 SE2d 595) (1960), this court held: “Testimony regarding the syndrome and all the child’s symptoms and injuries having been properly admitted, the evidence regarding other possible causes of her behavior and injuries was necessary to prevent the jury from reaching the unwarranted conclusion that the only possible explanation for the medical findings and the existence of behavior consistent with the child sexual abuse accommodation syndrome was that the victim had been molested by appellant.” Hall, supra at 525. In this case Proper urges us to expand the exception created in Hall, arguing that the evidence should have been allowed to explore whether the victim was confused.

Decided April 13, 1993.

McCamy, Phillips, Tuggle & Fordham, Stephen A. Williams, Robert H. Smalley III, for appellant.

Jack O. Partain III, District Attorney, David W. McLeod, Assistant District Attorney, for appellee.

The child testified at trial that while in her parents’ bed, Proper fondled her vagina, placed his penis between her legs, and tried to place his penis in her mouth. She also testified regarding an incident when Proper had rubbed her between her legs while she was lying on the sofa. During cross-examination, defense counsel had the opportunity to explore his theory that the victim was confused about the events forming the allegations in the case. Because a mechanism for pursuing his theory was already available, we find no reason to expand the limited exception created in Hall, supra.

2. Proper also alleges that the court erred in charging that the law requires “equal” theories to support an acquittal in regard to cases of circumstantial evidence. This charge was approved in Fleming v. State, 137 Ga. App. 805 (1) (224 SE2d 792) (1976). It is also the pattern charge. It must also be noted that there was both direct and circumstantial evidence presented in this case. The complained-of charge would have been more appropriate in a case which relied solely on circumstantial evidence. “Nevertheless, the charge can only be considered as beneficial to the defendant.” Id. at 806 (1). We find no error with the charge as given.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.

       Though not raised as an issue in this appeal, we note that sexual battery is not a lesser included offense of child molestation as a matter of law. See Teasley v. State, 207 Ga. App. 719 (429 SE2d 127) (1993). Therefore, in a case such as this where the defendant is indicted only for child molestation, there would never be any reason for the court to charge the jury on sexual battery as a lesser included offense. Such a charge would be error.


text:
    A93A0328.
    JONES v. THE STATE.
    (431 SE2d 136)
   Johnson, Judge.

Billie Jones pled guilty to violation of the Georgia Controlled Substances Act (sale of Alprazolam). At the sentencing hearing, defense counsel requested that the court grant first offender treatment for Jones. The trial judge denied the request, stating: “I have never granted a first offender. I take the position that once you get to the Superior Court, this is a big folks’ court, and I don’t use the first offender treatment. Never have, never intend to.” The court then sentenced Jones to a term of five years probation. Jones appeals from the sentence, arguing that the judge refused to consider first offender treatment pursuant to a mechanical sentencing policy. We agree.

Decided April 13, 1993.

Bruce S. Harvey, Pete C. Whitlock, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Sharon J. Law, Randall K. Coggin, Assistant District Attorneys, for appellee.

In Cottingham v. State, 206 Ga. App. 197, 199 (3) (424 SE2d 794) (1992) we held: “[A] trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.” The record reveals that the trial court would not concede that it had a policy with respect to first offender treatment. However, it is clear from the plain language used by the court that it did have a mechanical sentencing policy of never granting first offender status to defendants appearing in superior court. The legislature has specifically provided first offender treatment as a sentencing option in felony cases to be applied at the trial court’s discretion. OCGA § 42-8-60; Todd v. State, 172 Ga. App. 231 (323 SE2d 6) (1984). The trial court’s refusal to consider that option constitutes a refusal to exercise that discretion. The judgment of sentence is vacated, and the case remanded for resentencing with direction that the new sentence not exceed the sentence previously imposed, and the request for first offender status be heard and considered on its merits.

Sentence vacated and case remanded with direction.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.


text:
    A93A0381.
    MITCHELL v. THE STATE.
    (430 SE2d 852)
   Johnson, Judge.

Bobby Lewis Mitchell appeals from his conviction of forgery, raising insufficiency of the evidence to support the guilty verdict as his sole enumeration of error.

At trial, Weyman T. Gresham testified that an unidentified man and woman appeared at his house asking for help with their car which had run out of gas. Since it was cold outside, Gresham gave permission to the woman to sit in his car while a gas can was located and gas put into their car. Several hours after the couple had left, Gresham noticed that his checkbook, which he kept in the sun visor of his car, was missing. He was not able to identify Mitchell as the man needing gas on that day.

A second witness identified Mitchell as the holder of a check bearing a signature purporting to be Gresham’s. The check was presented as payment for merchandise at a store at which the witness was a manager. She testified that the payee of the check was “Armond Hamler” and that the bearer told her that he did not have a driver’s license or any other photographic identification, but did produce a Calloway Gardens employee identification card with that name. He also volunteered that the check was payment for yard work he had done for Gresham. The bank refused to honor the check, as Gresham had stopped payment on the account. Gresham was recalled to the stand and denied knowing anyone by the name Armond Hamler.

Decided April 13, 1993.

Joseph W. Jones, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Mark A. Gomez, Assistant District Attorney, for appellee.

“The jury determines the credibility of the witnesses and weight to be given their testimony. Viewing the evidence in the light most favorable to the verdict, we find the evidence and all reasonable deductions are such as to enable a rational trier of fact to find the elements of the offense beyond a reasonable doubt, according to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” (Citations and punctuation omitted.) Frost v. State, 204 Ga. App. 581, 582 (420 SE2d 81) (1992).

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.


text:
    A93A0384.
    DEPARTMENT OF TRANSPORTATION v. BALLARD et al.
    (430 SE2d 848)
   Johnson, Judge.

Jeanette and Jerry Ballard own land adjacent to a by-pass constructed by the Department of Transportation. The Ballards filed an inverse condemnation complaint against the DOT alleging that the value of their property was diminished by flooding caused by the DOT construction. The jury returned a $30,000 verdict in favor of the Ballards. The DOT appeals from the judgment entered on the verdict.

