text:
    75314.
    COUNCIL v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (368 SE2d 167)
   Carley, Judge.

Appellant initiated this action against appellee pursuant to OCGA § 45-19-20 et seq., the “Fair Employment Practices Act of 1978.” The special master found in favor of appellant. Appellee appealed to the superior court. The superior court reversed the award of the special master. Appellant’s application for a discretionary appeal to this court was granted.

1. Among the reasons given by the superior court for reversing the award of the special master was that the special master’s findings of fact did not support the conclusion that appellee had engaged in an unlawful practice with regard to the employment of appellant. The superior court’s order reflects that its determination that there was insufficient evidentiary support for the special master’s findings of fact as to that legal issue was based upon a thorough and extensive review of the record of the hearing before the special master. It would be erroneous, however, to construe the extent to which the superior court’s order contains a discussion of the evidence which was before the special master as evincing the superior court’s failure to apply the “any evidence” standard. The record clearly shows that the superior court applied that correct standard when it reviewed the award of the special master. What the superior court did was to elect not to limit itself merely to a holding that the special master’s award was erroneous, but to go further and to explicate how the special master had erred. Thus, the superior court’s order does not contain only its bare legal determination that, as to several factual issues, the special master’s findings of fact represented an erroneous mischaracterization of the evidence which had been adduced as to those issues. The superior court’s order goes further and indicates what the true characterization of the evidence as relevant to those factual issues would be. In indicating that the evidence did in fact show as to certain factual issues, the superior court was not undertaking to substitute its findings of fact for those which had been reached by the special master. By demonstrating what the evidence as to those issues did show, the superior court was merely explaining its legal determination as to the erroneous mischaracterization of the special master’s findings.

Our review of the record shows that the superior court was correct in its conclusion that the special master’s findings were without probative evidentiary support and that it is the superior court’s determination as to the evidentiary posture of the case that is the correct one. Accordingly, the judgment of the superior court reversing the award of the special master for a lack of probative evidence and entering judgment in favor of appellee is affirmed.

2. Any remaining contention that the superior court’s reversal of the award of the special master was erroneous is moot by virtue of our holding in Division 1.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Sognier, Pope, and Beasley, JJ., concur. McMurray, P. J., Banke, P. J., and Ben-ham, J., dissent.

Benham, Judge,

dissenting.

Because I am convinced that the majority has misconstrued the superior court’s order and the record on which that order was based, I must dissent from its judgment affirming the superior court’s reversal of the special master’s award.

1. The superior court found that the evidence did not support the findings of fact in the special master’s award. Looking at Georgia statutory provisions and federal law, our Supreme Court concluded in Dept. of Human Resources v. Montgomery, 248 Ga. 465 (284 SE2d 263) (1981), that the ultimate standard of review to be applied by a superior court in reviewing such an award is the “any evidence” rule. My review of the evidence leads me inexorably to the conclusion that the superior court here did not apply that standard, but engaged instead in a de novo review of the evidence and drew its own conclusions from the evidence before it, then cloaked those conclusions in findings that there was no evidence to support the special master’s award. Although the evidence before the special master would not have supported a directed verdict for appellant, it certainly would not have justified one for appellee, either. The superior court’s holding that there was no evidence to support the award in appellant’s favor was erroneous.

2. The superior court stated as a conclusion of law that appellant did not establish an adverse employment action and a causal link between such an action and some protected status. It is clear, however, that the conclusion was merely a finding of fact in the guise of a conclusion of law. In fact, the evidence was sufficient to show the existence of adverse employment action in the form of reprimands and harassment, and a causal link to appellant’s previous participation in an employment discrimination claim in the form of her superior’s comments to appellant and her co-workers on that previous claim.

In another conclusion of law the superior court held that appellant did not prove constructive discharge. Again, that is a finding of fact, and an erroneous one. Appellant’s evidence authorized a finding that the situation at her job was made intolerable and, in fact, made her sick. That evidence was sufficient to show a constructive discharge.

3. The superior court noted that employers may not treat employees differently because of any status protected by Title VII, but held that no such status was shown here because appellant was not claiming discrimination on account of race, color, religion, sex, or national origin. That conclusion ignores the prohibition in Title VII against discrimination on account of participation in a protected activity such as a discrimination claim. See Smith v. Georgia, 684 F2d 729 (11th Cir. 1982). Appellant’s showing in that regard was sufficient.

4. The superior court held that the denial by the Department of Labor Appeals tribunal of appellant’s application for unemployment compensation collaterally estopped appellant from claiming that she had been constructively discharged. In support of that holding, the superior court’s order cites Pantex Towing Corp. v. Glidewell, 763 F2d 1241 (11th Cir. 1985), and sets out a number of criteria to be met in order to find collateral estoppel. One of those criteria is that the issues must be identical. The issues in this case were not the same as those in the unemployment compensation hearing. For example, the basis on which appellant was disqualified for unemployment compensation was a finding that “she did not exercise every recourse to that of quitting. . . .” There is no such requirement in Title VII. Since the issues were different, appellant is not collaterally estopped by the earlier decision.

5. The award of the special master was that appellant be reinstated in appellee’s employ at the same grade she held before, and that she be reimbursed for her lost wages. The second part of that award is clearly an award of back pay. The superior court held that appellant had not produced sufficient evidence to justify any award of damages at all. I disagree.

OCGA § 45-19-38 authorizes an award of back pay, and provides that it shall be reduced by interim earnings, unemployment compensation, workers’ compensation benefits, and amounts earnable with reasonable diligence. The superior court took the position that appellant bore the burden of proving what the amount of the back pay would be. However, every piece of information necessary for the calculation of appellant’s back pay is in the hands of appellee, her employer and custodian of her pay records. And appellant obviously had no burden of proving by what amount the award of back pay should be reduced by interim earnings, etc.; if appellee wanted to pay less than the full amount which would have been paid to appellant but for her constructive discharge by appellee, the burden is on appellee to prove the amount by which the award should be reduced. The evidence relied upon by appellee and by the superior court was elicited from appellant on cross-examination, and consisted of her testimony that she had held several temporary and part-time jobs since leaving appellee’s employ. Her testimony did not, however, specify the number of hours she worked at the various jobs, or provide direct evidence of what she could have earned with due diligence. As the superior court correctly pointed out, the question of damages cannot be left to speculation, conjecture, or guesswork. Stovall Tire &c. v. Prance Body &c. Works, 179 Ga. App. 483, 484 (347 SE2d 313) (1986). Since the evidence offered by appellee did not provide a basis for accurate calculation of the amount by which back pay should be reduced, the special master was correct in awarding appellant full back pay, and the superior court erred in reversing the award of damages.

Decided March 18, 1988

Rehearing denied March 31, 1988

Jack L. Cooper, for appellant.

Michael J. Bowers, Attorney General, Patrick W. McKee, Senior Assistant Attorney General, H. Jeff Lanier, Assistant Attorney General, for appellee.

In summary, I find that the evidence in this case authorized the findings and conclusions of the special master, and the superior court erred in substituting its judgment for that of the special master and in concluding that the special master had not applied the correct law to the facts of the case. For that and the other reasons stated above, I would reverse the superior court’s reversal of the special master’s award. I must, therefore, dissent to the majority’s holding to the contrary.


source: Caselaw Access Project

author: Carley, Judge. Deen, Presiding Judge, Benham, Judge,

license: Public Domain

text:
    75392.
    THOMPSON v. CROWNOVER et al.
    (368 SE2d 170)
   Carley, Judge.

At the times relevant to this appeal, appellant-plaintiff resided in an apartment owned by appellee-defendant James Crownover, who is the president and sole shareholder of appellee-defendant Crownover Electrical and Mechanical, Inc. The apartment in question contained two gas space heaters, one in the living room and one in the bedroom. Along its top, the bedroom heater was designed to accommodate protective radiants, which served to prevent flammable matter from coming into direct contact with the flames within the ignited heater. It is undisputed, however, that, from the time the apartment was first leased, the bedroom heater lacked the protective radiants.

On January 19, 1984, some three years after the commencement of the lease, appellant turned on the bedroom heater. She then stood close to the ignited heater in order to warm herself. The open flames from the heater ignited appellant’s skirt and she was severely burned. Seeking to recover for her personal injuries, appellant brought this tort suit against appellees. Appellees answered, denying the material allegations of appellant’s complaint. Appellees subsequently moved for summary judgment. The trial court granted appellees’ motion. Appellant appeals from the grant of summary judgment in favor of appellees.

1. Appellant enumerates the grant of appellees’ motion as erroneous on the ground that genuine issues of material fact remain with regard to appellees’ negligent failure to keep the leased premises in proper repair.

