author: Smith, Judge.

text:
    A98A0297.
    WHORTON et al. v. BOATWRIGHT.
    (504 SE2d 216)
   Smith, Judge.

In this medical malpractice action, the trial court granted a motion in limine excluding evidence regarding the physician’s consumption of alcohol. The trial court excluded two categories of evidence. First, the court excluded the testimony of plaintiff/appellant Robert Whorton that, in his opinion, the physician was under the influence of alcohol at the time of the alleged malpractice. The court also excluded any evidence of alcohol use by the physician two days later or the excessive or improper use of alcohol by the physician on other occasions over ten years before and two years after the alleged malpractice. Under the particular circumstances of this case, we conclude that the trial court did not abuse its discretion in excluding the evidence, and we affirm.

These rulings involve the application of long-standing principles of Georgia law. It is generally accepted that a lay witness may give opinion testimony after stating an adequate factual basis for the opinion. “This court has repeatedly held that a person’s state of mind or mental condition is properly the subject of opinion testimony and that after narrating the facts and circumstances upon which his conclusion is based, a nonexpert witness may express his opinion as to the state of mind or mental condition of another.” (Citations and punctuation omitted.) Briard v. State, 188 Ga. App. 490, 492 (2) (373 SE2d 239) (1988). Proper subjects of such lay opinion testimony include intoxication, Sweetenburg v. State, 197 Ga. App. 36, 37 (3) (397 SE2d 451) (1990), as well as sanity, Briard, supra.

But this admissibility is not absolute. For example, the trial court may determine as a matter of law that the underlying facts can be clearly described for the jury and, therefore, that allowing the jury to hear an opinion it could reach for itself would invade the jury’s exclusive province. Johnson v. Knebel, 267 Ga. 853, 857 (485 SE2d 451) (1997). Also, while ordinarily the sufficiency of the underlying facts to support the witness’s opinion is a jury question, when the reasons stated by the witness are “plainly and indisputably” insufficient, the court may so hold as a matter of law. Espy v. Preston, 199 Ga. 608, 609 (3) (34 SE2d 705) (1945) (denial of new trial error because reasons stated by lay witnesses insufficient to support opinions regarding insanity and testamentary capacity).

We also note that prior or subsequent incidents of negligence or misconduct are not generally admissible to show that a party was negligent on the occasion at issue. ‘With some rare exceptions each negligence case must be decided with reference to the particular transaction and no other, and to give the jury facts regarding previous or subsequent similar occurrences from which they may infer that the plaintiff or the defendant has been negligent or free from negligence in the same manner on other occasions is both irrelevant and prejudicial.” (Citations and punctuation omitted.) Carsten v. Wilkes Supermarket of Gwinnett County, 181 Ga. App. 834, 836 (2) (353 SE2d 922) (1987). Such evidence is considered “highly prejudicial to the issue of liability in the underlying negligence action.” Webster v. Boyett, 269 Ga. 191 (496 SE2d 459) (1998) (trial court did not abuse discretion in excluding evidence of prior DUI offense from liability phase of negligence action involving DUI). This rule also is subject to exceptions, such as those outlined in Leo v. Williams, 207 Ga. App. 321 (428 SE2d 108) (1993) (evidence of fixed and uniform habit), and similar decisions.

The trial court appears to have relied upon these principles in reaching its decision. The trial court noted that Mr. Whorton, in response to leading questions from counsel, stated as supporting facts for his conclusion observations that did not include the usual indicia of intoxication such as the smell of alcohol, bloodshot eyes, slurred speech, or lack of coordination. See, e.g., Clay v. State, 193 Ga. App. 377, 379 (387 SE2d 644) (1989) (bloodshot eyes and smell of alcohol insufficient factual basis for officer’s conclusion that defendant was less safe driver; compared to evidence of slurred speech, unsteady gait, and erratic driving). The trial court also noted that evidence of consumption of alcohol on other occasions was not probative of impairment on the occasion in question. While not allowing Mr. Whorton to state an opinion, the trial court permitted him to testify regarding his factual observations to the jury. The admission or exclusion of evidence on the ground of relevance lies within the sound discretion of the trial court. Pope v. Professional Funding Corp., 221 Ga. App. 552, 555 (3) (472 SE2d 116) (1996). Because, as the trial court noted, Mr. Whorton’s testimony included none of the “classic appearances of drinking on that occasion,” we cannot say that the trial court abused its discretion.

Also, because of the context in which this issue was presented, we must also consider the broad discretion given the trial court in refusing to amend a pretrial order. This issue was belatedly disclosed to the trial court on the morning of a specially set trial. As the trial court noted when the issue was first raised at the opening of the trial, the case had been on the trial calendar four times, and each trial notice indicated that motions in limine should be filed prior to calendar call. The case had been announced ready for trial. Neither the pleadings nor the pretrial order contained any indication that intoxication would be an issue in the trial. Both parties denied the existence of any peculiar evidentiary questions, and appellants provided no requests to charge on the issue. As the trial court observed, “both of you have played it close to the vest. You can’t complain about a last-minute order on a close issue.”

The substance of the challenged testimony must be gleaned from appellants’ brief proffer of testimony and the arguments of counsel on the opening day of trial. Discovery on this issue is incomplete; the record does not show that any of the two nurses and three other doctors who were present at the time of the alleged malpractice have been deposed regarding whether they observed signs of alcohol use or intoxication. No expert testimony has been presented regarding the degree of alleged impairment or its effect on the alleged malpractice.

“Once a pretrial order is entered, a party may not amend without leave of court or consent of the opposite party. ... In passing upon the issue of whether to allow an amendment, the trial court considers if permitting such amendment would prevent manifest injustice and in doing so it is clothed with a broad discretion with which the appellate courts are loath to interfere.” (Citations and punctuation omitted.) Dept. of Transp. v. Baxley, 194 Ga. App. 29, 30 (389 SE2d 519) (1989). Moreover, “[t]he burden is on the party seeking to amend the order to show lack of laches or lack of unexcusable delay in presenting the issue to the court.” (Citation and punctuation omitted.) Star Gas of Hawkinsville v. Robinson, 225 Ga. App. 594, 596 (3) (484 SE2d 266) (1997), rev’d on other grounds, Robinson v. Star Gas of Hawkinsville, 269 Ga. 102 (498 SE2d 524) (1998). In the absence of a viable claim of surprise or unfairness, a trial court’s refusal to amend a pretrial order is not an abuse of discretion. Mullinax v. Shaw, 143 Ga. App. 657, 661 (239 SE2d 547) (1977).

The Supreme Court of Georgia has emphasized the vital role of the pretrial order in ensuring an efficient and expeditious trial, as well as the duty imposed on each party to assist the trial court in preparing a pretrial order that accurately identifies the real issues in the case: “As noted by one federal court, if pretrial orders are to continue to serve their laudable purposes, courts and litigants must take them seriously. A final pretrial order should say what it means, and mean what it says.” (Citations, footnotes, and punctuation omitted.) Dept. of Human Resources v. Phillips, 268 Ga. 316, 318 (486 SE2d 851) (1997).

Decided June 23, 1998

Reconsideration denied July 13, 1998

Greer, Klosik & Daugherty, John F. Daugherty, William F. Collins, Robert J. McCune, for appellants.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, James B. Manley, Jr., for appellee.

The trial court made a commendable effort to consider on its merits the belatedly revealed evidence. But we cannot ignore that the parties, for whatever reason, failed to reveal to the court until the morning of a specially set trial a material issue known to them well before trial. Such an omission is not calculated to promote efficiency or the conservation of judicial resources, or to fully develop the relevant evidence. As the trial court correctly observed, “Isn’t this precisely the kind of thing that pretrial orders were formulated to avoid?” We must consider this failure to comply with the requirements and purpose of a pretrial order, as well as the failure to show absence of laches or lack of unexcusable delay, the broad discretion given the trial court in deciding whether to amend a pretrial order, and the trial court’s discretion in admitting or excluding evidence on the ground of relevance. Taking all these factors into account, we cannot say, in the unusual procedural circumstances of this case, that the trial court abused its broad discretion in denying appellants’ motion to amend the pretrial order and granting defendant’s motion in limine.

Judgment affirmed.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.

       In this action appellants have not sought punitive damages.

       It appears that the parties agreed privately, without a written stipulation, to omit the issue from the pretrial order pending settlement negotiations.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0521.
    LLOYD v. KRAMER et al.
    (503 SE2d 632)
   Judge Harold R. Banke.

Ann Lloyd sued her podiatrist, Jerald N. Kramer and his professional corporation, Dr. Jerald N. Kramer, R C., for medical malpractice, fraud, battery, breach of fiduciary duty, punitive damages, and costs. Enumerating two errors, Lloyd contests the partial summary judgment awarded to Kramer on all her claims except for malpractice.

The underlying case arose after Kramer operated on Lloyd’s right foot. Lloyd asserted that Kramer subjected her to inappropriate and unnecessary surgery during which he fused the joints of three toes and inserted pins in them and also performed a metatarsal osteotomy to shorten her second toe. Lloyd alleged that in obtaining her consent to medical treatment, Kramer fraudulently, knowingly, and deliberately made material misrepresentations both as to the nature of her medical condition and as to the need for surgery to correct it.

In moving for partial summary judgment, Kramer attacked one of the requisite elements of a fraud claim, claiming that Lloyd failed to show that he made a false representation to her with the intent to deceive. In granting partial summary judgment, the trial court found that Lloyd failed to offer evidence to show that Kramer knew that the procedures were unnecessary or that Kramer made fraudulent misrepresentations to her. The court decided that the written consent to medical treatment form foreclosed the battery claim. The court held that because Lloyd’s claim for breach of fiduciary duty was based on fraud and battery, it necessarily failed. Lloyd appeals this judgment. Held:

1. Lloyd contends that the trial court erred in granting partial summary judgment. She claims that the . record is replete with evidence from which fraud can reasonably be inferred.