1. The DOT contends that the trial court erred in denying its motion to strike opinion testimony of an expert witness as to the value of the Ballards’ property before the by-pass construction because his opinion was based on the sale value of other property not comparable to the Ballards’ land. The comparability of the other property is a matter going to the weight of the expert’s testimony, not its admissibility. Jordan v. Dept. of Transp., 178 Ga. App. 133, 134 (2) (342 SE2d 482) (1986); Housing Auth. of Atlanta v. Crevans, 161 Ga. App. 90 (1) (289 SE2d 294) (1982); DeKalb County v. Cowan, 151 Ga. App. 753, 754 (4) (261 SE2d 478) (1979). The court did not err in denying the DOT’s motion to strike.

Decided April 13, 1993.

2. The DOT argues that the court erred in denying its motion for a new trial on the ground that the verdict was excessive. This argument is premised on the DOT’s contention, addressed in Division 1, that the court erred in denying its motion to strike the testimony of the expert as to the value of the Ballards’ property prior to the bypass construction. Because of our ruling in Division 1, this argument is without merit. As the jury’s verdict was supported by some evidence, the court did not err in denying the DOT’s motion for a new trial on this ground. See generally Rodriguez v. Davis, 202 Ga. App. 550, 551 (3) (415 SE2d 41) (1992).

3. The DOT claims that the court erred in admitting into evidence two photographs depicting the by-pass construction. The DOT relies on our holding in Theo v. Dept. of Transp., 160 Ga. App. 518, 519 (3) (287 SE2d 333) (1981), that the trial court properly excluded photographs because “ ‘damages caused by mere temporary inconvenience due to the construction of the project for which the property was taken is not a proper element for consideration in determining just and adequate compensation for condemned realty.’ [Cits.]” The DOT’s reliance on Theo is misplaced because the photographs in the instant case were not admitted as evidence of damages caused by temporary inconvenience due to the construction. Rather, the photographs were admitted to show that increased elevation of the by-pass construction site caused flooding of the Ballards’ adjacent property. “Photographs . . . are generally admissible, when relevant, to describe a person, place, or thing, for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case. The admission or exclusion of photographs, even when there is admittedly some difference in the situation portrayed and that which existed, is a matter within the discretion of the trial judge and will not be controlled unless abused.” (Citations and punctuation omitted.) CSX Transp. v. McCord, 202 Ga. App. 365, 368 (5) (414 SE2d 508) (1991). Because the trial court did not abuse its discretion in admitting the photographs, its ruling will not be disturbed.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.

Michael J. Bowers, Attorney General, Shaw, Maddox, Graham, Monk & Boling, Daniel M. Roper, for appellant.

Gammon & Anderson, Joseph N. Anderson, for appellees.


text:
    A93A0561.
    THOMAS v. THE STATE.
    (430 SE2d 849)
   Johnson, Judge.

Robert E. Lee Thomas was indicted for possession of cocaine with intent to distribute, and was convicted of the lesser included offense of possession of cocaine. He appeals.

1. Thomas claims that the trial court erred in admitting the cocaine as evidence. He argues that the state’s witnesses offered differing descriptions of the evidence, thereby failing to establish the requisite chain of custody. Two arresting officers described the evidence as a clear plastic sandwich bag containing nine rocks of suspected cocaine. The expert from the state crime lab testified that the clear plastic bag she received contained two rocks of cocaine separately wrapped in corners of sandwich bags and several additional pieces of cocaine loose in the bag. She further testified that it is a policy of the laboratory not to count the number of pieces because it breaks easily. Disparities in the testimony of the witnesses are an issue for resolution by the factfinder. “Where the State’s evidence concerning the chain of custody of evidence was in conflict: ‘The fact that the testimony of the state’s witnesses does not agree in all details goes to the weight but does not affect the admissibility of the evidence. (Cits.)’ ” Pyburn v. State, 175 Ga. App. 158, 161 (10) (332 SE2d 899) (1985). We conclude that the trial court did not err in admitting the evidence.

2. In his second enumeration of error, Thomas asserts that the trial court erred in denying his motion to suppress evidence of the cocaine because the search which led to the discovery of the cocaine was illegal. The police received a tip from a known, reliable confidential informant specifically describing the clothing and location of an individual believed to be in possession of crack cocaine. Relying on this information, the police immediately went to the named location, quickly identified Thomas by his clothing and conducted the search which yielded the cocaine. Tips from this same informant had resulted in at least five previous arrests. Thomas argues that the tip in this case did not satisfy the “totality of the circumstances” test set forth by the U. S. Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).

“The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the ‘totality of the circumstances’ surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. Here, any deficiency in the basis of the informant’s knowledge was adequately compensated by the informant’s previous record of reliability. Moreover, the details of the tip were corroborated by the personal observation of the investigating officers. When coupled with corroboration by the personal observation of a police officer, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search.” (Citations and punctuation omitted.) McKinney v. State, 184 Ga. App. 607, 608-609 (1) (362 SE2d 65) (1987). See also Gebremedhin v. State, 202 Ga. App. 811, 812 (415 SE2d 529) (1992). As in McKinney, the informant in this case had been reliable on several occasions in the past. The specificity of the information regarding Thomas’ clothing clearly indicates that the tip was based on more than casual rumor. The police acted on the tip immediately and arrived at the scene within 15 minutes of receipt of the information. As the informant had indicated it would, the search yielded the cocaine. Reviewing the totality of the circumstances in this case, we conclude that probable cause existed to conduct the search. The trial court did not err in denying the motion to suppress.

Decided April 13, 1993.

Nancy A. Atkinson, for appellant.

Willis B. Sparks III, District Attorney, R. Jeffrey Lasseter, Howard Z. Simms, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.


text:
    A93A0721.
    BYRD v. THE STATE.
    (431 SE2d 134)
   Johnson, Judge.

A jury found Jerry Lewis Byrd guilty of possession of cocaine, possession of cocaine with intent to distribute, theft by receiving stolen property, and possession of a firearm by a convicted felon. He appeals from his conviction.