To recover in tort, appellant will be required to prove, as a threshold matter, that appellees owed her a duty which they breached. Appellant contends that appellees, as her landlords, owed her a duty to keep the leased premises in repair and that it is this duty which appellees breached. See OCGA §§ 44-7-13; 44-7-14. She urges that appellees have failed to show that they have not breached this duty to repair. It is clear, however, the landlord’s statutory duty to repair does not extend to patent defects in the premises which were in existence at the time of the commencement of the lease. It is also clear that the defect in this case was patent. “ ‘A landlord is not liable for injuries to his tenant or to the members of the latter’s family for injuries resulting from a patent defect existing at the time of the rental agreement as to which both the landlord and the tenant had equal knowledge.’ [Cits.] ‘A latent defect is one which could not have been discovered by inspection. A patent defect is a defect which could be discovered by inspection.’ [Cit.] [Appellant’s complaint alleges] that the absence of a protective device on the heater was a dangerous condition. It does not appear in what way the heater was any more dangerous than would be an open fireplace, for example. Even if this condition be considered a defect, however, it was a patent one, which reasonably could have been discovered by [appellant] at the commencement of the lease, which [was some three years prior to her injury].” (Emphasis in original.) Hyde v. Bryant, 114 Ga. App. 535, 536 (151 SE2d 925) (1966). See also Bixby v. Sinclair Refining Co., 74 Ga. App. 626 (40 SE2d 677) (1946); Godard v. Peavy, 32 Ga. App. 121 (1) (122 SE 634) (1924); McGee v. Hardacre, 27 Ga. App. 106 (1) (107 SE 563) (1921). Even if this court were to conclude that legislation would not be required to accomplish a change in the “patent defect” rule, we would nevertheless be powerless to effectuate that change judicially. The “patent defect” rule has been endorsed by the Supreme Court. See Rothstein v. Golf Club Co., 214 Ga. 187 (104 SE2d 83) (1958), aff’g 97 Ga. App. 128 (102 SE2d 654) (1958); Aikin v. Perry, 119 Ga. 263 (46 SE 93) (1903). Included among the legal principles which have not changed since the Supreme Court endorsed the “patent defect” rule is that of stare decisis and, among those constitutional principles which still apply today is that this court is bound by the decisions of the Supreme Court. Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI.

That, subsequent to the commencement of the lease, appellant may have given appellees notice of the condition of the heater and have requested that it be repaired will not take the case outside the “patent defect” rule. To remove the present case from the ambit of that rule would require evidence that, in response to appellant’s subsequent requests for repairs to the heater, appellees had actually agreed to make those repairs. “In the absence of an express agreement to do so, a landlord is under no duty to repair a patent defect in the rented premises where its existence was known to the tenant at the time the rent contract was entered into; and subsequent notice by a tenant of the existence of such a defect would not place upon the landlord any duty of inspection or repair. [Cits.]” (Emphasis supplied.) Mitchell v. Clark, 39 Ga. App. 714 (1) (148 SE 420) (1929). There is no evidence of record which would show that appellees did agree to any request by appellant to make repairs to the heater. Compare Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984); Plant v. Lowman, 134 Ga. App. 752 (216 SE2d 631) (1975); Warner v. Arnold, 133 Ga. App. 174 (210 SE2d 350) (1974). However, the burden was upon appellees, as movants for summary judgment, to produce evidence that they had not agreed to any request by appellant to repair the heater. “‘“[T]he burden to show that there is no genuine issue of material facts rests on the party moving for summary judgment whether he or his opponent would at trial have the burden of proof on the issue concerned; and rests on him whether he is by it required to show the existence or nonexistence of facts.” [Cit.]’ [Cit.]” Kroger Co. v. Cobb, 125 Ga. App. 310, 311-312 (3) (187 SE2d 316) (1972). There is simply no evidence either that appellees had or that they had not agreed to a request to repair the heater. Therefore, a genuine issue of material fact would remain as to whether appellees had assumed, and therefore owed, a duty to appellant to repair the patently defective heater. Compare Richardson v. Palmour Court Apts., supra; Plant v. Lowman, supra.

2. That the evidence of record does not eliminate, as a matter of law, the existence of a duty owed by appellees to appellant to repair the heater does not, however, necessarily mean that the trial court erred in granting summary judgment in favor of appellees. Appellees urge that, under the evidence of record, appellant’s own actions would serve to bar her recovery, as a matter of law, regardless of their breach of any duty to repair the heater which they may otherwise have owed to her.

“Although the tenant may not have waived performance of the landlord’s duty to repair, or any right of action growing out of an injury caused by failure to repair, and even though ample notice of the defect may have been given by the tenant to the landlord, it is nevertheless the rule that neither the tenant nor any person lawfully upon the premises by his express or implied invitation can recover for injuries caused by such defect, where the tenant or such other person could have avoided the consequences of the landlord’s negligence in failing to repair, by the exercise of ordinary care on his own part. [Cits.]” Williams v. Jones, 26 Ga. App. 558-559 (2) (106 SE 616) (1921). In the present case, the undisputed evidence of record is that appellant continued to use the bedroom heater with full knowledge of its defective condition. “A landlord is not liable for injuries to a tenant arising from a patent defect of which the tenant knew, or had means of knowing equal to those of the landlord. [Cit.] ‘When rented premises become defective and unsafe it is the duty of the tenant to refrain from using that part of the premises the use of which would be attended with danger. It is his duty to exercise ordinary care for his own safety, and where he is injured as a result of his failure to exercise such care, he can not recover damages from his landlord, even though the latter may have been negligent in failing to make repairs.’ [Cits.]” Hearn v. Barden, 115 Ga. App. 708, 709-710 (155 SE2d 649) (1967).

By appellant’s own testimony, she was equally aware of the defective heater and of the danger inherent in using it. In her affidavit, appellant stated that, when the bedroom heater was turned on, “open flames came out of the top of the metal box-like base.” “It is the duty of the tenant ‘to abstain from, using any part of the premises the use of which would be attended with danger,’ and such continued use of that portion of the knowingly defective premises which ordinarily prudence would suggest would be attended with danger will amount to contributory negligence on the part of the tenant, such as would preclude a recovery for the injury which must have been reasonably anticipated. [Cits.]” Kleinberg v. Lyons, 39 Ga. App. 774, 775 (3) (148 SE 535) (1929).

Appellant contends that under the circumstances of this case she is not, as a matter of law, precluded from a recovery because, notwithstanding her actual knowledge of the defective and dangerous condition of the heater, her only alternative to subjecting herself to that condition was to freeze. See generally Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977). However, the undisputed evidence of record is that there was another space heater in the living room, the use of which presented, if not an equally pleasant alternative to the one located in the bedroom, at least a less dangerous one. Thus, the evidence shows that appellant’s act of subjecting herself to the open flames of the bedroom heater “was not one of necessity, thereby distinguishing Grier v. Jeffco Mgt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985); Hull v. Mass. Mut. Life Ins. Co. [supra.] and Phelps v. Consolidated Equities Corp., 133 Ga. App. 189 (210 SE2d 337) (1974).” Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, 815 (354 SE2d 13) (1987). See also Smith v. Collins, 182 Ga. App. 564 (356 SE2d 530) (1987). Accordingly, appellant’s own actions do bar her, as a matter of law, from a recovery against appellees for their breach, if any, of a duty to repair.

Because of stare decisis and adherence to the Constitution of this State, we are again constrained to note that, even if it were otherwise possible for the judiciary to effect a change in this rule of tenant’s contributory negligence and assumption of the risk, it would not be possible for this court to make that change. See Donehoe v. Crane, 141 Ga. 224 (80 SE 712) (1913); Veal v. Hanlon, 123 Ga. 642 (51 SE 579) (1905). It follows that the trial court correctly granted summary judgment in favor of appellees as to appellant’s claim for the negligent failure to repair the bedroom heater.

3. The grant of summary judgment in favor of appellees as to appellant’s negligence per se claim is enumerated as error. However, in Division 2 of this opinion we have held that, notwithstanding any negligence on the part of appellees, the evidence of record demands a finding that, as a matter of law, appellant’s own actions are a bar to her recovery. This result would not change simply because the basis for appellant’s negligence claim is appellees’ violation of a duty which is imposed by statute rather than a duty which is imposed by common law. Accordingly, the trial court correctly granted summary judgment as to appellant’s negligence per se claim.

4. As to appellant’s claim for the breach of an implied warranty of suitability of the premises as a dwelling place, the trial court also granted summary judgment in favor of appellees. This ruling is enumerated as error.