Since fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. McNeil v. Cowart, 186 Ga. App. 411, 412 (1) (367 SE2d 291) (1988). OCGA § 23-2-57. “Proof of fraud is seldom if ever susceptible of direct proof, thus recourse to circumstantial evidence usually is required.” McNeil, 186 Ga. App. at 412 (1). Moreover, “[i]t is peculiarly the province of the jury to pass on these circumstances [showing fraud].” Farmers State Bank v. Huguenin, 220 Ga. App. 657, 661 (2) (469 SE2d 34) (1996). “ ‘Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination.’ [Cit.]” Huguenin, 220 Ga. App. at 661 (2). This is not such a case.

Lloyd’s evidence, when viewed in a light most favorable toward her, indicates that Kramer engaged in a pattern of misdiagnosis and needless but profitable operations. Lloyd’s expert, W. Allen Boyce, M. D., a board-certified orthopedic surgeon, testified that Lloyd had a Morton’s neuroma, a condition “easily distinguishable” from the hammer toe deformity for which Kramer improperly treated her. The gist of Boyce’s testimony was that the conditions of hammer toe and Morton’s neuroma are distinct, not overlapping, and hard to inadvertently confuse. Based on his examination of Lloyd and her medical records including her x-rays, Boyce determined that Lloyd never had any symptoms of hammer toes. In Boyce’s professional opinion, Kramer performed unnecessary and inappropriate surgery. Boyce stated that the usual remedy for a Morton’s neuroma is simply to wear a larger shoe size and the most extreme treatment is to snip the affected nerve after which the patient can walk away unassisted.

Lloyd testified that Kramer misled her into believing the surgery was necessary to remedy a neuroma and that Kramer failed to tell her that her joints would be fused and rendered permanently rigid. Kramer admitted that he told Lloyd that without the surgery her prognosis would be “poor.”

Lloyd offered colorable circumstantial evidence indicative of a pattern whereby Kramer made material misrepresentations to his patients of their medical conditions. It is undisputed that Kramer diagnosed Lloyd’s left foot, her mother’s foot and her husband’s as having hammer toe deformities. Yet, Lloyd’s expert testified that notwithstanding Kramer’s diagnosis to the contrary, neither Lloyd, nor her mother, nor her husband exhibited symptoms of hammer toe deformities. According to William Lloyd, Kramer diagnosed and treated him for a neuroma, yet on his second visit, Kramer told him he might have to have the same type of operation as his wife had.

Moreover, Kramer’s own expert, Dr. Mark Shaffer, a fellow practicing podiatrist, attested that he performs the hammer toe procedure at issue here in only two to five percent of his patients having that condition, resulting in no more than fifteen or twenty such operations per year. Kramer, however, did 225 hammer toe surgeries during the year of Lloyd’s operation.

Moreover, Lloyd asserted that Kramer altered her medical records after the surgery to falsely indicate that Kramer informed her that she had a hammer toe condition. An employee of Kramer admitted that she added, after the fact, a notation to the “welcome form” to indicate that Lloyd had a hammer toe condition. According to Lloyd, the consent form was altered after she signed it to reflect that the surgery was to correct a hammer toe condition.

Decided June 3, 1998

Reconsideration denied July 13, 1998

Ford & Harrison, John L. Monroe, Jr., Ross E. Longood, for appellant.

After construing this evidence more favorably toward Lloyd, as we must in this procedural context, we conclude that in light of these disputed material facts, Kramer was not entitled to summary judgment on the fraud count. Edwards v. Edwards, 267 Ga. 780, 781-782 (2) (482 SE2d 701) (1997). Whether Kramer made material misrepresentations to Lloyd as to her diagnosis and whether Kramer deliberately misled her as to the necessity of the procedure, are controverted. Although Kramer correctly asserts that Lloyd will have to prove each element of her fraud claim, including scienter, we cannot say on the disputed evidence before us that Kramer was entitled to judgment as a matter of law. Compare Cole v. Jordan, 161 Ga. App. 409, 410-411 (3) (288 SE2d 260) (1982) (physical precedent only).

Similarly, the battery issue should not have been subjected to summary adjudication. As a general rule, no tort is committed against a person who consents to medical treatment unless that consent is not freely obtained or is obtained by fraud. Harris v. Tatum, 216 Ga. App. 607, 608 (1) (b) (455 SE2d 124) (1995). A valid general consent negates any actionable claim for battery. Hutcheson v. McGoogan, 162 Ga. App. 657, 659 (292 SE2d 527) (1982). See OCGA § 31-9-6 (d) (fraudulent misrepresentations of material facts will annul an otherwise valid written consent).

In light of the inconsistencies between the testimony of Lloyd and Kramer regarding alleged misrepresentations relating to Lloyd’s consent, Kramer did not establish as a matter of law that he was entitled to judgment on the battery claim. Joiner v. Lee, 197 Ga. App. 754, 758-759 (2) (399 SE2d 516) (1990).

2. Having determined that material issues of disputed fact precluded summary judgment on the fraud and battery issues, we find that a jury must similarly resolve the claims for breach of fiduciary duty, punitive damages, and expenses of litigation. Carco Supply Co. v. Dick Clem &c., 194 Ga. App. 566, 567 (6) (391 SE2d 134) (1990) (punitive damages and attorney fees under OCGA § 13-6-11 may be recoverable when evidence proves fraud).

Judgment reversed.

Blackburn and Eldridge, JJ, concur.

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, Paul J. Pontrelli, for appellees.

       Morton’s neuroma is an inflammation or irritation of a nerve usually occurring in the web space between the third and fourth toe. A hammer toe deformity usually occurs in the second toe in which the main joint is bent upward like a claw, and is caused by an abnormality of the tendons in the toe.

       Lloyd’s recovery consumed many months, required wearing a cast, the use of a walker, and necessitated physical therapy.

       Based on professional examinations of Lloyd’s mother and husband, Dr. Boyce determined that neither of them had any hammer toe deformity.

       A deposition not considered by a trial court, may be considered on appellate review to determine the existence of disputed material facts. Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535) (1990). See Miller Grading &c. v. Ga. Fed. &c. Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981).


text:
    A98A0551.
    GOODMAN v. FROLIK AND COMPANY, INC. et al.
    (504 SE2d 223)
   Smith, Judge.

This appeal concerns the construction of an exclusive real estate listing agreement and the claims of a real estate broker and agents for a commission under that agreement. After reviewing appellant James E. Goodman’s numerous assertions of error, we find no error and affirm the trial court’s directed verdict in favor of real estate broker Frolik and Company, Inc. and its two affiliated agents on the issue of breach of contract. We also affirm the trial court’s decision to send to the jury the issue of expenses of litigation under OCGA § 13-6-11. Finally, we conclude that Goodman has demonstrated a consistent pattern of frivolous litigation for the purpose of delay and therefore grant appellees’ motion for imposition of penalties under Rule 15 (b) of this Court.

Plaintiff/appellee Frolik and Company, Inc. d/b/a Re/Max In Town (“Re/Max”) is a real estate broker, and appellees Kelly and Freeman are licensed real estate agents affiliated with Re/Max. On January 28, 1994, defendant/appellant Goodman signed an exclusive listing agreement with Re/Max to market a house he and his family were renovating for sale. The agreement provided for an exclusive listing from January 28, 1994 to April 30, 1994, with a six percent commission on any sale during that period. Goodman also agreed that the commission would be paid if, within 90 days of the termination of the agreement, the property was sold “to any person to whom the property had been submitted during the term of this agreement.”

In early 1994, Guillermo and Judith Rivera, represented by two other Re/Max agents, were looking for a home in the Virginia-Highlands area. The Riveras drove by the Goodman property, saw the Re/Max sign, and attended an open house held by Kelly and Freeman. They later revisited the house with their agents. On March 20, 1994, the Riveras presented, in writing, a proposed real estate purchase contract on the property. Goodman made a counteroffer through the Riveras’ agents, but the Riveras decided not to accept it and broke off negotiations at that time. On May 3, 1994, after the listing agreement expired, the Riveras presented the same purchase contract form, changed with correcting fluid. The revised contract resulted in the same net price “exactly to a penny” that Goodman would have received on the original price, less the commission. Goodman accepted the revised contract, and the closing took place on June 30,1994. The 90-day extension period ended one month later, on July 30, 1994.

When Kelly and Freeman discovered that the property had been sold to the Riveras during the extension period, Kelly and an attorney for Re/Max sent letters to Goodman demanding the commission. When Goodman refused, plaintiffs brought this action seeking damages for breach of contract and expenses of litigation, including attorney fees, under OCGA § 13-6-11. After the close of the evidence at trial, the trial court denied defendant’s motion for directed verdict and granted plaintiffs’ motion for directed verdict on the issue of breach of contract and commission owed, but let the issue of attorney fees go to the jury. The jury returned a verdict in favor of plaintiffs for $10,729.26, the full amount requested. Goodman filed four separate motions for new trial and for j.n.o.v. These were denied, and he appeals.