1. In his first enumeration of error Byrd asserts that the trial court erred in allowing investigating officers to testify regarding statements made by Byrd following his arrest, arguing that the statements were not voluntary. He urges us to apply the “totality of the circumstances” test as articulated in Riley v. State, 237 Ga. 124 (226 SE2d 922) (1976). The nine specific factors set forth in Riley, however, apply to statements given by juveniles outside the presence of their parents and are not applicable to this case. See Smith v. State, 195 Ga. App. 486, 488 (4) (393 SE2d 743) (1990). Prior to trial, a JacksonDenno hearing was conducted to determine the voluntariness of Byrd’s statements. At that hearing it was established that Byrd was thirty-five years old at the time of the arrest, had completed two years of college, and had been employed both as a police officer and a state corrections officer. Prior to questioning, he signed a rights waiver form which delineated the charges against him. The form also contained his Miranda rights, and these rights were read aloud to him by the officer. A tape recorder was turned off at Byrd’s request and the officers testified that Byrd was alert and oriented throughout the interview, which lasted for approximately one hour. The officers further testified that they had to “stop him from talking” and that on his own initiative, he repeatedly offered to give information about other crimes, including two murders, in exchange for a deal. These offers were refused. Immediately following the interview, Byrd was allowed to telephone his wife. Byrd did not testify, and none of these facts was controverted at trial.

In his appeal, Byrd argues that the trial court should have inferred that his confession was coerced by the promise of a deal. After reviewing the evidence in this case we do not find that to be a logical inference. No evidence was presented which suggests that Byrd’s offers to make a deal with the investigating officers were anything other than spontaneous, and these offers were repeatedly rejected. The trial court’s determination based on the totality of the circumstances that the statements at issue were voluntary will not be disturbed on appeal unless clearly erroneous. Kincey v. State, 191 Ga. App. 300, 301 (381 SE2d 439) (1989); Hayes v. State, 203 Ga. App. 143, 145 (4) (416 SE2d 347) (1992). We do not find the trial court erred in allowing the testimony.

2. In his second through fifth enumerations of error, Byrd contends that there was insufficient evidence to convict him of the charges. Construing the evidence to support the jury’s verdict, the evidence adduced at trial showed that officers of the Covington Police Department executed a search warrant at Byrd’s residence. Byrd was not present during the search, which yielded cocaine in the master bedroom and two handguns in the closet of the bedroom. It was later determined that one of the guns had been stolen. Certified copies of Byrd’s 1984 conviction of the felony of sale of cocaine and 1990 felony conviction for possession of cocaine were admitted into evidence without objection. During the search, three different people came to the apartment to buy cocaine. Byrd was arrested as he was driving back to the apartment. When stopped, Byrd was carrying over $5,000 in cash. A bag of gold jewelry was found in the back seat of the car and numerous one-inch square plastic ziplock bags, commonly used in packaging cocaine for sale, were in the console between the front seats. Jimmy Vinson, a passenger in the car, testified that he observed Byrd selling drugs that evening and that Byrd passed cocaine to him when he saw the police car following them. He put the cocaine in his shoe, where it was discovered by police. He testified that the drugs belonged to Byrd and that he agreed to hold them in return for Byrd’s promise to “take care of him.” This testimony was corroborated by Byrd’s own statement to police that he was not a big coke pusher, but had been forced into the drug business because he needed to supplement his income. We find that this evidence was sufficient to sustain the convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 13, 1993.

Johnson & Miller Gamble, Horace J. Johnson, Jr., for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


text:
    A93A0842.
    BALKCOM v. THE STATE.
    (430 SE2d 851)
   Johnson, Judge.

Charles M. Balkcom, Jr. was tried and convicted of robbery and aggravated battery. In his sole enumeration of error, Balkcom claims that the trial court erred in allowing the state to attempt to impeach a witness for the defense by asking about criminal proceedings against two of her brothers, in order to show bias against the state. He has cited no authority in support of his position. “As a general rule, and particularly when the evidence is conflicting, a party may show any fact or circumstance that might affect the credit of an opposing witness. And on cross-examination it is always permissible to sift the motives of the witness and to show, if possible, any reason other than a purpose to tell the truth which may consciously or unconsciously actuate him in his testimony.” (Citations and punctuation omitted.) Arnold v. State, 163 Ga. App. 10, 13 (4) (293 SE2d 501). (1982). This enumeration of error is without merit.

Decided April 13, 1993.

L. A. Browne, Jr., for appellant.

Joseph H. Briley, District Attorney, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.


text:
    A91A0735.
    THE STATE v. GARY et al.
    (432 SE2d 123)
    Decided April 14, 1993.

      Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, for appellant.

      Jack S. Davidson, H. Bradford Morris, Jr., for appellees.
   Blackburn, Judge.

In State v. Gary, 201 Ga. App. 556 (411 SE2d 536) (1991), this court reversed the trial court’s grant of the appellees’ motion to suppress evidence seized during a search of their home pursuant to a search warrant. However, in Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992), the Supreme Court reversed, holding that the good-faith exception to the exclusionary rule enunciated in United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984), is not applicable in Georgia in light of the statutory exclusionary rule provided in OCGA § 17-5-30. Accordingly, this court’s original judgment is vacated, and the judgment of the Supreme Court is hereby made the judgment of this court. The judgment of the trial court is, therefore, affirmed.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A0020.
    BORDERS v. GLOBAL INSURANCE COMPANY.
    (430 SE2d 854)
   Birdsong, Presiding Judge.

Appellant Tommy Reid Borders appeals from the order of the superior court granting summary judgment in a declaratory judgment action to appellee Global Insurance Company.