“At common law there was no implied covenant on the part of the landlord that the premises were suitable for the purpose for which they were rented, or for the particular use for which they were intended by the tenant. [Cits.] The only modification of this rule in Georgia is as to the duty of the landlord to ‘keep the premises in repair.’ [OCGA § 44-7-13]. And in the absence of an agreement so to do, the landlord is not bound to repair patent defects, of which the defendant had knowledge at the time of entering the rent contract. [Cit.] There have been several decisions by the courts of this State which, by the language used, would seem to hold that it is the duty of the landlord to make the premises suitable for the purpose for which they were rented. . . . [Cits.] But in each of these cases the court was dealing solely with the duty of the landlord to make needed repairs, for in none of them was any question involved as to an implied covenant by the landlord that, irrespective of the state of repair, the premises were suitable for the purpose for which they were leased, or for the particular uses which the tenant intended to make of them. ... We think there is nothing in any of the decisions when studied in light of the facts upon which they are predicated, which could mean that the common-law rule has been changed in this State, except as provided in [OCGA § 44-7-13], having reference to repairs. We therefore hold that the implied covenant of the landlord does not, regardless of the condition of repair, include ‘an undertaking on his part that the premises leased are suitable or fitted for the particular use for which they are intended by the lessee.’ [Cits.]” Cox v. Walter M. Lowney Co., 35 Ga. App. 51, 54-55 (132 SE 257) (1926). Accordingly, insofar as appellant predicates her right to recover upon appellees’ alleged breach of a warranty of suitability other than the landlord’s duty to repair the premises, that reliance is misplaced. A landlord’s implied warranty of suitability extends only so far as and no further than his statutory duty of repair. Warner v. Arnold, supra; Point Apts. v. Bryant, 99 Ga. App. 110, 111 (1) (107 SE2d 684) (1959); Cox v. Walter M. Lowney Co., supra. As discussed previously, appellant cannot recover under the theory that appellees breached their statutory duty to repair. Accordingly, the trial court correctly granted summary judgment as to appellant’s claim for breach of an implied warranty of suitability of the premises.

5. As the result of the foregoing, it necessarily follows that the trial court correctly granted summary judgment in favor of appellees as to appellant’s claim seeking to recover punitive damages based upon allegations of gross negligence.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur. Sognier and Beasley, JJ., concur in judgment only. Been, P. J., Me- Murray, P. J., Pope and Benham, JJ., dissent.

Deen, Presiding Judge,

dissenting.

Many of the cases cited in the majority opinion support the position of the dissent that issues of fact remain for the jury.

The following cases cited by the majority all rejected contentions, considerations, and claims that motions for summary judgment should have been sustained or that granting general demurrer was appropriate. They are: Grier v. Jeffco Mgt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985); Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984); Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977); Plant v. Lowman, 134 Ga. App. 752 (216 SE2d 631) (1975); Warner v. Arnold, 133 Ga. App. 174 (210 SE2d 350) (1974); Kroger Co. v. Cobb, 125 Ga. App. 310 (187 SE2d 316) (1972); Point Apts. v. Bryant, 99 Ga. App. 110 (107 SE2d 684) (1959); Kleinberg v. Lyons, 39 Ga. App. 774 (148 SE 535) (1929) (approved by a 2-1 vote of this court, which at that time was a final vote and not subsequently considered by the whole court); Cox v. Walter M. Lowney Co., 35 Ga. App. 51 (132 SE 257) (1926); McGee v. Hardacre, 27 Ga. App. 106 (107 SE 563) (1921); Williams v. Jones, 26 Ga. App. 558 (106 SE 616) (1921).

A fortiori, where as here, the landlord promised to repair the heater, combined with knowledge that the property was condemned as unfit and “redtagged” as violating the city code while being occupied and used, the totality of the circumstances raises genuine issues of fact for jury consideration. See Pilgreen v. Hanson, 89 Ga. App. 703 (81 SE2d 18) (1954); Butts v. Academy of Beauty, 117 Ga. App. 222 (160 SE2d 222) (1968).

Benham, Judge,

dissenting.

While I agree with the conclusions reached by the majority in Divisions 1 and 4, but not with the reasoning contained therein, I must dissent as to Divisions 2, 3, and 5, and I write separately to fully explain my disagreement with the majority opinion.

On January 19, 1984, a cold winter morning, Beverly Jean Thompson, appellant, suffered disfigurement and disability as a result of second and third degree burns over 36 percent of her body, which she sustained when her dress caught fire while she was warming herself in front of a bedroom space heater. At the time of her injury, she was renting a house located at 3825 College Street, College Park, Georgia, from appellees, James L. Crownover and Crownover Electrical & Mechanical, Inc. The house in question consisted of three bedrooms, a living room, and a kitchen, and it contained a gas space heater in the living room and in one bedroom. The remaining pertinent facts will be outlined as the respective enumerations of error are addressed.

The trial court found that the defective condition of the space heater was patent and that appellant had equal or superior knowledge of the defective condition; therefore, she assumed the risk and summary judgment was granted to appellees/landlords.

1. In her first enumeration of error, appellant contends that the trial court erred in granting summary judgment to appellees on appellant’s claim that material issues of fact remain as to matters of upkeep. In Division 1 of the main opinion, the majority concedes that material issues of fact remain as to this issue, but for reasons contained in Division 2 of the main opinion, the majority rules that the trial court did not err in granting summary judgment. We must begin our analysis of Enumeration 1 with reference to one of the Code sections dealing with a landlord’s duty to repair. OCGA § 44-7-13 provides that the landlord must keep his rental premises in repair.

Since this matter is before the court on a review of the trial court’s grant of summary judgment under OCGA § 9-11-56, there are certain rules we must apply. The burden is on the moving party to show a lack of genuine issues of material fact. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). The evidence is to be construed most favorably toward the party opposing the motion for summary judgment. McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178. (129 SE2d 408) (1962), and the party opposing the motion is to be given the benefit of all reasonable doubts and inferences. Holland, supra.

The evidence, viewed in light of the foregoing rules of law, shows that although the bedroom heater was in a state of disrepair at the inception of the lease, it fell into further disrepair during the life of the lease when the metal frame fell out and the back fell off the heater. This matter was brought to the attention of the landlord and he promised to repair it. The Atlanta Gas Light Company examined the heater and found it to be defective. The landlord told the tenant to repair the heater and deduct the amount from her rent, but the material the tenant bought to repair the heater did not work. The landlord promised to make the necessary repairs since only the box and metal frame were left, but he never made the repairs. In December 1983, the property was condemned as being unfit for human habitation due to violations of the city code, which included the defective bedroom heater. On December 21, 1983, the house was “red tagged” by the City of College Park, which also notified appellees of the condemnation. On the day that appellant was burned, her mother, who also resided with her, was out looking for another place for them to live.

Although I disagree with the majority’s assessment of the patent and latent defects issue in Division 1,1 see no need to take issue with it at this point since it did not form a critical part of the majority’s ruling as to Division 1. However, I must note that contrary to the statement contained in the majority opinion, the patent-latent defect analysis does not apply where the landlord assures the tenant that repairs will be made. Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984). Nevertheless, the foregoing statement of facts clearly shows that the trial court improperly granted summary judgment to appellees on the duty to repair issue, and the majority opinion was correct in disavowing such a ruling.

2. I part company with the majority opinion in Division 2 wherein it rules that summary judgment was proper even though material issues of fact remain to be determined. Since the enumeration of error as to negligence per se is closely associated with appellant’s negligence claim, they will be addressed together. Citing Williams v. Jones, 26 Ga. App. 558 (2) (106 SE 616) (1921), the majority opinion concludes that appellant failed to exercise ordinary care for her own safety and that, therefore, she is barred from recovery. In analyzing this conclusion, we must begin with a time-honored legal axiom. Matters of ordinary care, assumption of risk and contributory negligence are normally matters for jury determination except in situations where the evidence is clear, plain, and indisputable. United Car &c. Leasing v. Roberts, 150 Ga. App. 369 (3) (257 SE2d 905) (1979); Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977); Davis v. Gen. Gas Corp., 106 Ga. App. 317 (2) (126 SE2d 820) (1962). Citing Hearn v. Barden, 115 Ga. App. 708, 709-710 (155 SE2d 649) (1967), the majority concludes that appellant had full knowledge of the danger, and, therefore, she was precluded from recovery because she should have abstained from using the defective heater. The majority places great reliance on the Supreme Court’s summary affirmance in Rothstein v. Golf Club Co., 214 Ga. 187 (104 SE2d 83) (1958), aff'g 97 Ga. App. 128 (102 SE2d 654) (1958), a case wherein a two-year-old child was injured in a fall into a ravine located near her apartment complex. The Rothstein court ruled that since the condition existed at the time the landlord-tenant relationship was entered into, it was a patent defect and recovery was barred. However, the majority here fails to realize that there have been many advancements in the law since the 1958 Rothstein decision, which was brought on general negligence grounds (Code Ann. § 105-401 (now OCGA § 51-3-1)). In Rothstein, the court ruled that a landlord has no duty to repair a patent defect unless there is an express agreement to repair. The majority here fails to take into consideration the date of the Rothstein case and the fact that a landlord’s statutory duty to repair was in its infancy at that time and had not developed to the state of maturity that exists today. As early as Lee v. Huiet & Powell, 142 Ga. App. 528, 530 (236 SE2d 506, 508) (1977), a case involving a leaky ceiling which eventually collapsed, we ruled that “[continued use of the room with knowledge of the defect will not, as a matter of law, bar appellant’s recovery. [Cits.]” In Warner v. Arnold, 133 Ga. App. 174, 179 (210 SE2d 350) (1974), a case involving the burglary of an apartment and destruction of property, we found that summary judgment was improper even though the tenant knew that the lock on her door was defective and she had told the landlord of its existence: “The immediacy of the connection between the inadequate (although functioning) lock, the landlord’s notice of the inadequacy, either actual or constructive, and the burglary and arson, compels us to hold that the landlord is not insulated as a matter of law, and that the jury should properly pass on the questions of agency, notice, foreseeability, intervening causation, assumption of risk, as well as the suitability of the lock in question.”