1. Goodman’s primary defense to Re/Max’s claim is lack of notice. He contends he had never heard of the Riveras, never knew that they were interested in the property during the exclusive listing period, and never saw the first contract. But whether Goodman received notice of the Riveras’ offer is irrelevant under the clear terms of the listing agreement. “[E]ach contract by which one employs another to sell real estate must be construed according to its particular stipulations.” Howington v. Farm & Home Realty, 148 Ga. App. 501, 504 (251 SE2d 591) (1978). This comports with the general rule that in construing contracts “the language used must be afforded its literal meaning and plain ordinary words given their usual significance. If the terms used are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense.” (Citations and punctuation omitted.) Twin Oaks Assoc. v. DeKalb Venture, Ltd., 190 Ga. App. 854, 855 (380 SE2d 469) (1989). “[T]he first rule that courts must apply when construing contracts, including real estate contracts, is to look to the plain meaning of the words of the contract.” Athens Wheel v. C & S Trust Co., 201 Ga. App. 779, 780 (1) (412 SE2d 278) (1991).

While Goodman claims the agreement is ambiguous, the language in question has been interpreted in several Georgia decisions. The term “submitted” includes showing a home to an individual “as a potential purchaser.” Lowe v. Hadley, 193 Ga. App. 525 (388 SE2d 394) (1989). See also Ragsdale v. Smith, 110 Ga. App. 485 (138 SE2d 916) (1964), interpreting similar language. At trial, Re/Max’s broker testified that the language in question was part of Re/Max’s standard listing agreement; based on her years of experience in real estate, “submitted” included, among many other things, showing the property to a potential prospect. This testimony was not controverted by Goodman. Moreover, the trial court rejected Goodman’s contention that Re/Max was required to show its agents were the procuring cause of the sale, and Goodman does not appeal this ruling.

As for Goodman’s contention that he was entitled to notice, this Court has held that virtually identical language in an exclusive listing agreement, without any mention of notice, would entitle the broker to a commission if the property was sold within the 90-day extension period. Howington, supra at 504. Other cases have construed the same language with the addition of an express notice clause. See, e.g., Boss & Bowen, Inc. v. Head Realty Co., 137 Ga. App. 553 (224 SE2d 459) (1976); Kenney v. Clark, 120 Ga. App. 16, 18 (2) (b) (169 SE2d 357) (1969).

The agreement at issue here, like that in Howington, did not contain the notice language included in the Boss & Bowen and Kenney agreements, and Goodman acknowledged at trial that the agreement did not provide for notice. He contended that it was his “understanding” that Re/Max would notify him but admitted that this was not in the written agreement and that he never asked for a clarification of the term or the notice he now contends he was entitled to receive. When a contract such as a real estate listing agreement is silent as to a purported obligation, parol evidence of an additional term or “understanding” is not admissible to add to or vary from the written contract: “[a]n additional obligation can not be grafted thereon by parol testimony.” (Citations and punctuation omitted.) Garcia v. Unique Realty &c., 205 Ga. App. 876, 879 (424 SE2d 14) (1992) (no obligation on realtor to investigate buyers’ financial condition in absence of express provision in listing agreement). See also Sherin v. Dept. of Human Resources, 229 Ga. App. 621, 626 (5) (b) (494 SE2d 518) (1997) (alleged contractual duty to reveal information “was not incorporated into the agreement signed and is not a factor in interpreting the unambiguous language of the written contract. [Cits.]”).

The Georgia cases relied upon by Goodman to show an implied duty of notice deal with non-exclusive or “open” listing agreements in which no commission is owed for buyers not obtained through the efforts of the real estate agent. See, e.g., Pate v. Milford A. Scott Real Estate Co., 132 Ga. App. 49 (207 SE2d 567) (1974). Goodman also cites decisions from Kentucky, Ohio, California, and New York providing for an implied obligation of notice. But these cases obviously are not binding in the face of Howington, approving the language used in this agreement, and Garcia, holding that implied obligations cannot be engrafted by parol onto a written real estate listing agreement. Goodman’s contention that he was entitled to notice not provided for in the agreement is without merit.

2. Goodman also asserts that the trial court erred in denying his motion for directed verdict as to Kelly and Freeman. He contends they should not have been parties to this action because they are not third-party beneficiaries of the agreement. Both Kelly and Freeman signed the listing agreement, and the agreement itself expressly contemplates allocation of the commission.

We need not reach this contention, however, because Goodman did not raise it in a timely fashion below. The trial court correctly noted that Goodman never raised lack of standing as an issue in his pleadings. Further, this contention does not appear in the final pretrial order, which provides that no such motion is pending and does not enumerate it as a legal issue requiring special authorities. Goodman did not seek to amend the pretrial order; he did not raise the issue until the call of the case for trial. In the absence of a viable claim of surprise or unfairness, the trial court does not abuse its discretion in refusing to amend a pretrial order. Mullinax v. Shaw, 143 Ga. App. 657, 661 (239 SE2d 547) (1977). “The Code imposes a duty on each party to assist the trial court in formulating the pretrial order by defining the issues for trial, and deciding such other matters as may aid in the disposition of the action. This process is prescribed in the hope of promoting efficiency and conserving judicial resources by identifying the real issues prior to trial, thereby saving time and expense for everyone. ... As noted by one federal court, if pretrial orders are to continue to serve their laudable purposes, courts and litigants must take them seriously. A final pretrial order should say what it means, and mean what it says.” (Citations, footnotes, and punctuation omitted.) Dept. of Human Resources v. Phillips, 268 Ga. 316, 318 (486 SE2d 851) (1997).

3. Goodman also enumerates as error the trial court’s denial of his motion for directed verdict on the issue of misnomer. While this action was originally filed in the trade name “Re/Max In Town” under which Frolik and Company holds its real estate license, plaintiffs moved in September 1996 to correct the name to “Frolik and Company, Inc. d/b/a Re/Max In Town.” Plaintiffs also filed an amended complaint on June 9, 1997, before entry of the pretrial order, correcting the name. Once again, the trial court noted that Goodman never raised the issue of misnomer in his pleadings and did not respond to plaintiffs’ motion. Plaintiffs were authorized to amend their complaint at any time before entry of the pretrial order to correct the misnomer. White v. Lance H. Herndon, Inc., 203 Ga. App. 580 (2) (417 SE2d 383) (1992); U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730, 731 (391 SE2d 707) (1990).

4. Goodman contends the evidence was insufficient to submit to the jury the issue of expenses of litigation under OCGA § 13-6-11. As outlined above, however, the plain language of the agreement established Goodman’s obligation to pay plaintiffs a commission, and the trial court correctly directed a verdict on the issue of his liability for the commission. Goodman’s position challenging his clear obligations under the agreement is wholly without merit. At a minimum, this raised a jury issue as to whether no bona fide controversy or dispute existed and authorized a recovery for stubborn litigiousness or causing unnecessary trouble and expense. King Industrial Realty v. Rich, 224 Ga. App. 629, 635 (6) (481 SE2d 861) (1997). See also Division 6, below.

5. Finally, Goodman asserts the trial court erred in refusing to consider an affidavit he filed with his motion for new trial, arguing that it contains newly discovered evidence. But Goodman has made no effort to comply with the six well-established requirements to obtain a new trial on the ground of newly discovered evidence, including due diligence. See Shilliday v. Dunaway, 220 Ga. App. 406, 408 (2) (469 SE2d 485) (1996). He simply filed, separately from any of his four post-trial motions and without a cover pleading, an affidavit from a real estate broker testifying to the customs of the trade concerning notice to the property owner of prospective buyers. Goodman’s original motion for new trial recited that “[t]here is newly discovered evidence . . . which could not have been earlier discovered by due diligence.” But in his lengthy supplemental brief in support of the motions we can find no mention of the affidavit. The affidavit itself does not provide any explanation for its untimely presentation. Moreover, it is obvious that the subject matter of the affidavit, dealing as it does with the customs of the Atlanta real estate trade over a period of 33 years, could have been discovered before trial. The trial court correctly struck the affidavit.

6. Plaintiffs have moved for frivolous appeal penalties. While Goodman asserts that “the proceedings to date in this case have violated due process and fundamental notions of basic fairness,” the record in this case demonstrates otherwise. In addition to the conduct already noted in this opinion, Goodman continued, even at trial, to contest matters that were not in dispute. For example, he denied in his opening statement that he had ever met Kelly or Freeman; on cross-examination, he admitted that he had met them but contended he had failed to recognize them in court. He only reluctantly admitted, after repeated questioning, that the Riveras signed a contract during the exclusive period. He also acknowledged that a commission would be owed for buyers who “seriously negotiated on the property” but denied that the Riveras did so.

Goodman’s repeated protestations that he was an unsophisticated seller and uninvolved in the project are unsupported by the record. This property was not Goodman’s residence, but an investment property bought for the purpose of renovation and sale. His daughter testified that the property was a “family project” and that her parents participated. It is apparent from Goodman’s testimony as a whole that he is not a novice in the area of construction and sale of real property. In addition, as the owner of the property and party to the listing agreement, Goodman had an obligation to familiarize himself with the agreement’s terms and ensure they were carried out.

Even more significantly, Goodman is a long-time member of the bar who represented himself pro se through the trial and his multiple motions for new trial. Although he testified that he is not a real estate attorney and his primary area of specialty is trial law, he also acknowledged that since his admission to the bar in 1968, his practice has always included contract work. As an attorney of 30 years’ standing, Goodman knew or should have known that the “notice” argument forming the primary basis of his appeal is without merit under Georgia law, since it is contrary to the parol evidence rule and the plain language of the listing agreement that he signed. His belated attempts to challenge the standing of Kelly and Freeman and the misnomer of Re/Max were untimely, and he failed to include them in the pretrial order below. Goodman’s “newly discovered evidence” argument is also without merit, and as an experienced trial lawyer, he was or should have been well aware of this. The failure to present these issues properly to the trial court was due in large part to Goodman’s conduct while attempting to represent himself. He neglected to file necessary motions, failed to respond to others, and failed to include legal issues in the final pretrial order, although he nevertheless attempted to raise those issues on appeal.