Appellant was injured in a collision between his bicycle and a pickup truck driven by Rodney Joseph Brunner; the truck was owned by Jill Hiott, and was an insured vehicle under the terms of a policy issued to Hiott by Global. Brunner was driving the truck with Hiott’s permission. Appellant filed suit against Brunner seeking compensatory and punitive damages. Global filed a declaratory judgment action serving appellant; after appellant’s answer, Global filed a motion for summary judgment, which the superior court granted. Held:

1. On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

2. Global, citing Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837 (413 SE2d 430), sought to defend this action on the grounds that Hiott was not insured at the time of the collision, because the check she had tendered in payment of the insurance policy premium was returned by her bank for insufficient funds. It is not disputed that a check for $156 tendered by Hiott to her insurance agent was dishonored by her bank and returned for insufficient funds. However, appellant asserts that the real issue is whether the insurance policy was a new policy or a renewal policy (as in Progressive), and that this presents a question for the jury. Further, appellant maintains that because the policy at issue was a new policy, rather than a renewal policy, it could be cancelled only by compliance with the cancellation notice provisions of OCGA § 33-24-44, and that Hiott received no notice relative to policy cancellation until after the collision had occurred.

In Progressive Preferred Ins. Co., supra at 838, the Supreme Court stated: “An insurance contract is governed by the ordinary rules of construction and should be construed to ascertain the intention of the parties. [Cits.] In discovering the intent of the parties, the whole instrument should be considered together, along with the surrounding circumstances. [Cit.] Whether a renewal creates a new contract, or extends the original contract, depends primarily on the intention of the parties.” Moreover, it is settled that “ ‘[t]he construction of an unambiguous contract is a question of law for the court.’ ” (Citation omitted.) Hunnicutt v. Southern Farm &c. Ins. Co., 256 Ga. 611, 612 (4) (351 SE2d 638). Insurance contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless, after application of the rules of construction, an ambiguity remains. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308). Except in those instances where the meaning of obscurely written words is involved, and where there is evidence tending to show that the meaning of such words was differently understood in one way or another by the parties to the contract, it is improper for the court to give the jury any instruction with regard to the manner in which the contract should be construed. Travelers, supra. Examination of the insurance documents attached to this record reveals the existence of no “obscurely written words” relevant to the issue here under consideration. Accordingly, we find that the trial court did not err in interpreting the insurance document as pertaining to the renewal of insurance rather than the issuance of a new contract of insurance, and in disposing of this issue as a question of law rather than as a factual issue necessitating jury resolution. See Progressive, supra; Hunnicutt, supra; Travelers, supra.

Examining the record in its totality, we are satisfied that there exists evidence of record to support the conclusion of law of the trial court in interpreting the insurance contract negotiated by the parties, as being intended to be a contract for the renewal of insurance rather than the issuance of a new policy of insurance. The cardinal rule of contract construction is to ascertain the intention of the parties; if that intention is, as in this case, clear and contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction. OCGA § 13-2-3.

The term “renewal” is broadly defined in OCGA § 33-24-45 (b) (2), as follows: “ ‘Renewal’ means issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer and providing no less than the coverage contained in the superseded policy or issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term or the extension of the term of a policy beyond its policy period or term pursuant to a provision for extending the policy by payment of a continuation premium.” The document at issue met these requirements. It was issued by the same insurer to supersede an existing policy and to extend the term of the existing policy beyond its policy period conditioned upon payment of a continuation premium according to the terms of the renewal document. The offer to renew automobile insurance revealed on its face that the transaction to be consummated was that of policy renewal rather than issuance of a new policy. The record does not establish that the renewal document vested the insured Hiott with any less coverage than that previously issued under the superseded policy as pertains to $15/ 30,000 bodily injury (auto) and $10,000 property damage (auto) coverage.

Although the superseded policy no. NSA 41230, with expiration date of November 2, 1991, appears to contain a basic PIP coverage of $5,000 which does not appear in. the renewal document, dated November 2, 1991, we note that effective October 1, 1991, Chapter 34 of Title 33, OCGA, was amended to repeal any requirement for such basic PIP coverage. See generally Editor’s Notes, Chapter 34, Title 33, OCGA, citing Ga. L. 1991, p. 1608, §§ 1.12; 3.1; 3.2. The deletion of the $5,000 basic PIP coverage, under these circumstances, does not constitute the providing of a lesser coverage than contained in the superseded policy, within the meaning of OCGA § 33-24-45 (b) (2), so as to preclude as a matter of law the insurance document executed on November 2, 1991, from constituting a “renewal.”

Further, the fact that a subsequent insurance agreement is given for administrative purposes a different policy number than the previous policy which it purports to supersede, that it insures additional or different vehicles, that it contains fewer endorsements (not shown by the record to reduce directly the scope of “coverage”), or that it provides for a greater or lesser premium than the insurance contract which it supersedes does not as a matter of law preclude the subsequent agreement from qualifying as a “renewal.” Rather, these are factors which may be considered by the court, together with all other relevant factors of record, in its determination of the intent of the parties regarding whether the subsequent document was to provide for a “renewal” or a “new” contract of insurance. Normally, if the parties expressly provide in the subsequent agreement that the document was intended either as a “renewal” or as a “new” contract of insurance, such expression of intent should be given deference in ascertaining their true contractual intent. In this instance, examining the insurance documents in their totality, particularly including the document captioned “Offer to Renew Automobile Insurance,” dated November 2, 1991, and considering the relevant portions of the testimony of the insurance agent, we find there exists ample evidence to support the inherent ruling of the trial court, contained within its grant of summary judgment to Global, that the parties intended the subsequent insurance document to be a “renewal” of the contract of insurance. Moreover, the “Renewal Statement,” duly dated and signed by the insured Jill Hiott, contained conspicuously therein and in bold-type (within its sub-captioned “Offer to Renew Automobile Insurance”) an unequivocal and clear provision that the parties thereto intended if either [Hiott’s] “DOWN PAYMENT OR FULL PAYMENT CHECK IS RETURNED BY THE BANK BECAUSE OF NON-SUFFICIENT FUNDS, COVERAGE WILL BE NULL AND VOID FROM INCEPTION.”