Likewise, in Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 193 (210 SE2d 337) (1974), where a tenant attempted to clear ice from a walk and was unsuccessful, and in attempting to traverse the ice to go to work, fell, the court ruled that the tenant “had no alternative but to traverse the ice if she was to go to and from her apartment.” See also Grier v. Jeffco Mgt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985); Richardson v. Palmour Court Apts., supra. This rule has become known as the “necessity rule.” In Plant v. Lowman, 134 Ga. App. 752 (216 SE2d 631) (1975), where a tenant was injured while using a defective stairwell even though another stairwell was available, this court ruled that even though the tenant had knowledge of the defective condition of the stairwell, the landlord was not insulated as a matter of law from liability, and that summary judgment was inappropriate. Therefore, as it relates to the case in chief, since this court has not only recognized the “necessity rule” but also an extension of the “necessity rule,” the trial court erred in granting summary judgment. The jury should determine (1) if the defect was in fact patent; (2) if so, was the danger apparent; (3) if so, did appellant appreciate the risk and assume it; (4) and, if so, does the “necessity rule” apply?

3. For reasons contained in the foregoing divisions, I believe that material issues of fact remain to be determined not only as to negligence, but also negligence per se; therefore, it would be premature to rule on the punitive damages issue.

I would reverse the trial court and allow appellant to have a jury trial.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Judge Pope join in this dissent.

Decided March 18, 1988

Rehearing denied March 31, 1988

David H. Pope, for appellant.

Richard B. Eason, Jr., Eric E. Huber, Rex T. Reeves, Jack 0. Morse, for appellees.


author: Benham, Judge.

text:
    75395.
    DONNELLY et al. v. WEYANT.
    (368 SE2d 331)
   Benham, Judge.

Appellee Weyant, a Georgia resident, was injured when he fell from a walkway at the North Carolina beach house owned by appellants Donnelly, also residents of Georgia. Appellee filed suit and, in the ensuing trial, a jury returned a verdict in favor of appellee in the amount of $32,100. Appellants filed this appeal from the judgment entered on that jury verdict.

While spending a one-week vacation at the beach house that had been rented by a member of appellee’s family from appellants through a real estate company, appellee fell from the walkway that extended from the house to the beach when the railing upon which he was leaning broke away from the walkway. Appellee suffered a dislocated shoulder and two fractured ribs from the ten-foot fall.

1. Included in the trial court’s instructions to the jury was a charge based upon the North Carolina Residential Rental Agreements Act (NCGS § 42-38 et seq.) Appellants contend reversible error was committed in giving the charge because the Act is not applicable to the facts of the case.

By its own terms, the Act is not applicable to “transient occupancy in a hotel, motel, or similar lodging subject to regulation by the Commission for Health Services” or to “any dwelling furnished without charge or rent.” NCGS § 42-39. Exempted from regulation by the Commission for Health Services are “facilities which provide food or lodging to regular boarders or permanent house guests. . . .” NCGS § 130A-2 (1); 130A-250 (i). A “permanent house guest” is one “who receives room or board for periods of a week or longer . . . [and] includes visitors of the permanent house guest.” NCGS § 130A-247 (1). Appellee, who was staying at the beach house for one week, was a permanent house guest or the visitor of a permanent house guest; therefore, the facility at which he was lodging was not subject to regulation by the Commission for Health Services. In the absence of regulation by that entity, the beach house was not excluded by statute from coverage of the terms of the Act. NCGS § 42-39.

Decided March 11, 1988

Rehearing denied March 31, 1988

William H. Major III, Thomas Q. Langstaff, for appellants.

Richard W. Wilson, Jr., Shawn D. Stafford, for appellee.

The jury was charged with the precepts of NCGS § 42-42 (a) (2, 3) which provide that “[t]he landlord shall: . . . [m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition; [and] [k]eep all common areas of the premises in a safe condition.” “Premises” is statutorily defined as “a dwelling unit. . . and the structure of which it is a part and . . . grounds, areas, and facilities normally held out for the use of residential tenants who are using the dwelling unit as their primary residence.” NCGS § 42-40 (2). Appellants maintain that the Act was not applicable to the case at bar because the beach house rented by appellee’s family was not appellee’s “primary residence.” We agree. The uncontroverted evidence was that appellee was vacationing for one week at the beach house and returned to his primary residence in the Atlanta area after sustaining his injury. Since the beach house was not appellee’s primary residence, it was error to charge the jury on the landlord’s duty of care contained in the North Carolina Residential Rental Agreements Act. The inclusion of the instruction on NCGS § 42-42 (a) (2, 3) was harmful error since, due to the inapplicability of the Act, the case is controlled by the common law principle that a landlord is under no duty to keep rented premises in repair in the absence of an agreement relating to repairs. See Brooks v. Francis, 291 SE2d 889, 891 (N.C. App. 1982).

2. In light of our holding in Division 1 of this opinion, the remaining enumerations of error need not be addressed.

Judgment reversed.

Banke, P. J., concurs. Parley, J., concurs in judgment only.


author: Banke, Presiding Judge. Deen, Presiding Judge, Carley, Judge,

text:
    75516.
    WILLIAMS et al. v. CRAWFORD.
    (368 SE2d 337)
   Banke, Presiding Judge.

The appellants sued the appellee to recover damages for the latter’s alleged fraud in connection with the sale to them of certain residential real estate. Originally, the real estate broker and agent who had represented the appellee seller in the transaction were also named as defendants, but the appellants later voluntarily dismissed them as parties to the action. This appeal is from the grant of the appellee’s motion for summary judgment.

The appellee’s alleged fraud consisted of his concealment of his knowledge that both the driveway to the residence and the existing well which served as its sole source of water were not actually located on the property but were instead located on an adjacent tract of land then owned by his father. It is conceded that no affirmative misrepresentation was made to the appellants that the well and driveway were located on the property being sold. However, the appellants maintain that the appellee knowingly allowed his real estate agents to identify the well as the source of water for the property and that, upon inquiry, the agents provided them with information regarding the depth of the well, without mentioning that it was not located on the property. There is also evidence that the appellants asked the appellee’s agents “about getting a survey” prior to the closing but were advised that “it wasn’t necessary, that it had been done in ‘79 for [the appellee] . . . [and] nothing had changed.” Although the appellants evidently did not ask to see the existing survey prior to the closing, it does not appear that the locations of the well and driveway were depicted on that survey. Held:

1. “ ‘Fraud may exist as much in intentional concealment of material facts, as in false statements in regard to facts. One is as fraudulent as the other, if it is used as a means of deceiving the opposite party.’ ” Friedman v. Goodman, 222 Ga. 613, 623 (151 SE2d 455) (1966), citing Jordan v. Harber, 172 Ga. 139 (4) (157 SE 652) (1931).

The evidence of record in this case would support an inference that the appellee, acting with full knowledge of the actual facts, permitted his agents to foster and nurture a misconception on the part of the appellants that the well, at least, was located on the property being sold to them. The appellants’ understanding in this regard was clearly material to the negotiations, as the value of the residence would obviously be affected significantly by whether it did or did not have its own water source. Consequently, we hold that the record does not demonstrate as a matter of law that no fraud occurred.