In addition, Goodman persistently sought to delay the proceedings below. Appellees point out that Goodman requested two extensions of time to respond to their motion for summary judgment and also requested a continuance of the trial. As noted above, Goodman filed four motions for j.n.o.v. and for new trial. These attempts to delay have continued on appeal; Goodman has requested extensions of filing deadlines on three separate occasions in this Court. He also attempted to avoid filing a supersedeas bond as ordered by the trial court, seeking to post a property bond with encumbered real estate.

Decided June 23, 1998

Reconsideration denied July 13, 1998

Goodman & Bush, Norman L. Smith, for appellant.

James E. Goodman, pro se.

Smith, Gamhrell & Russell, Marcia M. Ernst, for appellees.

Under these circumstances, it is apparent that Goodman’s appeal is wholly without merit and was undertaken primarily if not entirely for purposes of delay. As a member of the bar, Goodman is or should be aware of the frivolity of this appeal even though he is no longer appearing pro se. Accordingly, we conclude this appeal is frivolous and impose a penalty of $1,000 against Goodman pursuant to Court of Appeals Rule 15 (b).

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       This claim is hotly disputed by Re/Max, which presented testimony and evidence that Goodman received the first offer via fax at his own request, discussed it at length with Kelly over the telephone, then presented a counteroffer to the Riveras seeking more earnest money. Freeman testified that he was present during this conversation. The Riveras also testified that they received a counteroffer from the owner but decided not to continue the negotiations at that time.

       This Court found in favor of the seller in Howington, however, because no sale of the property took place within the 90-day extension period. Id. at 503-504.

       In this 43-page brief, Goodman cites among other irrelevant items the Statute of Uses, 1536, 27 Hen. VIII, c. 10, and the Statute Quia Emptores, 1290, 18 Edw., c. 10.


text:
    A98A0559.
    GENERAL MANUFACTURED HOUSING, INC. v. MURRAY et al.
    (504 SE2d 220)
   Judge Harold R. Banke.

Barry Murray brought an action for personal injuries against General Manufactured Housing, Inc. (“GMH”) and his wife asserted a loss of consortium claim. Enumerating four errors, GMH appeals the judgment entered on the jury’s verdict.

On appeal, the evidence must be strongly construed to support the jury’s verdict and the judgment entered thereon. Walker v. Bruno’s, Inc., 228 Ga. App. 589 (492 SE2d 336) (1997). Viewed in this manner, the evidence showed that GMH contracted with Patterson Roof Cooling (“Patterson”) to install an evaporative roof cooling system for its manufacturing plant. Patterson subcontracted with Murray Plumbing for some plumbing work. GMH’s roof was comprised of metal panels interspersed with fiberglass panels. As Murray, an experienced master plumber, was up on the roof installing sprinkler pipes, he suddenly plunged through a fiberglass skylight. Murray suffered catastrophic injuries including a crushed skull fracture and a severe brain injury. At the time of trial, his medical bills already exceeded $285,000.

The evidence conflicted as to the exact cause of the fall. Murray, who had no memory of the incident and who had sustained serious mental impairment, did not testify. Rockland Redmond, the on-site project manager, was the closest witness and had a full view of Murray at the time of the incident. Redmond testified that he observed Murray kneeling while he glued a piece of pipe. When Murray stood up and took a half step backward, the metal roof flexed downward moving under Murray’s weight causing Murray to momentarily step backward onto the skylight as he tried to catch his balance. According to a witness, after Murray fell he saw a several inch rip or tear in the metal that had not been there before he fell.

Although GMH had replaced half of the roof, the area where Murray was working had not been repaired since 1971. Industry standards and the applicable Ware County ordinance mandated that all areas of roofs including skylights support a 200 pound load and Murray weighed 185 pounds or less. According to Redmond, who had installed cooling systems on 50 or 60 similar roofs, he had never seen fiberglass panels in a worse condition.

A civil engineer and former University of Florida professor, Don Halperin, Ph.D., testified that due to corrosion and aging, areas of the roof had become unsafe and defective. According to Halperin, the structural integrity of the roof could have been checked by using a simple test with a screwdriver in areas of obvious or suspected rust. GMH presented no evidence that the roof had been inspected for strength, even though Murray’s expert testified that such metal roofs often develop serious structural problems after 20 years. GMH contests the judgment entered on the jury verdict. Held:

1. GMH contends that the trial court erred in refusing to direct a verdict and by refusing to grant its motion for judgment notwithstanding the verdict. GMH claims that it was entitled to a directed verdict because: (1) GMH met its statutory duty to warn; (2) Murray’s evidence was insufficient to sustain the verdict; (3) Murray assumed the risk of injury as a matter of law; (4) Murray failed to exercise ordinary care for his own safety as a matter of law; and (5) as a matter of law, Murray had equal knowledge of the danger.

A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a). Jet Food Stores v. Kicklighter, 226 Ga. App. 552 (487 SE2d 120) (1997). Because the verdict had evidentiary support, this is not such a case. F.A.F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

The cause of Murray’s fall was vigorously disputed. Although the testimony indicated that Murray was aware of the potential danger of the skylights, and, in fact, Murray had cautioned members of his crew to be careful around them, that evidence did not demand a finding that Murray knew the metal roof was susceptible to moving or ripping. Whether the undulating motion of an unstable area of the roof combined with the skylight’s inability to support Murray’s weight caused Murray to fall was a question requiring jury resolution. See Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990) (cause in fact and proximate cause are undeniably jury questions except in plain and undisputed cases).

Issues of negligence, contributory negligence, and the lack of ordinary care for one’s own safety should generally be resolved at trial, as here, by the factfinder. Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336) (1976). See Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984). GMH’s theory that Murray forgot where he was standing and negligently stepped back directly onto a skylight, thereby causing his own fall, cannot be embraced as a matter of law, as proving that Murray failed to exercise reasonable care for his own safety. Compare Craig v. Lakeshore Marine, 228 Ga. App. 141, 143-144 (491 SE2d 197) (1997) (physical precedent only) (recovery foreclosed where person deliberately dove headfirst into a lake of unknown depth without checking the depth of the water). Here, there is no evidence that Murray deliberately decided to step onto a fiberglass panel without ascertaining whether it could support his weight. See Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997) (controverted factual issues necessitate jury resolution).

Notwithstanding GMH’s claim to the contrary, whether GMH fulfilled its duty to warn Murray of the hidden danger of the roof’s condition including both the metal and fiberglass portions was a jury issue. See Schultheiss v. Prentiss Properties, Ltd., 227 Ga. App. 560, 561 (1) (489 SE2d 545) (1997) (owner or occupier has duty to warn of hidden dangers or defects not readily observable to invitees exercising ordinary care); OCGA § 51-3-1.

Similarly, the affirmative defense of assumption of risk is not normally susceptible to a directed verdict. To have assumed the risk, Murray must have subjectively had actual knowledge of the specific, particular risk of harm associated with the condition that proximately caused his injury. Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). Inasmuch as all aspects of this defense were vigorously disputed at trial, a directed verdict would been improper. OCGA § 9-11-50 (a).

2. GMH claims that the court erred in its instruction on the duty of a premises owner to inspect. The court charged, “A premises owner is required to use ordinary care in inspecting the premises for defects that might be dangerous to invitees and is presumed to know of a defect in the premises if it was discoverable through a reasonable inspection.” In excepting to the charge, GMH stated, “I have some question as to what an owner of the building is presumed to know now and I want to reserve that on appeal.” Pretermitting whether this lack of specificity served to properly apprise the court of GMH’s reason for objecting, we find that the charge was a correct statement of the law and not inapplicable to the facts in evidence. Allstate Ins. Co. v. Justice, 229 Ga. App. 137, 140 (3) (493 SE2d 532) (1997). An expert witness testified without contradiction that the defective condition of the roof was discoverable upon a proper inspection. See Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992). Nor did GMH provide evidence that it was not the owner of the building when the roof was constructed. Compare Nelson v. Polk County Historical Society, 216 Ga. App. 756, 759 (3) (456 SE2d 93) (1995) (unauthorized improvement added by tenant without landlord’s consent does not, without more, trigger liability for landlord).

Decided June 23, 1998

Reconsideration denied July 13, 1998.

Howard, Carswell & Bennett, Kenneth R. Carswell, for appellant.

Gibson & Spivey, Douglas L. Gibson, for appellees.

3. The trial court did not err in its instruction on an invitee’s duty to look for defects. The charge at issue provided, “Because an invitee is entitled to rely on the possessor of the premises to exercise reasonable care to make the premises safe, the invitee is not required to look continuously for defects.” In a similar fact situation, where a laborer fell through a hole in a roof, the Supreme Court stated “looking continuously in all directions is not required in all circumstances.” Ellington, 237 Ga. at 238.

4. GMH contends that the court erred in refusing to give its requested charge on equal knowledge. Even assuming for the sake of argument only that GMH’s objection was properly asserted, the purported error was harmless because the instruction as a whole covered the basic legal principles underlying the requested charge. Mattox v. MARTA, 200 Ga. App. 697, 700 (6) (409 SE2d 267) (1991).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


author: Judge Harold R. Banke. Pope, Presiding Judge,

text:
    A98A0777.
    NELSON v. THE STATE.
    (503 SE2d 335)
   Judge Harold R. Banke.

Calvin Leon Nelson was convicted of aggravated assault, kidnapping with bodily harm, and armed robbery. He received two concurrent life sentences without parole on the kidnapping and armed robbery charges and a concurrent twenty-year sentence for the aggravated assault. He enumerates three errors on appeal.