Additionally, it is a statutory rule of contract construction that: “The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” OCGA § 13-2-4. Assuming arguendo it had not been established clearly and without equivocation by the “Renewal Statement” and other relevant evidence of record that the parties mutually intended to renew the insurance contract to be superseded, the result in this instance would remain unchanged. The “Renewal Statement” conclusively establishes that Jill Hiott knew and understood that Global did consider the insurance documents in question to constitute a “renewal.” Thus, even if Hiott had harbored a different understanding as to the nature of the “renewal” contract, the result in this case would be the same. Cf. Gray v. Higgins, 205 Ga. App. 52, 55 (421 SE2d 341); Ga. Glass &c. v. Arco Chem. Co., 201 Ga. App. 15, 16 (410 SE2d 142).

Decided April 15, 1993.

McNeill Holloway III, for appellant.

Allgood, Childs, Mehrhof & Millions, Thomas F. Allgood, Jr., for appellee.

In either event, we find the trial court did not err in granting summary judgment in favor of Global. The precedent of Progressive, supra, is controlling. The “renewal” contract became null and void from its inception, Progressive, supra at 840 (4), and no statutory cancellation notice was required. Appellant’s assertions in support of his five enumerations of error are without merit.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0243.
    DUFFETT et al. v. E & W PROPERTIES, INC.
    (430 SE2d 858)
   Birdsong, Presiding Judge.

Appellant Kay O. Duffett and other homeowners brought suit seeking to enforce, against appellee developer, the assessment provisions contained in a Declaration of Protective Covenants for Ashland Subdivision (covenants). Appellee filed a motion to dismiss or in the alternative motion for judgment on the pleadings, and the trial court partially granted the alternative motion for judgment on the pleadings. The trial court made its order final under the provisions of OCGA § 9-11-54 (b).

Appellants’ sole enumeration of error is that the trial court erred in holding that the language of the covenants was unambiguous and that appellee, as developer, is not liable to pay an annual assessment for the installation and operation of street lights, and for landscaping and maintenance of common subdivision areas. Appellants contend the pertinent covenant language is ambiguous, even after application of rules of contract construction, thereby necessitating interpretation of the covenant provision by the jury.

The covenants, drafted by appellee, pertinently provide: “A fee, $10.00 per month initially, will be assessed to each lot owner to go to a fund to be used for the installation and operation of street lights and for landscaping and maintenance of common areas of the subdivision including irrigation. All purchasers and subsequent purchasers of lots subject to these covenants agree to pay said fee and make payments according to the following terms . . . (B) Payment for the calendar year of sale will be made when the lot owner takes title to the property, prorated to the end of the calendar year . . . (C) Payment shall be made to the Ashland Lighting and Maintenance Account in care of the bank designated by the Committee responsible for same; (D) Administration of the account will be the responsibility of a committee of three members elected by the lot owners with an owner having a vote for each lot owned. Owner shall have the option of administering the account until seventy-five percent (75%) of the lots are sold.” The covenants also provided in the preamble thereof that appellee shall hereinafter be referred to as “Owner.”

Appellants asserted in their complaint that appellee is a “lot owner,” as defined in the above covenant provisions, and therefore stands on the same footing as other lot owners regarding these assessments. Appellants also asserted therein that appellee elected the option of administering the lighting and maintenance account and, further, that the covenants did not exempt appellee from payments of assessments. Appellee/developer admitted in its answer that it has not paid any assessments for the subdivision lots it owns. Held-.

1. Initially we conclude the trial court correctly determined it could grant a partial motion for judgment on the pleadings, as to the claim of appellee’s alleged failure to pay the assessments in issue, notwithstanding that, although this claim was one of several averred in the complaint, it was not listed in a separate and distinct pleading count. See generally OCGA § 15-6-8 (6). “A motion for judgment on the pleadings is closely related to a motion for summary judgment.” (Dukes v. Joyner, 234 Ga. 526 (1) (216 SE2d 822)), and there exists express statutory authorization to grant partial summary judgment as to a claim. OCGA § 9-11-56 (b). It is a claim within a count and not the procedural count itself which is the real subject of motions for partial summary judgment or motions on the pleadings directed as to partial claims. Compare First Nat. Bank &c. v. Osborne, 233 Ga. 602, 604 (1) (212 SE2d 785) with Fagala v. Morrison, 146 Ga. App. 377, 378 (2) (246 SE2d 408); cf. Spafford v. Maseroni, 186 Ga. App. 290, 291 (367 SE2d 102) (error to deny motion for partial judgment on pleadings where pleadings affirmatively show that no claim in fact existed as to Counts 2 and 3 thereof).

2. “The cardinal rule of [contract] construction is to ascertain the intention of the parties.” OCGA § 13-2-3. Contract construction is a three-step process. Initially, the construction of the contract is a question of law for the court. First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. See generally Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308); Karlan, Inc. v. King, 202 Ga. App. 713, 715 (1) (415 SE2d 319). That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Howell Mill-Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 173 (3) (390 SE2d 257). Secondly, if ambiguity does appear, “[t]he existence or non-existence of an ambiguity is itself a question of law for the court. [Cits.] [Finally, a] jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction.” Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322). This is true even if the contract is difficult to construe. Id. Further, a contract should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof. See OCGA § 13-2-2 (4); C. B. I. Na-Con v. Macon-Bibb County Water &c. Auth., 205 Ga. App. 82, 83 (421 SE2d 111).

The trial court found a consistent reference throughout the covenants to the appellee/subdivider as the “owner” and to the purchasers of the lots from the owner and their successors in title as “lot owners” or “purchasers”; and concluded that, under these circumstances, the crucial language of the covenant in question (paragraph 25) imposed the assessment at issue on each “lot owner.” The trial court therefore construed the covenants as imposing the assessment only on lots which have been sold by appellee/subdivider to third parties, and as imposing no contractual liability on the part of appellee to pay an assessment on lots owned by it. Examining the contract in its entirety, we are satisfied the trial court construed the contract consistent with the intention of the parties, and that after such construction, no ambiguity remained which would give rise to a jury issue. As the covenants, as a matter of law, did not impose any duty on appellee to pay the assessment, any averment in the complaint grounded upon such a claim would be subject to a judgment on the pleadings; the trial court did not err in directing “the entry of a final judgment to the effect that the defendant (the subdivider, or ‘owner’) is not liable to pay an annual assessment for the installation and operation of street lights and for landscaping and maintenance of common areas in the subdivision.”