It is true, of course, that a jury might determine that the actual facts could and should have been discovered by the appellants in the exercise of due diligence. See generally U-Haul Co. of Western Ga. v. Dillard Paper Co., 169 Ga. App. 280, 282 (312 SE2d 618) (1983). All the appellants needed to do to protect themselves, after all, was to commission a survey of the property. However, we are not prepared to hold under the circumstances of this case that the appellants’ failure to commission a survey prior to closing constituted such a lack of diligence as would bar them as a matter of law from any recovery. “While a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations.” Dorsey v. Green, 202 Ga. 655, 659 (44 SE2d 377) (1947). Although a failure to investigate the true facts may constitute an absolute defense in cases where the alleged fraud consists merely of “ ‘general commendations or . . . expressions of opinion, hope, expectation and the like,’ ” Miller v. Clabby, 178 Ga. App. 821, 822 (344 SE2d 751) (1986) (emphasis omitted), where, as in this case, the alleged fraud concerns facts which are not open to dispute or interpretation, it has been held that the alleged wrongdoer should not be permitted to set up as an absolute defense that the plaintiff was negligent in relying upon his good faith and honesty. See Smith v. Holman, 117 Ga. App. 248, 249 (160 SE2d 533) (1968).

“On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). We hold that the evidence of record does not establish the appellee’s entitlement to judgment as a matter of law and that the trial court consequently erred in granting his motion for summary judgment.

2. The appellants also enumerate as error the trial court’s denial of their motion to rejoin as party defendants the real estate broker and agent whom they had previously named as defendants in the case but had later voluntarily dismissed. This enumeration of error is without merit. Under OCGA § 9-11-21, the grant of denial of a motion to amend pleadings so as to add parties is subject to the sound discretion of the trial court. Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) (1976); Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (308 SE2d 211) (1983). Under the circumstances, we hold that no abuse of discretion has been shown.

Judgment reversed.

McMurray, P. J., Pope, Benham, and Beasley, JJ., concur. Deen, P. J., concurs and also concurs specially. Birdsong, C. J., Carley, and Sognier, JJ., concur in part and dissent in part.

Deen, Presiding Judge,

concurring specially.

I concur fully in the majority opinion but wish to emphasize certain points.

The dissenting opinion in the case sub judice cites Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977), where the Supreme Court, in a 4-3 vote, affirmed Division 3 of our opinion in Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141) (1976), and held that there was a jury question as to fraud.

In Wilhite the issue was very similar to that in the instant case. Both cases involved the purchase of a house and an underground object. In Wilhite the seller knew of an underground problem or defect of which the purchaser had no knowledge. This court held that the seller “surely knew that information concerning the defective condition would have significantly affected Mays’ [purchaser’s] decision.” We held there that the seller could not “simply keep his mouth shut” but had a duty to speak up.

In the case under consideration, the purchaser had been told of the depth of the well, but not the distance from the well to the boundary line of the property purchased. In fact, he thought the well was within the boundary line of what he had purchased. Acknowledging that one cannot determine a horizontal length or distance by measuring the vertical depth of the well, the fact remains that the purchaser was expressly apprised by the seller or his agent of the depth of the well, but not of its location or its distance from the property purchased. The existing plat did not indicate the location of the well.

A jury might find that the seller could surely know that the information concerning the length of the distance was no less important than the depth of the well, concerning which the buyer had affirmatively inquired. A jury could find that the seller had a duty to open his mouth and speak and was not justified in remaining silent where something so substantial as the location of vital water sources is concerned, and where the seller knew the well was outside the boundary line. In Wilhite, three judges on this court and four justices on the Supreme Court found a jury question as to the existence vel non of fraud. Our case sub judice is controlled by the latter case.

Carley, Judge,

concurring in part and dissenting in part.

I concur fully in Division 2 of the majority opinion. I cannot, however, concur in Division 1, wherein the majority reverses the grant of summary judgment in favor of appellee. The effect of the majority opinion is to create a new principle of law: Let the Seller Beware. If the majority is correct in this case, then the seller in each and every real estate contract in Georgia is a potential defendant in a fraud action. Because I cannot agree that this is or should be the law, I must respectfully dissent.

As the majority notes, appellee’s alleged fraud concerns the location of the existing well and driveway serving the property. Clearly, the locations of the well and driveway were patently observable to prospective purchasers. Compare Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977). Appellants nevertheless alleged that they had been defrauded by appellee because the well and driveway were not actually located on the property being sold. The majority concedes that no affirmative misrepresentations were made to appellants that the well and driveway were located on the property being sold. The majority holds, however, that a genuine issue of material fact remains as to appellee’s fraudulent concealment of the fact that the location of the well and driveway was not on the property which he sold to appellants. In so doing, the majority overlooks the established principles of law which are applicable to fraud by passive concealment.

“In cases of passive concealment by the seller of defective realty, ‘the buyer must prove that the vendor’s concealment of the defect was an act of fraud and deceit, including evidence that the defect “could [not] have been discovered by the buyer by the exercise of due diligence . . . [and that the] seller was . . . aware of the problems and did not disclose them. . . .” [Cit.]’ [Cits.]” (Emphasis supplied.) U-Haul Co. v. Dillard Paper Co., 169 Ga. App. 280, 282 (312 SE2d 618) (1983). See also Wilhite v. Mays, supra. With regard to the issue of appellants’ exercise of due diligence, the record shows that appellant had examined the property on two or three occasions prior to closing and that he had clearly observed the locations of the dwelling, driveway and well house. Appellants never indicated to appellee that having the well and driveway located on the property was material to their purchase of it. Appellee never concealed the location of the well or the driveway and answered all questions which were asked about those features. The majority merely assumes that the actual location of the water source and driveway rather than the mere availability of those facilities must have been material to appellants, as the actual location would affect the value of the property. For purposes of summary judgment, however, it is the evidence of record and not judicial assumptions, which controls. From the questions which were asked of and which were truthfully answered by appellee, appellants were apparently interested only that the property had a water source and access, because they never specifically questioned the location of those otherwise patently observable features. If appellants had a misconception about the location of those features, there is nothing to indicate that appellee was aware of that misconception. Prior to closing, appellants had not had a survey made of the property and they had never examined or asked to examine the plat of the property even though the properly recorded plat had been incorporated by reference into the contract of sale. Appellant Mr. Williams admitted that a “survey would have told [him] that the well was off the property and the driveway was off the property.”

Construing the evidence most strongly against appellee as the movant for summary judgment, “[t]he alleged defect here was not ‘hidden’ so that [appellants,] in the exercise of ordinary care, would not have discovered it. . . . ‘The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity., “When the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations.” [Cit.]’ [Cits.] Under the circumstances in the case at bar, the trial court did not err in concluding as a matter of law that [appellants] failed to exercise proper diligence in protecting themselves from [appellee’s] alleged fraudulent concealment. [Cits.]” Miller v. Clabby, 178 Ga. App. 821, 822-823 (344 SE2d 751) (1986). See also Bimbo Bldrs. v. Stubbs Properties, 158 Ga. App. 280 (1) (279 SE2d 730) (1981).

Decided March 18, 1988

Rehearing denied March 31, 1988

Don H. Taliaferro, for appellants.

David B. Dunaway, for appellee.

Pursuant to the majority’s interpretation of the law of passive concealment, sellers of realty must determine whether an otherwise patently observable or discoverable condition in or on his property will, at some future point within the statute of limitations, come to be deemed “material” to the silent purchaser. For, if the formerly silent purchaser does subsequently divulge for the first time in the allegations of the complaint which he files against the seller that such a patently observable condition had always been “material” to his purchase, the seller’s failure to have affirmatively “disclosed” that condition will subject him to a fraud action. “[W]hen the defects in the property [are] of such a nature that the buyer could not discover them through the exercise of due diligence, the burden [is] on the seller to disclose the seriousness of the problems of which he was aware, provided that the seller knew that the buyer was acting under a misapprehension as to facts which would be important to the buyer in making his decision.” (Emphasis supplied.) Holman v. Ruesken, 246 Ga. 557, 558 (2) (272 SE2d 292) (1980). Believing that it is necessary to adhere to precedential authority, I must dissent to Division 1 of the majority’s opinion. I would affirm the grant of summary judgment in favor of appellee.


author: Carley, Judge. Banke, Presiding Judge, Deen, Presiding Judge,

text:
    75632.
    COBB v. STEPHENS.
    (368 SE2d 341)
   Carley, Judge.

On September 9, 1983, the son of appellee-plaintiff was struck and killed by an automobile which was being driven by Ms. Robin Bozeman. Appellant-defendant owned the vehicle, but he had purchased it for his daughter’s use. Appellant’s daughter, who was a passenger at the time of the incident, had given Ms. Bozeman permission to drive the car. On March 30, 1984, appellee commenced this wrongful death action against Ms. Bozeman only. On August 10, 1984, while taking the depositions of Ms. Bozeman and of appellant’s daughter, appellee discovered appellant’s ownership of the vehicle.