This case arose late at night as the victim was about to enter her car in a Wal-Mart parking lot. Nelson suddenly appeared, slipped a paper bag over her face, and repeatedly punched her. He took her keys, opened the door, and pushed her onto the floorboard, at which point, the bag came off her head. When she begged him to let her go, he responded, “Shut up bitch, or I’m going to kill you with this” and showed her a hatchet which had been strapped to his leg. While he was trying to start the car, the victim continued to cry and beg him to release her. As Nelson pulled away, the victim managed to get the door open, and Nelson lunged for her and repeatedly hit her with the hatchet as they both rolled out of the car. When two men, responding to the victim’s cries for help, approached, Nelson ran. During the ensuing pursuit, a police car ran him down, at which point he was apprehended. The victim’s head, neck, shoulder and right hand, and arm were injured. Held:

1. Nelson maintains the evidence that he used an offensive weapon to take the car is insufficient to sustain his armed robbery conviction. We are constrained to agree.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a). Although a conviction may be upheld even if the victim never saw or described the weapon, some physical evidence of a weapon or some proof from which the presence of a weapon may be inferred is required. Howard v. State, 201 Ga. App. 164, 165 (1) (410 SE2d 782) (1991); Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987). When the weapon is unseen, “[t]he question is whether the defendant’s acts created a ‘reasonable apprehension on the part of the victim that an offensive weapon (was) being used.’ ” Johnson v. State, 195 Ga. App. 56, 57 (1) (a) (392 SE2d 280) (1990).

Our decision turns on the fact that under Georgia law the force essential to armed robbery must either precede or be contemporaneous with, and not subsequent to, the taking. Maddox v. State, 174 Ga. App. 728, 729 (1) (330 SE2d 911) (1985); see LaFave & Scott, Criminal Law, § 8.11, p. 437 (1986). For example, in Gatlin v. State, 199 Ga. App. 500 (1) (405 SE2d 118) (1991), we reversed an armed robbery conviction for insufficient evidence where the defendant grabbed some money from an open cash register drawer, and the clerk immediately snatched it back. Only then, in an effort to retrieve the money, did the robber display a gun, but the clerk refused to yield to his threat and nothing of value was taken by use of the gun. Id. We found the evidence of use of a weapon during the taking was insufficient to support an armed robbery conviction. Id. at 501 (1).

Here, the victim necessarily did not see the hatchet when Nelson took the car, because he placed a bag over her head as she was about to unlock her door. The victim testified that Nelson hit her with his hand and fist, told her to “shut up,” took her keys, opened the door, pushed her into the car, and got in the driver’s seat. Only after Nelson took complete control of the car, while the victim was crouched in the passenger side floorboard begging for release, did he threaten her with the hatchet. The weapon did not figure until after the car was taken. Gatlin, 199 Ga. App. at 501. Nor is there evidence that Nelson ever feigned possession of a weapon. Compare Johnson, 195 Ga. App. at 57 (1) (a).

Although the dissent seeks to rewrite the armed robbery statute, we feel constrained to follow the law. Our statute requires that the taking be effectuated by the use of an offensive weapon, which, as the indictment stated, was a hatchet. Without question, the evidence shows that Nelson took the vehicle without displaying the hatchet or implying that he had any weapon at all. After Nelson took the keys, opened the door, pushed the victim into the passenger floorboard and placed the keys in the ignition, the robbery was complete. Barnett v. State, 204 Ga. App. 588, 589 (2) (420 SE2d 96) (1992) (robbery complete when cash in register was taken into defendant’s possession); Miller v. State, 174 Ga. App. 42, 45 (5) (329 SE2d 252) (1985) (robbery complete when wallet was taken from victim); Miller v. State, 169 Ga. App. 668, 669 (2) (314 SE2d 684) (1984). At that point, the terrified victim was subdued. Cf. Emmett v. State, 199 Ga. App. 650, 651-652 (3) (405 SE2d 707) (1991).

This fact distinguishes Emmett, on which the dissent relies. In Emmett, we found that the robber used a weapon to acquire and maintain control of the vehicle. Id. at 652. Here, Nelson acquired control without using a weapon. When Nelson first showed the victim the hatchet, she was cowering on the floorboard begging for her release. There is no evidence that the victim in any way challenged Nelson’s possession of the car or that he used the weapon to maintain possession.

The victim’s testimony belies the dissent’s inventive twist on the facts as a “continuous” armed robbery. It shows that at no time did she attempt to regain control of her car or make any effort to dispute possession of it. Compare Emmett, 199 Ga. App. at 652. Nothing in the record supports a finding that Nelson used the weapon to maintain his control over the car. Compare id.

Had the victim here fought to reclaim her vehicle or had Nelson used the hatchet to take a number of the victim’s belongings over an uninterrupted period of time, a finding that the robbery was a continuous transaction would be justified, but the record does not support such findings. Compare Emmett, 199 Ga. App. at 652; compare Watkins v. State, 207 Ga. App. 766, 768 (1) (b) (430 SE2d 105) (1993). Under this proof, we cannot say the State made any showing that during the actual robbery a weapon was used or the victim reasonably apprehended that a weapon was being used. Gatlin, 199 Ga. App. at 500-501 (1); see Moody v. State, 258 Ga. 818, 820 (1) (375 SE2d 30) (1989); Watkins, 207 Ga. App. at 768-769 (1) (c).

Further, the indictment charges that both the armed robbery and the aggravated assault were committed with the hatchet. Under the facts of record, the aggravated assault charge would necessarily merge with the armed robbery charge, had that issue been properly preserved. See Herndon v. State, 229 Ga. App. 457, 460-461 (11) (494 SE2d 262) (1997); cf. Taylor v. State, 219 Ga. App. 475, 478 (4) (465 SE2d 473) (1995).

Because the evidence is more than sufficient to establish the lesser included offense of robbery by intimidation, this case is remanded for a new trial or resentencing on the lesser included offense. OCGA § 16-8-41 (a); Talbot v. State, 198 Ga. App. 636, 637 (1) (402 SE2d 366) (1991).

2. In his second and third enumerations, Nelson argues that for sentencing purposes (1) his aggravated assault charge should have merged with the kidnapping with bodily injury charge and (2) the aggravated assault charge should have merged with the armed robbery charge. However, the record contains no showing that Nelson raised these issues in the trial court before, during, or after trial. Edmonson v. State, 212 Ga. App. 449, 451 (3) (442 SE2d 300) (1994). Accordingly, these enumerations are not properly before us for appellate review. Id.; Basu v. State, 228 Ga. App. 591, 593 (2) (492 SE2d 329) (1997).

Moreover, had the issues been properly preserved, we would affirm. The facts show that the aggravated assault, described in the indictment as occurring when Nelson hit the victim with the hatchet, transpired as the victim managed to crawl from the car. The kidnapping occurred earlier, as Nelson beat the victim into the car and drove off. The disposition of Division 1 renders moot any merger argument regarding the armed robbery charge.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Blackburn, Ruffin and Eldridge, JJ., concur. Andrews, C. J, and Pope, P. J., concur in part and dissent in part.

Pope, Presiding Judge,

concurring in part and dissenting in part.

I respectfully dissent from the majority’s opinion in Division 1, as the evidence adduced at trial supports the conviction for armed robbery.

The record shows that when the victim reached her car, Nelson attacked her and shoved her into her car. Sometime during that struggle, Nelson took the victim’s car keys. While they were in the car, the victim was crying and pleading with Nelson to let her go, and he showed her a hatchet and threatened to kill her. After threatening the victim with the hatchet, Nelson started the car and began to drive it away. When Nelson brandished the hatchet, the robbery was an ongoing event. Thus Nelson used the hatchet “to acquire and maintain superiority” over the victim in order to accomplish the armed robbery. Emmett v. State, 199 Ga. App. 650, 651-652 (405 SE2d 707) (1991). Cf. Watkins v. State, 207 Ga. App. 766, 768 (430 SE2d 105) (1993) (sustaining indictment averring armed robbery committed with gun, even though money was taken while knife was held to victim’s neck, where gun was used later “to retain illegal control and possession” over money as a part of “a continuous armed robbery transaction”).

In Emmett, the defendant entered a UPS truck, pointed a gun at the driver, and ordered him to drive to a parking lot. There, he told the driver to get in the back of the truck where he tied the driver up and began driving the truck himself. This Court was considering the issue of whether the defendant’s armed robbery conviction merged into the offense of kidnapping. The Court held that the kidnapping was complete when the defendant entered the truck, pointed the gun at the victim and ordered him to drive away. The armed robbery occurred when the defendant used the gun to “acquire and maintain superiority” over the victim. Emmett, 199 Ga. App. at 651-652.

In this instance, while Nelson was able to force the victim into the car and take the keys without the use of a weapon, he pulled the hatchet to acquire and maintain superiority over the victim once they were in the car. Contrary to the majority opinion, I do not believe it was necessary for the victim to be actively resisting Nelson at the time he pulled the hatchet in order to determine the robbery was still in process. The use of the hatchet gave Nelson control over the car, allowing him to start it and drive it away. Thus, the use of the weapon was not “subsequent” to the robbery but “contemporaneous with it.” Young v. State, 251 Ga. 153, 157 (303 SE2d 431) (1983). The hatchet was an integral and necessary component for completing the robbery.

Decided June 25, 1998

Reconsideration denied July 13, 1998

Merritt & Rose, C. Nathaniel Merritt, for appellant.

Dupont K. Cheney, District Attorney, John T Durden, Jr., Assistant District Attorney, for appellee.

Nelson’s conviction for armed robbery should be affirmed.

I am authorized to state that Chief Judge Andrews joins in this opinion.