Decided April 15, 1993.

Dean A. Williams, for appellants.

Wendell T. Dawson, for appellee.

Parties are free, except as prohibited by statute or public policy, to contract on any terms and about any subject matter they so desire; any statutory impairment of the right to contract must be specifically expressed or necessarily implied by the legislature in a statutory prohibition, and cannot be grounded on mere speculation. Porubiansky v. Emory Univ., 156 Ga. App. 602, 603 (275 SE2d 163), aff’d 248 Ga. 391 (282 SE2d 903). We find unpersuasive appellants’ various arguments that the interpretation placed upon the covenants by the trial court violated either public policy or statute. Any statutory provisions contained in the Georgia Condominium Act, OCGA § 44-3-70 et seq., are inapplicable to the protective covenants pertaining to Ashland subdivision; in fact, the record does not establish that any condominiums are located within Ashland.

Appellants assert that an issue of estoppel would be created by any contention by appellee that it was a “lot owner” for voting purposes but not for purposes of assessment. As this issue has not been reasonably raised by enumeration of error, it cannot be considered on appeal. Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (2) (367 SE2d 272).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0701.
    SOUTHEASTERN BANK v. RENFRO.
    (430 SE2d 860)
   Johnson, Judge.

Southeastern Bank, formerly known as the Darien Bank, brought suit against Wayne Renfro as guarantor of a promissory note. Although the parties refer to Renfro as a co-signer, it is clear from the loan instrument that he was a guarantor. The loan was secured by collateral listed on a UCC-1 Financing Statement, including various boats and motors. The bank required a guarantor on the note because the loan officer did not know the maker. Renfro testified that he did not know the maker well, but had a long relationship with the bank, had previously acted as guarantor on loans, and agreed to do so here.

Southeastern introduced the executed note into evidence without objection as to its authenticity. The branch manager’s testimony that $12,750 remained due on the note was also unchallenged. Renfro testified that he never would have signed the note if bank officials had not orally represented to him that the loan was fully collateralized. He further testified that he became impatient with the bank’s failure to redeem the collateral and offered to try to get it himself. The case was submitted to a jury which returned a verdict in favor of Renfro. Southeastern appeals the judgment rendered on the verdict and the denial of its motion for a new trial because it is contrary to law. We agree.

The endorsement signed by Renfro provided that: “The undersigned endorsers . . . jointly and severally . . . consent to . . . the release of any collateral applicable thereto . . . without affecting or releasing the liability of any of the endorsers or guarantors.” The plain and unambiguous language of the loan instrument itself makes it apparent that Renfro waived any impairment of collateral defenses available to him under OCGA § 11-3-606 (1) (b). See Carrollton Car Center v. C & S Nat. Bank, 202 Ga. App. 429, 430 (2) (414 SE2d 674) (1992).

Further, the bank’s failure to effect recovery of the collateral does not preclude it from seeking to enforce the guaranty against Renfro. There is no requirement that the holder of a note proceed against the collateral before looking to the endorser or maker. See Hurt v. Citizens Trust Co., 128 Ga. App. 224, 225 (2) (196 SE2d 349) (1973); Richards v. First Union Nat. Bank, 199 Ga. App. 636 (405 SE2d 705) (1991).

Southeastern also challenges several of the charges given to the jury which characterized statements made to Renfro by the bank regarding the collateral as misrepresentations. Pretermitting whether the statements made by the bank regarding the value of the collateral were false or were known to be false at the time they were made, Renfro’s assertions that oral representations made to him by the bank concerning the safety of the loan should relieve him of his obligation are meaningless in the presence of Renfro’s signature on the note. OCGA §§ 11-3-307; 24-6-1 et seq. See Richards v. First Union Nat. Bank, supra. Additionally, no evidence was introduced at trial to support Renfro’s theory that the collateral listed on the UCC-1 did not exist at the time the loan was made. “A charge which injects into the case and submits for the jury’s consideration issues not made by the pleadings or the evidence tends to confuse the jury as to the true issue in the case, is probably harmful . . . and is error requiring the grant of a new trial.” (Citations and punctuation omitted.) Austin v. Kaufman, 203 Ga. App. 704, 710 (9) (417 SE2d 660) (1992). Those charges given to the jury which characterized the bank’s statements as being misrepresentations were not supported by the evidence and were error. Southeastern’s motion for a new trial should have been granted.

Decided April 15, 1993.

Pipkin & Williams, James G. Williams, for appellant.

Donald 0. Nelson, for appellee.

Judgment reversed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.

       The loan officer testified that he had personally gone to the docks to see the items listed as collateral on the UCC-1 Financing Statement.


author: Cooper, Judge.

text:
    A92A2178.
    DICKENS et al. v. CALHOUN FIRST NATIONAL BANK.
    (431 SE2d 121)
   Cooper, Judge.

This is the third case arising out of the same set of facts to appear before this court. See Dickens v. Calhoun First Nat. Bank, 197 Ga. App. 517 (398 SE2d 814) (1990); Dickens v. Calhoun First Nat. Bank, 189 Ga. App. 798 (377 SE2d 715) (1989). This appeal arises from the trial court’s entry of judgment on a jury verdict in favor of appellee.