It was not until July 17, 1985, however, that appellee moved for leave to amend the complaint by adding appellant as a defendant. See OCGA § 9-11-21. The trial court granted that motion on August 27, 1985. However, it was not until September 10, 1985, one day past the expiration of the limitations period, that appellee actually filed her amendment adding appellant as a defendant. Appellant subsequently moved for summary judgment contending that the amendment should not relate back to the commencement of the action and that appellee’s claim against him was thus barred by the statute of limitations. The trial court denied appellant’s motion, finding that appellant had not met his burden of proof, as the movant, to show that the amendment adding him as a party defendant should not relate back. See OCGA § 9-11-15 (c). However, the trial court certified its order for immediate review. This appeal results from this court’s grant of appellant’s motion for an interlocutory appeal from the denial of his motion for summary judgment.

Appellee sought to add appellant as a party defendant to the action rather than to change the original party defendant in the action from Ms. Bozeman to appellant. However, the law in this regard is clear: “ ‘Although [OCGA § 9-11-15 (c)] refers to “an amendment changing the party” it has properly been held to sanction relation back of amendments which add or drop parties, as well as those substituting new parties for those earlier joined.’ ” (Emphasis supplied.) Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga. App. 14, 17 (2) (217 SE2d 358) (1975).

Despite contentions to the contrary, this broad interpretation of the ambit of OCGA § 9-11-15 (c) as authority to add, as well as to change, parties has been consistently followed. The cases subsequent to Sam Finley, Inc., have, however, established a requirement that there be a strict adherence to the letter of OCGA § 9-11-15 (c) by the one who would rely upon it as authority for the addition of a new party to an existing action. In A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975), this court held that OCGA § 9-11-15 (c) may authorize the addition of a new party defendant and a relation back as to that new defendant, but only if the three elements which are specifically enumerated in that provision have first been satisfied. Those three elements are: (1) That the amendment adding the new defendant arise out of the same facts as the original complaint; (2) That the new defendant had sufficient notice of the action; and, (3) That the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him. The plaintiff in A. H. Robins Co. had sought to add a defendant under circumstances which would have satisfied the first element of OCGA § 9-11-15 (c), but not the second or the third element. This court held that all three elements of OCGA § 9-11-15 (c) must be satisfied if the original pleadings are to relate back as to a new defendant who is added by amendment: “We do not believe that the addition of parties who are altogether strangers to the original suit, insofar as notice and knowledge thereof [are concerned], was intended to be encompassed within the word ‘changing.’ [Cits.]” (Emphasis supplied.) A. H. Robins Co. v. Sullivan, supra at 535. Clearly, the import of this holding is that the addition of parties who have an involvement in the same set of facts which gave rise to the original complaint and who are also not “altogether strangers to the original suit, insofar as notice and knowledge thereof [are concerned],” would be authorized under OCGA § 9-11-15 (c). Thus, A. H. Robins Co. merely employs a strict construction as to compliance with the statutory mandate and is entirely consistent with this court’s earlier recognition in Sam Finley, Inc., supra, of the broad statutory ambit which can exist upon that compliance.

This court’s consistent adherence to a strict statutory construction of OCGA § 9-11-15 (c) should not be misconstrued as an inconsistent line of authority. The only difference between the A. H. Robins Co. and the Sam Finley, Inc. decisions is that, in the former case, the amendment to add a defendant did not, as a matter of law, satisfy the first element of OCGA § 9-11-15 (c), whereas, in the latter case, the amendment to add a defendant did satisfy that first element. Similarly, such cases as Coley Elec. Supply v. Colonial Eggs of Alma, 165 Ga. App. 108 (1) (299 SE2d 165) (1983) and Beaver v. Steinichen, 182 Ga. App. 303 (355 SE2d 698) (1987), are simply cases wherein all of the necessary elements of OCGA § 9-11-15 (c) for the addition of a new party were not satisfied. Other cases, such as Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732 (307 SE2d 530) (1983) and Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 (359 SE2d 362) (1987), are simply cases wherein all of the statutory elements for the addition of a new party were satisfied. Thus, rather than an inconsistent line of authority, there is really only a single line of cases which has followed a strict but consistent interpretation of OCGA § 9-11-15 (c) as statutory authority for adding new parties to existing actions. What are, in fact, the necessarily different results of having followed a consistent but strict interpretation of OCGA § 9-11-15 (c) should not be misconstrued as inconsistent holdings. Accordingly, the issue to be determined is where the present case fits within the heretofore unbroken line of authority.

Undoubtedly, appellee may encounter some difficulty in showing that appellant had sufficient notice of the pending action and the requisite knowledge of appellee’s mistake with regard to appellant’s identity as a proper party defendant so that, pursuant to OCGA § 9-11-15 (c), the amendment adding appellant as a defendant should “relate back” to the institution of the action. See generally Bil-Jax, Inc. v. Scott, supra. However, on the present motion for summary judgment, the evidentiary burden as to these issues was upon appellant as the movant. See generally Maelstrom Properties v. Holden, 158 Ga. App. 345 (280 SE2d 383) (1981). Upon our review of the record, we find that, when the evidence is construed most strongly against appellant, he has not met his burden of showing the inapplicability, of OCGA § 9-11-15 (c) and, therefore, the burden never shifted to appellee to show the applicability of that statute. See generally Maelstrom Properties v. Holden, supra; Sam Finley, Inc. v. Interstate Fire Ins. Co., supra. Compare Hall v. Hatcher Sales Co., 149 Ga. App. 133 (2) (253 SE2d 812) (1979). Accordingly, the denial of appellant’s motion for summary judgment on the existing record is affirmed.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur. Birdsong, C. J., Banke, P. J., Pope, Benham, and Beasley, JJ., concur and also concur specially. Deen, P. J., dissents.

Banke, Presiding Judge,

concurring specially.

I agree with all that is stated in the majority decision but wish to add a few additional observations.

Like the federal rule on which it is modeled, “the aim of the relation back rule . . . contained in [Section 15 (c) of the Georgia Civil Practice Act] is to ameliorate the impact of the statute of limitation. See Wright & Miller, Federal Practice and Procedure: Civil § 1496.” Rich’s, Inc. v. Snyder, 134 Ga. App. 889, 892-893 (216 SE2d 648) (1975). “A narrow technical reading of this Code section would defeat the purposes for which it was designed.” Id.

To read the statute as qualifiedly permitting the relation back of an amendment seeking to substitute an entirely new defendant for an existing one but as categorically prohibiting the relation back of an amendment seeking to add the same new defendant alongside an existing one would be to construe it so narrowly as to create an irrational distinction. The statute by its terms refers to amendments “changing the party against whom a claim is asserted. . . .’’It places no undue strain upon this language to read it as encompassing amendments changing “the parties” as well as “the party” against whom a claim is asserted, for it is an axiom of statutory interpretation that “[t]he singular or plural number each indicates the other, unless the other is expressly excluded.” OCGA § 1-3-1 (d) (6). Indeed, this court has previously interpreted the language in question as encompassing amendments seeking to add new plaintiffs as well as amendments seeking to add new defendants. See Gordon v. Gillespie, 135 Ga. App. 369, 374-375 (217 SE2d 628) (1975).

The interpretation of the statute which we today reaffirm has been consistently followed by the federal judiciary in its interpretation of Rule 15 (c) of the Federal Rules of Civil Procedure. See generally 1 Moore’s Fed. Prac., Par. 15.15 [4], and cases cited therein. While such cases as A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975), and Beaver v. Steinichen, 182 Ga. App. 303 (355 SE2d 698) (1987), do appear to favor a more restrictive interpretation, it is apparent for the reasons so aptly expressed in the majority opinion that the relation back requirements set forth in the statute were simply not met in those cases. Thus, the result reached in those cases would have obtained even under the more expansive interpretation of the statute which we have previously followed in such cases as Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga. App. 14 (2) (217 SE2d 358) (1975); Gordon v. Gillespie, 135 Ga. App. 369, supra; Maelstrom Properties v. Holden, 158 Ga. App. 345 (280 SE2d 383) (1981); Horne v. Carswell, 167 Ga. App. 229 (306 SE2d 94) (1983); Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732 (307 SE2d 530) (1983); Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 (359 SE2d 362) (1987); and Rose v. Rosilla, 185 Ga. App. 217 (363 SE2d 623) (1987).