       The dissent’s reliance on Watkins v. State, 207 Ga. App. 766 (430 SE2d 105) (1993), is also misplaced. In Watkins the defendants robbed the victim of his money using a knife, entered his home and took a gun, which they then used to force him into the trunk of his car, which they drove to another location. Id. at 766-767 (1). After a significant period of time, they took his watch without using or threatening to use a weapon. This Court found the evidence insufficient to support the charge of armed robbery of the watch. Id. at 769 (1) (c). Because the defendants in Watkins used weapons to take a number of the victim’s belongings over an uninterrupted period of time, the Court described the crime as a continuous transaction. Id. Such is not the case here where only the victim’s car was taken.

       We note that Emmett does not address the requisites of a “continuous” or “ongoing” crime.


author: Andrews, Chief Judge.

text:
    A98A1290.
    THE STATE v. LEWIS.
    (504 SE2d 242)
   Andrews, Chief Judge.

Rachel Yvonne Lewis was charged with driving a vehicle under the influence of marijuana (OCGA § 40-6-391 (a) (6)), driving a vehicle under the influence of drugs to the extent that she was a less safe driver (OCGA § 40-6-391 (a) (2)), possession of less than one ounce of marijuana, and following too closely. In response to Lewis’ motion to suppress, the trial court entered a pretrial order suppressing evidence of any drug or substance other than alcohol discovered in tests performed on Lewis’ blood and urine. The State appeals from the suppression order pursuant to OCGA § 5-7-1 (a) (4).

After the vehicle Lewis was driving struck the rear of a school bus, a Georgia State Patrol officer investigating at the scene of the accident observed that Lewis had dilated pupils, appeared glassy-eyed, and exhibited a slow pattern of speech. Based on these observations, the record shows that the officer concluded he had reasonable grounds to believe that Lewis had been driving her vehicle in violation of OCGA § 40-6-391, placed Lewis under arrest, and read her the implied consent notice. OCGA §§ 40-5-55; 40-5-67.1; 40-6-392. Pursuant to the implied consent notice, Lewis consented to State-administered tests of her blood and urine for the purpose of determining the presence of alcohol or drugs. Thereafter, the officer transported Lewis to a local hospital, Barrow Medical Center, where blood was withdrawn from her and she gave a urine sample. It is undisputed that Lewis’ blood and urine tested positive for marijuana in tests performed by the State Crime Lab.

When the officer and Lewis arrived at Barrow Medical Center to obtain the blood and urine samples, the hospital required that Lewis and the officer sign a form entitled “Request For Alcohol Testing.” The portion of the form signed by Lewis stated that: “I, the undersigned, hereby request that (name of person drawing sample), an employee of the Barrow Medical Center, collect a blood sample from me for the purpose of alcohol testing. I understand fully that I am not required to submit this sample against my wishes, and I hereby authorize the Barrow Medical Center to mail the sample or give the sample to the officer to be transported to the State Crime Laboratory for determination of its alcohol content and further agree not to hold (name of person drawing sample) or any employee or agent of said hospital liable for such disclosure or any results thereof. I hereby certify that I have read and fully understand the above consent, and am aware that the results of this test may subsequently be used as legal evidence.” The portion of the form signed by the officer was subtitled “Statement of Officer” and stated that: “I, the undersigned officer, hereby state that Rachel Yvonne Lewis in my custody is being delivered to the Barrow Medical Center for a blood test in accordance with the Georgia Code. I have fully explained the Georgia Code to the offender.”

In entering the order suppressing evidence of any drug or substance other than alcohol discovered in the blood and urine tests, the trial court found that Lewis was required to sign the above hospital consent form which was also signed by the officer, and that the form referred only to testing for alcohol, not drugs. The trial court further found that, despite the implied consent notice given to Lewis, the hospital form caused her to reasonably believe that she was consenting only to a test of her blood and urine for alcohol. The trial court concluded that any consent given by Lewis to a blood and urine test for drugs was not free and voluntary and therefore such testing constituted an unreasonable search and seizure in violation of Lewis’ rights under the United States and Georgia Constitutions. The trial court also suppressed use of the blood and urine test results as evidence that Lewis was in possession of less than one ounce of marijuana on the basis that use- of the evidence for this purpose was beyond the scope of the consent Lewis gave pursuant to the implied consent notice.

1. As to the charges for driving a vehicle under the influence of marijuana (OCGA § 40-6-391 (a) (6)), driving a vehicle under the influence of drugs to the extent that she was a less safe driver (OCGA § 40-6-391 (a) (2)), and following too closely, the trial court erred by suppressing evidence that Lewis’ blood and urine tested positive for marijuana or drugs other than alcohol.

The trial court reasoned that Lewis did not give free and voluntary consent to testing for drugs, and that the test results should be suppressed, because the document which the hospital prepared and required Lewis and the officer to sign before taking the blood and urine samples led Lewis to believe that she was consenting to testing only for alcohol and not drugs. Whatever the form prepared by the hospital may have said or led Lewis to believe, it had no bearing on the State’s right to test Lewis’ blood and urine for alcohol or drugs pursuant to the consent she gave after receiving the required implied consent notice. OCGA §§ 40-5-55; 40-5-67.1 (b); 40-6-392; Odom v. State, 185 Ga. App. 496 (364 SE2d 626) (1988). As the operator of a motor vehicle under arrest for an offense arising out of acts alleged to have been committed in violation of OCGA § 40-6-391, and on reasonable grounds for the officer to believe that she was driving her vehicle in violation of § 40-6-391, Lewis was deemed under the implied consent provisions of OCGA § 40-5-55 to have given consent to tests of her blood, breath, urine, or other bodily substances “for the purpose of determining the presence of alcohol or any other drug,” subject to her right to refuse the tests. Allen v. State, 254 Ga. 433, 434 (330 SE2d 588) (1985); Fantasia v. State, 268 Ga. 512, 513 (491 SE2d 318) (1997). As long as the State complied with the statutory implied consent requirements, Lewis cannot complain that testing done by the State for the presence of alcohol and drugs violated her rights under the Georgia Constitution or the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures. State v. Johnston, 249 Ga. 413, 414, n. 1 (291 SE2d 543) (1982). Only action taken by the State inconsistent with implied consent requirements could have given Lewis a basis to complain that the testing constituted an unreasonable search and seizure by the State. Id. Nothing on the form prepared by the hospital, including the statement signed by the officer, could be construed as action taken by the State in violation of the statutory requirements of implied consent. Accordingly, the trial court erred by suppressing the test results.

2. The trial court correctly found that evidence showing Lewis’ blood and urine tested positive for marijuana cannot be used to prove the charge that she was in possession of less than one ounce of marijuana.

The implied consent law pursuant to which Lewis gave consent to the testing was contingent upon her arrest for an offense arising out of acts alleged to have been committed in violation of OCGA § 40-6-391 and reasonable grounds for the officer to believe that she was driving her vehicle in violation of § 40-6-391. OCGA § 40-5-55; Johnston, 249 Ga. at 414, n. 1. The implied consent notice given to Lewis states in part that: “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.” OCGA § 40-5-67.1 (b). Section 40-6-392, which sets forth mandatory requirements for the admission of tests obtained pursuant to implied consent, further provides in part that: “Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible.”

Decided July 1, 1998

Reconsideration denied July 13, 1998

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.

William D. Healan III, for appellee.

These provisions make clear that Lewis’ consent to the testing was given with the understanding that it was being done to determine if there was evidence that she was under the influence of alcohol or drugs for the purpose of proving that she drove her vehicle in violation of OCGA § 40-6-391. Consent given for one purpose does not authorize the State to use the test results for any purpose. Beasley v. State, 204 Ga. App. 214, 216-217 (419 SE2d 92) (1992). Since Lewis did not give free and voluntary consent for the State to test her blood and urine for the purpose of establishing evidence to support a criminal prosecution for possession of less than one ounce of marijuana, the trial court correctly suppressed use of the test results for this purpose. State v. Jewell, 228 Ga. App. 825 (492 SE2d 706) (1997); State v. Gerace, 210 Ga. App. 874 (437 SE2d 862) (1993).

Judgment affirmed in part and reversed in part.

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


text:
    A98A0788.
    GREMILLION v. THE STATE.
    (504 SE2d 265)
   Smith, Judge.

Following a bench trial, James Brent Gremillion was convicted of trafficking in cocaine, possession of psilocybin mushrooms, and possession of marijuana with intent to distribute. He appeals the order of conviction as well as the trial court’s denial of his motion to suppress. We find no error and affirm.

On October 7, 1996, officers from the Athens-Clarke County Drug Task Force executed a search warrant at Gremillion’s apartment. The officers discovered three plastic bags containing 82.3 grams of cocaine inside an overnight bag, a clothing bag containing 11 packages of marijuana totalling 441.9 grams or 15.5 ounces, and a plastic bag containing six grams of psilocybin mushrooms. The officers also discovered a set of scales with a white, powdery substance on it and a file cabinet containing $4,142.

1. During the hearing on Gremillion’s motion to suppress, Officer George Garrison, who submitted an affidavit to the magistrate in support of the warrant, acknowledged that the individual who provided him with information concerning contraband inside Gremillion’s residence had a criminal record, had been paid for information on two previous occasions, and had been granted leniency on criminal charges in the past in exchange for providing information. Relying in large part on Perkins v. State, 220 Ga. App. 524 (469 SE2d 796) (1996), Gremillion contends Garrison’s failure to provide this information to the magistrate denied the magistrate the “opportunity to make a fair assessment of the reliability, veracity and basis of knowledge of the confidential informer,” and that the evidence seized as a result of the execution of the warrant should have been suppressed.