Appellant and her husband defaulted on a promissory note and deed to secure debt with a face value of $206,755.77 which was executed in favor of appellee and secured by real property located in Gordon County. Prior to the default, Mr. Dickens transferred his interest in the property by warranty deed to appellant. Pursuant to OCGA § 13-1-11, appellee sent to Mr. Dickens notice of the default and of its intention to seek attorney fees, as provided in the note, if the indebtedness were not paid in full in ten days. The property was subsequently sold at a public sale and purchased by appellee for $254,000, the outstanding indebtedness on the note plus 15 percent in attorney fees ($32,590.06). The Dickenses then brought this action, seeking an accounting and damages equalling the difference between the foreclosure sale price and the principal and interest indebtedness. The complaint initially alleged that appellee failed to account for and unlawfully retained surplus funds. It was later amended to allege wrongful foreclosure based on the lack of notice to appellant, the sole owner of the property, under OCGA § 44-14-162 et seq. and OCGA § 13-1-11 and based on appellee’s sale of the property at a price far below its market value. After the trial court considered the parties’ motions for summary judgment (see Dickens, 197 Ga. App. at 519-521), the case proceeded to trial. The jury returned a verdict in favor of appellant for $140,731.30, and thereafter appellee filed a motion for new trial and motion for judgment n.o.v., arguing that appellant failed to carry her burden of proof that the failure to obtain the fair market value for the property was causally connected to the failure of the appellee to comply with OCGA § 44-14-162 et seq. and that certain real estate appraisals were erroneously admitted into evidence. The trial court granted the motion for new trial, and appellant’s direct appeal of that ruling was dismissed by this court for failure to comply with interlocutory appeal procedures. The new trial resulted in a verdict for appellee, and this appeal followed.

1. In her first enumeration of error, appellant contends the trial court abused its discretion in granting appellee’s motion for new trial. Appellee contends the ruling cannot be reviewed by this court at this time because it was not originally appealed in the proper manner. We disagree. The dismissal of appellant’s direct appeal of the trial court’s grant of a new trial does not prevent her “from eventually seeking a review in an appellate court of a judgment granting a new trial; this is so because upon conclusion of the case in the trial court and the entry of a final judgment, an appeal can then be taken from the final judgment, and in such appeal the legality of the judgment granting the new trial can be attacked. [Cit.]” Henderson v. Henderson, 231 Ga. 208 (200 SE2d 867) (1973).

Appellant contends the trial court abused its discretion in failing to set forth in writing its reasons for granting the new trial (OCGA § 5-5-51) and in refusing to supplement its order with those reasons after a request by appellant. OCGA § 5-6-41 (f). However, the record does not reflect that this objection was raised below. Appellant cites to no such objection in the record and a letter attached to her appellate brief, even if it raised a proper objection, does not preserve this error for review on appeal. “ ‘A brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record.’ [Cit.]” Chan v. W-East Trading Corp., 199 Ga. App. 76, 77 (3) (403 SE2d 840) (1991). Thus, appellant’s objection based on the trial court’s failure to set forth its reasons for granting the new trial is deemed waived.

2. Appellant contends the trial court erred in denying her motions for directed verdicts as to liability in both trials on the ground that she did not receive legal notice of the foreclosure and sale of the property pursuant to OCGA § 44-14-162 et seq. “Those Code sections require that no sale of real estate on foreclosure shall be valid unless notice of the sale has been given the debtor.” Dickens, 197 Ga. App. at 519 (1). It is undisputed that appellant did not receive notice; that she is the owner of the property; and that she resided on the property at the time the note and deed to secure debt were executed. See OCGA § 44-14-162.3. Thus, the sale should have been set aside, and the trial court erred in denying appellant’s motions for directed verdiet. Martin v. Fed. Land Bank of Columbia, 173 Ga. App. 142 (325 SE2d 787) (1984), aff’d, 254 Ga. 610 (333 SE2d 370) (1985). Moreover, upon a finding of wrongful foreclosure, appellant is entitled to recover “the full difference between the fair market value of the property at the time of the sale and the indebtedness to the seller if the fair market value exceeded the amount of the indebtedness. [Cit.]” Langley v. Stone, 112 Ga. App. 237, 239-240 (2) (144 SE2d 627) (1965), rev’d on other grounds, Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327 (1) (270 SE2d 867) (1980). Accord Aetna Finance Co. v. Culpepper, 171 Ga. App. 315, 319 (1) (320 SE2d 228) (1984).

Decided March 17, 1993 —

Reconsiderations denied April 2, 1993 and April 19, 1993 —

Lamb & Associates, T. Gordon Lamb, S. Robert Hahn, Jr., for appellants.

Kinney, Kemp, Pickett, Sponcler & Joiner, Henry C. Thorpe, Jr., Mark D. Newberry, for appellee.

Based on the foregoing, appellant’s remaining enumerations of error are moot.

Judgment reversed.

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


author: Beasley, Presiding Judge.

text:
    A93A0126, A93A0127.
    ANAYA v. BROOKS AUTO PARTS, INC.; and vice versa.
    (430 SE2d 825)
   Beasley, Presiding Judge.

Anaya was injured replacing a hose on a front-end loader. He had purchased the replacement hose and a fitting from Brooks Auto Parts, Inc. He sued Brooks, alleging claims for breach of warranty, strict liability, and negligence. The case was tried before a jury, and at the close of the evidence, the trial court granted Brooks’ motion for a directed verdict on the breach of warranty and strict liability claims, but reserved its ruling on the negligence claim. After the jury returned a verdict for Anaya on the negligence claim, the trial court granted Brooks’ motion for a directed verdict on that claim as well, resulting in a complete directed verdict for Brooks. Judgment was entered in favor of Brooks. Anaya filed an appeal, and in Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (417 SE2d 423) (1992), this court reversed, holding that the procedure employed by the trial court was improper.

Upon remittitur, the trial court followed this court’s direction and first entered judgment on the jury’s verdict on April 24, then considered the motion for a directed verdict on which ruling had been reserved as a motion for judgment n.o.v., and on April 30, 1992, entered judgment n.o.v. in favor of Brooks. On May 20, Brooks filed a motion for new trial in the alternative pursuant to OCGA § 9-11-50 (c). On June 3,1992, 34 days after entry of the judgment n.o.v., Anaya filed a notice of appeal in the trial court from the judgment n.o.v. and paid costs.