The decision in A. H. Robins Co. v. Sullivan, supra, is additionally distinguishable for another important reason — that case did not involve the relation back of an amendment for statute-of-limitation purposes. The defendant sought to be added there was already a defendant in an existing action brought by the same plaintiff on the same claim in another county, and the plaintiff was attempting to utilize the relation-back feature of Section 15 (c) to obviate a “prior pending action” defense which the defendant had asserted in the second action pursuant to former Code Ann. § 3-601 (current OCGA § 9-2-5 (a)). Quite obviously, the legislature never contemplated that Section 15 (c) would be used for such a purpose.

Having been offered neither reason nor authority to do otherwise, I concur fully in our adherence to the extensive body of state and federal authority holding that an amendment seeking to add a new defendant to an existing action may relate back for statute-of-limitation purposes to the date of the filing of the complaint, provided the requirements set forth in the statute are shown to have been met.

I am authorized to state that Chief Judge Birdsong, Judge Pope, Judge Benham and Judge Beasley join in this special concurrence.

Deen, Presiding Judge,

dissenting.

If ever a case demonstrated that justice is blind, this is it, considering the majority opinion’s denial of the apparent conflict of authority on the issue of relation back of amendments adding a party. Perhaps the majority opinion considers it “the prerogative of a lofty mind not only to enlighten by its wisdom but to enslave by its authority.” McLin v. Harvey, 8 Ga. App. 360, 363 (69 SE 123) (1910). When conflicting lines of authority exist, the ball is in our court to call time and rectify our mistakes.

That this court has applied conflicting rules with regard to the relation back of amendments changing and adding parties, there would appear to be no doubt. Admittedly, in most cases this court has applied the relation back provision of OCGA § 9-11-15 (c) to amendments adding a party. See Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga. App. 14 (217 SE2d 358) (1975); Maelstrom Properties v. Holden, 158 Ga. App. 345 (280 SE2d 383) (1981); Horne v. Carswell, 167 Ga. App. 229 (306 SE2d 94) (1983); Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732 (307 SE2d 530) (1983); Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 (359 SE2d 362) (1987); Rose v. Kosilla, 185 Ga. App. 217 (363 SE2d 623) (1987).

However, in A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975), this court held that the addition of a new party who is altogether a stranger to the original suit is not contemplated by the relation back provision of OCGA § 9-11-15 (c). In Coley Elec. Supply v. Colonial Eggs of Alma, 165 Ga. App. 108, 109 (299 SE2d 165) (1983), this court found that the amendment adding “the development authority was not the substitution or change of a party, but was the addition of another defendant to the action, therefore, the initiation of the action against the development authority must be viewed as occurring at the time the development authority was added as a party defendant and not as relating back to the time of the original complaint.” Further, in Beaver v. Steinichen, 182 Ga. App. 303, 304 (355 SE2d 698) (1987), this court held that “[t]he amendments to add these parties do not relate back to the original suit under OCGA § 9-11-15 (c) because they are not a change of parties but amount to the commencement of the action as to new defendants ...”

By a strained and contorted reading of A. H. Robins, the majority opinion is able to jerk that case back in line with the cases that apply the relation back provision to amendments adding parties. The majority opinion similarly attempts to explain away Coley Elec. Supply v. Colonial Eggs of Alma and Beaver v. Steinichen, by describing them as “simply cases wherein all of the necessary elements of OCGA § 9-11-15 (c) for the addition of a new party were not satisfied.” In reality, however, those preconditions for relating back had absolutely no bearing in either case, and one has only to read the cases to discern that.

The majority opinion’s evolving esoteric equation or Orwellian observation that no conflict ever existed in the above cases is an efficacious disposition of a problem, but is factually faulty and falls flat as a false premise. This court no doubt has committed its share of errors during the eighty-one years of its existence. That fact is unfortunate and unavoidable, but most of the time in the past this court has acknowledged its mistakes and eaten crow for dessert. See Howard v. Superior Contractors, 180 Ga. App. 68, 72 (348 SE2d 563) (1986). It appears here that the majority opinion has forged a new method: state the rule it prefers and deny the existence of any conflict.

The majority opinion also professes to employ a strict statutory construction of OCGA § 9-11-15 (c). However, only by an ultra liberal construction is OCGA § 9-11-15 (c) applicable to amendments adding a party. That Code section provides that “[a]n amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” Strictly read, that section applies only to amendments changing a party. The preconditions for relating back are relevant only where the amendment seeks to change a party. To include “adding a party” within the meaning of “changing the party” goes beyond strict statutory construction; it inappropriately assimilates the two terms.

I note that in other respects the Code and case law have treated amendments adding parties differently from amendments changing parties. Before a party may be added by amendment, for example, leave of court must be granted. OCGA § 9-11-21. The trial court may disallow such an amendment, even though the limitations period has not expired, if the additional party would be prejudiced thereby or if the delay in naming the additional party is inexcusable. Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109 (308 SE2d 211) (1983). Amendments changing a party, however, may be filed without leave of court at any time before entry of a pretrial order. OCGA §§ 9-11-15 (a), (c). See Larson v. C. W. Matthews Contracting Co., 182 Ga. App. 356, 357 (1) (356 SE2d 35) (1987), wherein this particular distinction prompted Judge Benham to note that “[t]he substitution or change of a party differs from the addition or deletion of a party.” This distinction between amendments adding parties and amendments changing parties indicates a less open policy in allowing the former. Perhaps this more restrictive policy is based on a general concern over the relative fairness of allowing a party to bring in another party (in addition to the original parties) who could have been named originally, compared to situations where an amendment seeks a change to bring in the correct party. Whatever the basis for distinction, however, the legislature differentiated these two types of amendments, and this court has incorrectly removed that difference.

Decided March 18, 1988

Rehearing denied March 31, 1988

Richard W. Fields, for appellant.

James M. Collier, Samuel W. Worthington III, for appellee.

In summary, OCGA § 9-11-15 (c) by its own terms applies to amendments changing a party, and not to amendments adding a party. The cases applying this Code section are conflicting. I would follow the Code section and the case law holding that amendments adding a party do not relate back to the filing of the complaint, and overrule the above-cited cases that hold the contrary.


author: Beasley, Judge. Sognier, Judge,

text:
    75688, 75689.
    HEATH et al. v. THE STATE (two cases).
    (368 SE2d 346)
   Beasley, Judge.

Appellants Martha Heath and her son Tommy Heath were tried jointly with Joel Rolle and David Louissaint for the offense of trafficking in cocaine, OCGA § 16-13-31 (a) (1). Rolle and Louissaint were acquitted.

1. Both appellants contend the trial court erred by denying their motions for directed verdict of acquittal, based on want of evidence. However, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that they were joint parties to the crime, and so we must uphold the jury verdict in favor of which the evidence must be viewed. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Harris v. State, 166 Ga. App. 689 (1) (305 SE2d 428) (1983).

The evidence disclosed that based on information from four different informants in a space of seven days, regarding drug trafficking at the premises of Martha Heath, a sheriff’s department lieutenant obtained a search warrant for those premises. When the warrant was executed the lieutenant and an investigator approached the duplex from the rear, while five other law enforcement officers approached from the front.

This was a three-bedroom apartment in a housing project. When the police arrived after 12:30 a.m., people who were standing around outside scattered. Co-defendant Rolle tried to escape the police by running from the front to the backyard, but he fell while shaking out his pockets at the same time, exclaiming to police when caught that he was trying to rid himself of any cocaine residue which might be left from the night before.

Everyone in the apartment was brought into the living room. Martha Heath was brought from the bedroom area. Tommy was in the kitchen with his head on the table and his eyes closed and appeared intoxicated by something. A daughter who sometimes stayed in one of the bedrooms was also present. Rolle, the fellow who was caught outside, had come the day before from Florida with co-defendant Louissaint, who was in one of the bedrooms and displayed a knife when the deputy sheriff announced himself at the bedroom door. Moore was asleep in Martha Heath’s bedroom, and another of Martha Heath’s daughters may have been present in the apartment.

There was a single bed and a double bed in Martha Heath’s bedroom. Under a blanket in a corner of the single bed was a paper sack containing a quantity of rock cocaine, $970 in small bills, and government checks. Another bedroom contained just several boxes of curtains, in one of which there was a can with holes punched in a manner commonly used for smoking crack; it contained cocaine residue. Two more such cans, and a razor, were found in another bedroom. A marijuana plant was on a window sill. A copper tube commonly used to smoke cocaine was found behind the living room door; it contained residue of the same substance found elsewhere. Someone had tried to cram a medicine bottle containing four cocaine rocks in it between the armrest and the cushion on the living room sofa but partially failed.

What was particularly notable about all of the cocaine seized, including that from the envelope in Tommy’s front pocket when he was searched the next morning at the jail, was that it was all the same mixture, texture, shade of brown, and form. The laboratory chemist who tested it said it was “rare” to find cocaine cut with benzocaine, and she had seen only one other such case.