It is true that an informant’s veracity and basis of knowledge are “major considerations” in the “common sense” analysis to be employed by the magistrate in determining whether a fair probability exists that contraband or evidence of a crime will be found in a particular place. Kessler v. State, 221 Ga. App. 368, 369-370 (471 SE2d 313) (1996). And while the “better practice” under Perkins would have been for Officer Garrison to inform the magistrate of the informant’s criminal history, prior payments, and leniency in past cases, this failure is not dispositive on the issue of the informant’s reliability. See generally Kessler at 370. As discussed in Kessler, three types of information may be provided to enable a magistrate to determine whether an informant is reliable: “the type of information previously supplied by the informant, the use to which the information was put and the elapsed time since the information was furnished.” (Citation and punctuation omitted.) Id.

Here, as in Kessler, information concerning each of these factors was presented to the magistrate. Garrison stated in the affidavit that the informant had provided information in the five years in which he had known the informant “on at least four (4) occasions that led to the issuance of search warrants, the recovery of controlled substances, and the arrest of five people” on drug charges. He also stated that other information provided by the informant had proven to be accurate. In addition, the affidavit showed that the information given by the informant for the issuance of the warrant for Gremillion’s apartment had been supplied over the previous two days. Compare Hockman v. State, 226 Ga. App. 521, 522 (2) (487 SE2d 102) (1997) (physical precedent only) in which the affidavit contained only “conclusory allegations” failing to establish the informant’s reliability.

Moreover, the record contains no evidence that the affidavit contained deliberate falsehoods, that Garrison made it with reckless disregard for the truth, or that Garrison “consciously omitted material information which, if it had been included in the affidavit, would have been indicative of the absence of probable cause.” Kessler, supra at 371. Compare Peters v. State, 213 Ga. App. 488 (445 SE2d 290) (1994); Redding v. State, 192 Ga. App. 87 (383 SE2d 640) (1989). Finally, even if the omitted criminal history, past “deals,” and past payments had been included, the affidavit still contained sufficient evidence to support the magistrate’s conclusion that the informant was reliable and that probable cause existed. Kessler, supra at 371. “Taking a common sense approach to the evaluation of the affidavit, we find that it was sufficient to demonstrate the informant’s reliability.” Id. at 370-371. The trial court accordingly did not err in denying Gremillion’s motion to suppress.

2. Gremillion argues as well that the trial court improperly limited his cross-examination of Garrison by refusing to allow questions addressing the following issues: the nature of the informant’s criminal record, including the number of convictions; the informant’s motivation for supplying information about Gremillion; past “deals” between the State and the informant; whether the informant was currently on probation or parole; whether the informant had been involved in any drug transaction with Gremillion; and the circumstances under which the confidential informant observed the contraband. He maintains that these issues reflected on the basis of knowledge and veracity of the informant.

Although a defendant is entitled to a thorough and sifting cross-examination of a witness, “the extent of cross-examination can be curtailed if the inquiry is not relevant or material, and such resfrietion lies within the discretion of the trial court which will not be disturbed on appeal unless manifestly abused.” (Citations and punctuation omitted.) Duckworth v. State, 223 Ga. App. 250, 253 (1) (477 SE2d 336) (1996).

The trial court limited Gremillion’s cross-examination concerning the issues listed above in large part because Garrison’s answers to the questions could reveal the identity of the informant. But the court did not completely restrict cross-examination concerning issues relating to the informant’s reliability. The court permitted questions concerning whether current criminal cases were pending against the informant, as well as questions concerning whether the informant had been paid for information in the past or had been promised leniency in any pending criminal case.

In addition, the court allowed Gremillion to explore the issue of the informant’s motivation through questions such as whether the informant showed bias, hatred, or jealousy toward Gremillion or whether the informant provided information because of the informant’s belief that “what [Gremillion] was doing was wrong.” In an obviously conscientious attempt to allow Gremillion to conduct a thorough investigation but still protect the informant’s identity, the court even conducted an off-the-record meeting with Garrison so that Garrison could fully explain his belief concerning the informant’s motivation. As a result of that meeting, the court permitted Garrison to state the informant’s motivation insofar as statements concerning this motivation did not reveal the informant’s identity. Garrison stated that the informant’s motivation arose “because we had treated this person right in the past that it felt obligated to come to us.” The trial court did not permit Gremillion to question Garrison concerning any drug transactions involving the informant or the circumstances under which the informant observed the contraband, but given the trial court’s legitimate concern with protecting the informant’s identity in addition to the court’s careful attention to Gremillion’s desire to explore issues relating to the informant’s veracity and reliability, we cannot say that the court “manifestly abused” its discretion in limiting Gremillion’s cross-examination of Garrison.

3. Gremillion also contends the evidence was insufficient to convict him of possession of marijuana with intent to distribute because no testimony was elicited from anyone that the amount of marijuana seized was consistent with distribution.

Mere possession of contraband alone will not support a conviction for possession with intent to distribute. See, e.g., Parris v. State, 226 Ga. App. 854, 856 (487 SE2d 690) (1997). But in the absence of expert testimony concerning the amount of contraband associated with distribution, intent to sell may be proven through additional evidence including “scales, drug paraphernalia, large amounts of cash, [and] division of drugs into individual packages.” Id. Here, officers seized scales, cash in the amount of $4,142, and marijuana individually packaged in 11 plastic bags. Construing this evidence to uphold the verdict, as we must, see Sams v. State, 197 Ga. App. 201, 202 (1) (397 SE2d 751) (1990), we conclude that the State presented sufficient evidence from which the trial court could conclude that Gremillion possessed the contraband with intent to distribute. See generally Wright v. State, 154 Ga. App. 400, 401-402 (268 SE2d 378) (1980).

Decided July 13, 1998

James D. Crowe, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       The evidence is not disputed that at the time the informant approached Garrison, no criminal charges were pending against the informant, and no promises had been made to the informant regarding any criminal charges. In addition, although the informant had been paid in the past for information, the informant was not paid with regard to this case.

       We note that the appellant in Kessler enumerated as error the trial court’s refusal to grant his motion to reveal the informant’s identity, an issue slightly different from that enumerated here. But as here, it was necessary to reach the issue of the affiant’s failure to reveal the fact that the informant was a convicted felon.


author: POPE, Presiding Judge.

text:
    A98A1196.
    McCALLA et al. v. STUCKEY.
    (504 SE2d 269)
   POPE, Presiding Judge.

The sole issue in this appeal is whether Count 1 of plaintiff Stuckey’s complaint was governed by OCGA § 9-3-23, which provides a twenty-year period of limitations for written contracts under seal, or by OCGA § 9-3-24, which provides a six-year limitation period for ordinary contracts which are not under seal. The superior court determined that the 20-year period applied and denied defendants’ motion to dismiss. We granted defendants’ interlocutory application to review the superior court’s ruling and, for the following reasons, we reverse.

The instant dispute centers on an escrow agreement, which was executed as part of a real estate transaction in 1985, in which plaintiff Charles W. Stuckey agreed to purchase an interest in a condominium unit. The escrow agreement designated the escrow agent for the closing as “McCalla, Raymer, Padrick, Cobb & Nichols (‘McCalla’) as agent for Ticor Title Insurance Company of California.” Philip E. Johns, a partner at the McCalla law firm, signed the agreement as its authorized representative, which in turn, was the agent for Ticor. The agreement was also signed by the borrowers (including Stuckey) and was signed again by Philip E. Johns, as attorney for the lender. In the body of the escrow agreement, immediately before the signature lines is the statement: “IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals as of the day and year first above written.” Thereafter, the signatures of the borrowers and sellers are followed by the word “seal.” Neither the escrow agent nor the lender’s signature (both of which were Philip Johns’s signature) is accompanied by any such “seal” designation.

The closing on the property took place on December 31, 1985. More than 11 years later, on January 16, 1997, Stuckey filed the instant complaint against McCalla, Raymer, Padrick, Cobb & Nichols, individually and as agent for Ticor Title Insurance Company of California, alleging in Count 1 that a condition of the escrow agreement had been breached; in Count 2 Stuckey alleged a breach of fiduciary duty. After answering, McCalla and Ticor Title moved to dismiss the action on the grounds that the applicable statute of limitation had expired before the suit was filed.

The superior court granted the motion on Count 2; denied the motion as to Count 1; and this appeal followed. In concluding that the 20-year period was applicable, the superior court relied on Kytle v. Kytle, 128 Ga. 387, 392 (3) (57 SE 748) (1907), and City of Lawrenceville v. Yancey, 163 Ga. App. 462 (294 SE2d 691) (1982), and stated “[t]he courts have not allowed non-signatory parties to avoid the twenty-year statute of limitations where the signatory party is bound by seal and the non-signatory party accepts the instrument.”

Generally, actions on written contracts are governed by the six-year period of limitations of OCGA § 9-3-24. In contrast, contracts under seal are governed by the 20-year period of limitations of OCGA § 9-3-23. The law is clear that to constitute a sealed instrument, “there must be both a recital in the body of the instrument of an intention to use a seal and the affixing of the seal or scroll after the signature.” Chastain v. L. Moss Music Co., 83 Ga. App. 570 (64 SE2d 205) (1951). Compare Ga. Receivables v. Maddox, 216 Ga. App. 164 (1) (454 SE2d 541) (1995). It is also established that a contract may be under seal as to some parties and not as to others. Chastain, 83 Ga. App. at 570-571; Lanier v. Berry, 41 Ga. App. 34 (151 SE 821) (1929).