On June 10, one week after his notice of appeal was filed, Anaya moved the trial court to set aside the judgment n.o.v. Relying on Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980), Anaya alleged that the trial court had not notified him of the entry of judgment n.o.v., as required by OCGA § 15-6-21 (c). Using the procedure outlined in Cambrón, the trial court on July 1 granted the motion to set aside but immediately reentered the judgment n.o.v., thereby resetting the time within which Anaya could file an appeal. In the same order, it denied Brooks’ conditional motion for new trial. Although it had been withdrawn on June 22, Brooks again filed the conditional motion for new trial on July 29, and it was again denied on August 13. Anaya filed this appeal on August 19 from the reentered judgment n.o.v. of July 1, and Brooks filed a cross-appeal on August 31, from the denial of its conditional motion for new trial on both July 1 and August 13.

The events in the trial court relevant to this appeal may be chronicled as follows:

4/24/92 After remittitur, judgment entered for Anaya on jury verdict.
4/30/92 Judgment n.o.v. granted for Brooks.
5/20/92 Brooks filed motion for new trial in the alternative.
6/03/92 Anaya filed notice of appeal in trial court and paid costs.
6/10/92 Anaya filed motion to set aside judgment n.o.v. in trial court.
6/22/92 Brooks’ motion for new trial in the alternative withdrawn.
7/01/92 Anaya’s motion to set aside (vacate) judgment n.o.v. granted and judgment n.o.v. reentered. Brooks’ (withdrawn) motion for new trial in the alternative denied.
7/29/92 Brooks’ motion for new trial in the alternative (OCGA § 9-11-50 (c)) refiled.
8/13/92 Brooks’ refiled motion for new trial in the alternative denied.
8/19/92 Anaya filed new notice of appeal from the order of 7/1.
8/31/92 Brooks filed cross-appeal from denial on 7/1 and 8/13 of his motion for new trial in the alternative.

1. We first consider an enumeration of error in Brooks’ cross-appeal which, if it is meritorious, disposes of both the main appeal and the cross-appeal.

Brooks contends the trial court erroneously set aside and reentered the April 24, 1992 judgment n.o.v. because Anaya’s notice of appeal filed June 3, 1992 acted as supersedeas, depriving the trial court of authority to take any action affecting the judgment after the date on which the notice of appeal was filed.

OCGA § 5-6-46 (a) provides that the filing of a notice of appeal serves as supersedeas when all costs in the trial court are paid. “This automatic supersedeas deprives the trial court of jurisdiction to modify or alter the judgment in the case pending the appeal.” Turner v. Harper, 233 Ga. 483, 484 (211 SE2d 742) (1975). Contrary to Anaya’s argument, the untimeliness of the June 3 notice of appeal did not render it an exception to this principle, and no viable rationale exists to create such an exception. Williams v. Natalie Townhouses &c., 182 Ga. App. 815, 817 (357 SE2d 156) (1987). See Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979) (trial court cannot even correct mistakes in judgment pursuant to OCGA § 9-11-60 (g) once notice of appeal filed).

In Williams, the appeal was ultimately dismissed by this court for lack of jurisdiction because the appellant had failed to utilize the interlocutory appeal procedure. However, unless the notice of appeal is withdrawn or dismissed by the trial court for a proper reason, see OCGA § 5-6-48 (c), “[jurisdiction to determine this court’s jurisdiction must remain in this court so long as the appeal in question is pending.” Williams, supra at 817. “As long as an appeal remains pending in an appellate court, the existence or absence of appellate jurisdiction over that case must ultimately be determined by the appellate court itself. [Cits.]” Id.

Because the June 3, 1992 notice of appeal was still pending when the motion to set aside the judgment n.o.v. was filed and ruled upon, the trial court was without authority to entertain the motion to set aside. Accordingly, all proceedings in the trial court after June 3, 1992 are null and void and both the main appeal and the cross-appeal must be dismissed because the orders which they seek review of were void. Nor do we have jurisdiction to review the order of April 30, because the notice of appeal filed June 3 was untimely. OCGA § 5-6-38 (a).

2. Our holding in Division 1 renders moot the remaining enumerations in the appeal and cross-appeal.

Appeals dismissed.

McMurray, P. J., and Cooper, J., concur.

Decided April 5, 1993 —

Reconsideration denied April 19, 1993

Novy & James, Eugene Novy, Deborah M. Vaughan, for appellant.

Brennan & Wasden, Wiley A. Wasden III, Wallace B. Wason, Jr., for appellee.


text:
    A93A0707.
    SPANN v. CALHOUN COUNTY HOSPITAL AUTHORITY.
    (430 SE2d 828)
   McMurray, Presiding Judge.

This is a slip and fall case. Plaintiff Spann was a nurse’s aid at the defendant hospital who supplemented her income by working as a private duty aid or nurse and was doing so at the time of her injury. Plaintiff appeals from the grant of summary judgment in favor of defendant. Held:

Plaintiff was walking down a corridor towards the cafeteria when she fell and opined that the fall occurred because the floor was too slick due to improper application of wax. In premises liability cases, the true ground of liability is the proprietor’s superior knowledge of the perilous condition and the danger therefrom to persons going upon the property. While a recovery may be permitted when the perilous condition is known to the owner or occupant and not known to the person injured, no recovery is permitted when the person injured has equal or superior knowledge of the perilous condition. Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (1) (416 SE2d 857); Little v. Liberty Savings Bank, 191 Ga. App. 732, 733 (382 SE2d 734).

In the case sub judice, the uncontroverted evidence clearly demonstrates plaintiff’s equal, if not superior, knowledge, that the floors in the hospital were slick due to excess wax. Plaintiff deposed that she had been walking the floors of the hospital for 12 years and in that time she had repeatedly complained of the slick floors to her coworkers, observed excessive wax being applied to the floor, had slipped on previous occasions, and knew of others who had slipped on the floor, including at least one incident resulting in significant injury. In view of plaintiff’s equal or superior knowledge of the hazard, there was no error in the grant of defendant’s motion for summary judgment.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Decided April 5, 1993 —

Reconsideration denied April 19, 1993

Custer & Custer, Henry C. Custer, for appellant.

Alexander & Vann, William U. Norwood III, for appellee.