OCGA § 16-13-31 (a) (1) provides: “Any person . . . who is knowingly in actual possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine . . .” As stated, actual possession is required. Ramsay v. State, 175 Ga. App. 97, 100 (7) (332 SE2d 390) (1985).

The question is whether there was evidence of actual possession, which is the only type warranting a conviction. Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). As repeated in Lockwood, actual possession consists in this: “ ‘A person who knowingly has direct physical control over a thing at a given time is in actual possession of it ... .’ [Cits.]” The difference between actual and construetive possession “is most assuredly one of degree.” Dalton v. State, 249 Ga. 720, 721 (2) (292 SE2d 834) (1982). In that opinion, the Supreme Court adopted this court’s statement from CJS that the words actual and constructive possession “ ‘often so shade into one another that it is difficult to say where one ends and the other begins.’ ” Neal v. State, 130 Ga. App. 708, 711 (2) (204 SE2d 451) (1974).

There is no requirement that the proof of actual possession be by direct and not circumstantial evidence. It is the latter which authorized the convictions here. Secondly, to be convicted, neither had to “directly commit the crime.” OCGA § 16-2-20 (b) (1). Each is a party to the crime not only if he directly commits it but also if he “(3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” See Raines v. State, 186 Ga. App. 239 (366 SE2d 841) (1988).

There is no doubt whatsoever that the crime was committed by some one or more persons. A total of 40.6 grams of cocaine cut by benzocaine, or 29.07 grams of pure cocaine, was collected from Martha Heath’s apartment that night. Somebody had actual possession of it, in the legal sense. It would defy logic to say that it was lost or abandoned, or that at all times while it was in Martha Heath’s apartment it was only in constructive possession. Of the people present in the apartment when the police entered, four were indicted and the jury found that only two had actual possession themselves or were culpable parties. Appellants admit in this court that: “There is no doubt that State’s evidence established that someone was involved in Trafficking in cocaine in violation of O.C.G.A. § 16-3-31.”

Physical presence was not the only fact connecting appellants to actual possession. As in O’Neal v. State, 239 Ga. 532, 533 (238 SE2d 73) (1977), “there was evidence [in addition] here to support the jury’s finding of participation.” Also to be considered were what was found, where it was found, appellants’ reaction to the discovery, when it was found, and all other circumstances surrounding the event.

Insofar as “equal opportunity” or “equal access” is concerned, which the judge charged the jury on, that is a question of fact and therefore a jury question. Ramsay v. State, 175 Ga. App. 97, 99, supra. Just because several people were in Martha’s apartment when the various amounts of cocaine and connected paraphernalia were found in different locations does not conclusively establish that one or more of these people other than defendants had “equal access” to the contraband so as to block a finding of appellants’ possession. The circumstances here do not compel such a finding as a matter of law.

Another factor the jury was entitled to consider is that there was no explanation whatsoever, by way of even the slightest evidence at the scene, thereafter, or at trial, to exculpate either of these two appellants. OCGA § 24-4-9; Dorsey v. State, 204 Ga. 345, 352 (3) (49 SE2d 886) (1948); Pritchard v. State, 160 Ga. App. 105, 108 (4) (286 SE2d 338) (1981); McGee v. State, 172 Ga. App. 208, 209 (2) (322 SE2d 500) (1984); Brown v. State, 177 Ga. App. 284, 288 (4) (339 SE2d 332) (1985).

Weighing all of the circumstances revealed by the evidence was the jury’s prerogative, not ours, and we cannot conclude, applying the proper standard, that they could not find appellants guilty of joint actual possession of the cocaine either directly or as intentional aiders and abettors or intentional encouragers. As to the indirect roles, there was ample evidence that at the least, Martha Heath was permitting direct committers to use her apartment for trafficking, providing a haven, and Tommy was intentionally encouraging the trafficking by himself being a direct receiver.

2. Appellants claim the court erred in failing to give a complete charge on circumstantial evidence even though requested. There are no written requests in the record, nor did anyone recite it orally. After the court charged the jury, counsel stated: “Also, we requested the charge on circumstantial evidence. You defined circumstantial evidence, but didn’t give the charge about the rule of. . . .” Thus, because of the state of the record, we cannot compare what appellants may have requested with what the court gave. Requests not made part of the record cannot form the basis for reversal. Herndon v. State, 132 Ga. App. 747 (2) (209 SE2d 26) (1974). See also Harp v. State, 160 Ga. App. 575 (2) (287 SE2d 626) (1981).

On appeal, appellants argue that the charge on circumstantial evidence was misleading, nebulous, and failed to provide proper guidelines because it did not contain the rule of law stated in OCGA § 24-4-6.

The refusal to give a requested instruction on that code section is not error except when the case is totally dependent upon circumstantial evidence, Arnett v. State, 245 Ga. 470, 473 (4) (265 SE2d 771) (1980). In the absence of a request, it is not error to fail to charge on OCGA § 24-4-6 where the case is not close or doubtful and the charge on reasonable doubt is full and fair. Playmate Cinema v. State, 154 Ga. App. 871, 872 (2) (269 SE2d 883) (1980).

In reviewing the charge, we must consider it as a whole. Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). In so doing, we find that the court did not commit reversible error in failing to give in the language of the statute the principle contained therein. Contrary to appellants’ argument, and viewing the entire charge, the court did not fail in this respect to provide the proper guidelines for the jury to reach a verdict which spoke the truth.

Judgments affirmed.

Birdsong, C. J., Deen, P. J., Carley and Pope, JJ., concur. McMurray, P. J., Banke, P. J., Sognier and Ben- ham, JJ., dissent.

Sognier, Judge,

dissenting.

1. I respectfully dissent. No cocaine was found on any person in the duplex when it was searched, and the State, recognizing this fact, proceeded on the theory that the four co-defendants were in joint constructive possession of the cocaine. This court has held that OCGA § 16-13-31 (a) (1) requires actual possession of 28 grams or more of cocaine, or of any mixture containing cocaine, in order to be guilty of the offense of trafficking in cocaine. Ramsay v. State, 175 Ga. App. 97, 100 (7) (332 SE2d 390) (1985). This rule was reaffirmed in the recent case of Lockwood v. State, 257 Ga. 796, 798 (364 SE2d 574) (1988), in which the court held that the trial court erred by instructing the jury that the defendant could be convicted if he was in constructive possession of cocaine, because “[t]he statute clearly requires a finding of actual possession and not constructive possession.” Since the State proceeded on the theory of constructive possession, as stated in its brief, this court cannot become a factfinder and decide that there must have been actual possession in someone, and therefore, Martha Heath is guilty. To reach this conclusion the majority is assuming facts which are not in evidence, and which the State recognizes are not in evidence.

The only evidence connecting Martha Heath with the cocaine found in the duplex was the fact that she occupied the premises where the cocaine was found. However, the cocaine was found in bedrooms occupied by visitors, and in a medicine bottle stuffed into a couch in the living room which was accessible to everyone present. There is no evidence that Martha Heath was on the couch, or even near the couch.

It is general law in this State that merely finding contraband on premises occupied by the defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Blankenship v. State, 135 Ga. App. 482, 483 (218 SE2d 157) (1975); Nations v. State, 177 Ga. App. 801, 802 (1) (341 SE2d 482) (1986); Ramsay, supra at 99 (7). The evidence here establishes clearly that five of the six persons present were visitors, and all of them had access to the entire premises. Thus, the general rule of law just cited is applicable here.

I would also point out that Martha Heath’s conviction cannot be supported on the basis that cocaine was found on appellant Tommy Heath some ten hours later when he was frisked at the jail, as the evidence established that all persons in the duplex were searched at the duplex and no cocaine was found on Tommy Heath at that time. He had also been searched earlier at the jail and no cocaine was found on him. Thus, the evidence shows in regard to appellant Martha Heath that she was, at most, in joint constructive possession of the cocaine, which is not sufficient to support a conviction of trafficking in cocaine. Accordingly, I would reverse appellant Martha Heath’s conviction.

Decided March 18, 1988

Rehearing denied March 31, 1988.

Jerry M. Daniel, John Fleming, for appellants.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. I would also reverse appellant Tommy Heath’s conviction for trafficking in cocaine for the same reasons set forth in Division 1. However, Tommy Heath was found in possession of cocaine at the jail, and such evidence is sufficient to support a conviction of the offense of possession of cocaine because the possession of any controlled substance, regardless of amount, constitutes an offense. Dixon v. State, 180 Ga. App. 222, 224 (2) (348 SE2d 742) (1986).

I am authorized to state that Presiding Judge McMurray and Presiding Judge Banke join in this dissent.