In ruling on the motion to dismiss, the superior court concluded that because the escrow agreement contained the required recital that it was given under seal, by signing the document McCalla accepted the legal consequences of a sealed document. The superior court’s reliance on Kytle v. Kytle, 128 Ga. 387, and City of Lawrenceville v. Yancey, 163 Ga. App. 462, was misplaced. In both of those cases the court concluded that the deed under which the grantee claimed was under seal and that although the grantee was not a signatory to the deed, the character and form of the sealed instrument was binding. In the instant case, both parties signed the agreement and the rationale of Kytle v. Kytle and City of Lawrenceville v. Yancey is inapposite. Similarly, we also reject Stuckey’s argument that Pitman v. Pitman, 215 Ga. 585 (111 SE2d 721) (1959), is relevant.

Decided July 13, 1998.

Morris, Manning & Martin, Lewis E. Hassett, Tacita A. Scott, for appellants.

Page & Bacek, Edward J. Dovin, Michel V. Hurley, for appellee.

Accordingly, because the signature for McCalla did not include a seal or scroll, the ordinary six-year limitation period applied to Stuckey’s claims and the court erred in denying the motion to dismiss.

Judgment reversed.

Beasley and Ruffin, JJ, concur.

       McCalla, Raymer, Padrick, Cobb, Nichols & Clark is the successor entity to McCalla, Raymer, Padrick, Cobb & Nichols.

       Stuckey responded to the motion to dismiss and filed various documents in support of his position, including a “Joint Waiver of Statute of Limitations,” signed by both Stuckey and agents of McCalla, which document purported to toll the period of limitations from December 29, 1988 until February 1, 1989. The record contains nine extensions of this tolling agreement, which dated from February 1989 until December 1989. The parties do not raise any arguments regarding these documents here.


author: Ruffin, Judge.

text:
    A98A0410.
    J. C. PENNEY COMPANY, INC. v. RICHMOND COUNTY BOARD OF TAX ASSESSORS.
    (504 SE2d 201)
   Ruffin, Judge.

In this tax matter concerning valuation of tangible personal property, J. C. Penney Company, Inc. (“J. C. Penney”) appeals from the superior court’s determination of the fair market value of J. C. Penney’s inventory at its store in Augusta, Georgia, for the 1996 tax year. For reasons which follow, we reverse the superior court’s decision and remand the case for further consideration.

The evidence shows that on January 3, 1996, the Richmond County Board of Tax Assessors (“the Board”) sent J. C. Penney notice that, for taxation purposes, the fair market value of J. C. Penney’s merchandise at the store was $3,194,296. J. C. Penney contested this figure, arguing that the acquisition cost of the inventory was $2,640,268 and that the fair market value was $1,397,000. In support of its claim, J. C. Penney submitted an appraisal report to the Board. J. C. Penney’s appeal was certified to the Richmond County Board of Equalization, which affirmed the Board’s valuation.

J. C. Penney appealed to the superior court, which conducted a non-jury trial to review the evidence de novo. See OCGA § 48-5-311 (g) (3). At trial, the Board admitted that the $3,194,296 figure was incorrect and instead argued that the fair market value was $2,640,268, the acquisition cost of the inventory. J. C. Penney supported its claim that the fair market value was $1,397,000 through the testimony of an appraiser and a J. C. Penney employee who worked in the retailer’s tax department.

Under J. C. Penney’s proposed valuation method, “seller” was defined for purposes of determining fair market value as an entity or business that was willing to purchase all of J. C. Penney’s goods and then proceed to take J. C. Penney’s place in the business arena. J. C. Penney argued that in determining fair market value the tax assessors should have started with the cost of the inventory and then adjusted for all markdowns that occurred on January 1, 1996, when the merchandise was appraised. According to J. C. Penney, these markdowns occurred because certain merchandise had not been popular with consumers and thus was obsolete or less valuable. J. C. Penney argued that the other factor the tax assessors needed to consider was J. C. Penney’s name brands. J. C. Penney maintained that if another business entity purchased all of J. C. Penney’s goods at one time and took over J. C. Penney’s operations, the new entity would not have paid as much for the lines of clothes over which J. C. Penney had sole control. According to J. C. Penney, the labels on this merchandise had to be removed before the new business entity would have been able to sell it. To summarize J. C. Penney’s calculations, the retailer started with the cost of the inventory, $2,640,268, subtracted the economic obsolescence of the goods (the markdowns on merchandise not yet sold), and then subtracted the label merchandise to arrive at the figure of $1,397,000.

In disagreeing with the Board’s argument that the acquisition cost equaled the fair market value of the property, J. C. Penney’s accountant explained that “[tjhere are three terms: there’s price which is what things are marked at or what somebody may ask; there is cost which is what somebody may pay for something; and there is value which is what it is worth.” The accountant further stated that generally “cost and fair market value are alike [only] by coincidence.” He then presented evidence showing that acquisition cost and fair market value in this instance were not alike.

The Board presented no witnesses or evidence at trial. Nevertheless, the superior court agreed with the Board’s valuation and in a cursory order found the fair market value to be $2,640,000. J. C. Penney appealed to this Court.

“Just and fair valuation of property is a question to be determined by the factfinder, here, the trial court. [Cit.] On appellate review, the trial court’s determination must be affirmed unless it is clearly erroneous. OCGA § 9-11-52 (a).” Dougherty County Bd. of Equalization v. Casto Dev. Co., 228 Ga. App. 293, 295 (491 SE2d 483) (1997). Moreover, “[o]n appeal, this court considers the sufficiency of the evidence and not its weight. [Cit.]” Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834, 835 (3) (350 SE2d 790) (1986).

For ad valorem tax purposes “[a]ll property shall be returned for taxation at its fair market value. . . .” OCGA § 48-5-6. Fair market value of property is “the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale.” OCGA § 48-5-2 (3). “It is the duty of the board of tax assessors to ‘see that all taxable property within the county is assessed and returned at its fair market value and that fair market values as between individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only his proportionate share of taxes.’ [Cit.]” (Emphasis omitted.) Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 728 (2) (279 SE2d 223) (1981). See also Colvard v. Ridley, 218 Ga. 490 (128 SE2d 732) (1962).

We recently addressed the issue of determining fair market value of inventory in Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94, 103 (3) (491 SE2d 173) (1997). In Eckerd, the appellant argued that the tax assessors had improperly assessed its inventory at cost because cost and fair market value are exclusive of one another. We disagreed, holding that “[w]hile we agree that property must be assessed at fair market value, OCGA § 48-5-6, ‘cost’ is not a concept foreign to such valuation. What the taxpayer was willing to pay for the personalty, its cost to him, is one of the factors from which fair market value may be determined, if not the primary factor, because such figure is fixed, while other factors may deviate upward or downward from such figure based upon the fair market.” Id. at 103. We further stated that “[f]or ad valorem tax purposes, fair market value is not the retail value to the taxpayer, but the current wholesale value adjusted for the fair market; thus, the taxpayer’s cost may be adjusted upward, downward, or remain the same to reflect the ‘wholesale market’ as it determines the fair market value of the tangible personalty in the taxpayer’s possession at that economic moment in time.” Id. at 103-104. Finally, we determined that it is possible in a stagnant economy that cost may equal fair market value. Id.

In this case, the burden of proof was on J. C. Penney as the party who initiated the appeal to the superior court. See Hawkins, supra. However, the Board was not entitled at trial to “any prima facie presumption regarding the correctness of its evidence of valuation. . . .” (Punctuation omitted.) Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 882 (1) (463 SE2d 703) (1995). See also Hodsdon v. Duckett, 135 Ga. App. 922, 923 (219 SE2d 634) (1975).

J. C. Penney presented evidence through an extensive appraisal report and the testimony of two experts to explain why the acquisition cost of the inventory needed to be adjusted downward to arrive at the inventory’s fair market value. J. C. Penney’s approach was consistent with the formula for determining fair market value espoused in Eckerd. This evidence was uncontroverted, as the Board put forward no evidence or expert testimony. Accordingly, the only evidence on which, the trial court could have based its determination of value was J. C. Penney’s evidence that the fair market value of the inventory was less than its acquisition cost. In light of J. C. Penney’s unrefuted testimony and the fact that the Board’s valuation was not to be presumed correct, there was insufficient evidence upon which the trial court could base its decision that the fair market value of the inventory equaled the inventory’s acquisition costs. See Hodsdon, supra (jury verdict reversed as values upon which assessments were based did not fall into range of taxpayers’ value testimony and tax assessors offered no evidence); Evans v. Bd. of Tax Assessors of Henry County, 168 Ga. App. 792 (310 SE2d 562) (1983) (physical precedent only) (there was no basis in the transcript to support trial court’s valuation of the property which did not comport with only evidence of valuation presented by taxpayers’ experts). Compare Hirsch, supra (tax assessors presented testimony of expert appraiser, such that the superior court was not left to speculate based upon guesswork and unsupported conclusions as to the fair market value of property); Hawkins, supra (evidence presented by tax assessors was sufficient to authorize jury verdict as to fair market value of property); Casto Dev. Co., supra (expert testimony presented on behalf of tax assessors provided the trial court with an adequate basis for determining value and trial court was not left to engage in speculation, guesswork or unsupported conclusions). The trial court’s determination of J. C. Penney’s inventory’s value cannot be affirmed in this instance as the trial court, in making its determination, ignored the only evidence put forward at trial and based its decision on unsupported conclusions and guesswork. Hodsdon, supra; Evans, supra. Accordingly, the judgment of the trial court is reversed, and the case is remanded for a new valuation based on the valuation testimony presented at trial. Id.

Judgment reversed and remanded.

Pope, P. J., and Beasley, J., concur.

Decided June 5, 1998

Reconsideration denied July 14, 1998

Smith, Gambrell & Russell, Edward K. Smith, William B. Wood, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Harry D. Revell, for appellee.