text:
    A99A1053.
    PLAZA PROPERTIES, LTD. et al. v. PRIME BUSINESS INVESTMENTS, INC.
    (524 SE2d 306)
   Ruffin, Judge.

Prime Business Investments, Inc. sued Plaza Properties, Ltd. and its sole shareholder, Wayne Weeks, for breach of contract relating to a commission on the sale of a coin laundry business. Following a bench trial, the trial court entered judgment in favor of Prime. The defendants appeal, arguing that they were denied their right to a jury trial and that the evidence did not support the judgment. For the reasons discussed below, we affirm the trial court’s judgment with respect to Weeks but reverse with respect to Plaza Properties.

1. When defendants filed their answer on January 27,1997, they did not include a demand for trial by jury. On August 1, 1997, the trial court notified the parties that the case was scheduled for a non-jury trial on September 10, 1997. On September 3, Plaza Properties filed a written demand for a jury trial. Following a hearing on September 9, which was apparently not transcribed, the trial court entered an order rejecting the jury demand, stating that it did not comply with the court’s standing order requiring jury demands to be filed ten days before trial. The court then continued the trial until the next non-jury calendar because defendants’ counsel had a conflict.

The case was then scheduled for trial on November 7, 1997. Before the start of trial, the court asked counsel if there were “[a]ny other matters we need to take up before opening statements.” Defendants’ counsel did not raise any objection to proceeding without a jury and did not object to the trial court rendering judgment on the merits.

On appeal, defendants contend that the trial court erred in denying them the right to a jury trial. Pretermitting whether the trial court’s September 9 order was error, however, defendants waived their right to a jury trial by participating in the bench trial without protest. Our Supreme Court has held that “[a] demand for a jury trial is impliedly waived where the party making the demand participates in a bench trial without objection.” We have also held that

[a] party to litigation cannot voluntarily participate in a trial before a judge without a jury, proceed without reservation to have the trial court hear the case without the intervention of a jury, not object to the trial court’s rendering judgment on the merits, and, then, after an unfavorable judgment is rendered, set aside the judgment because no jury trial was had.

Defendants contend that, because the trial court had already denied their jury demand in its September 9 order, their participation in the bench trial did not constitute a waiver. This contention is without merit. The bench trial did not occur until two months after the trial court’s order, and at no time in the interim did the defendants indicate that they still desired a jury trial. This two-month silence, combined with a failure to raise any objection during the course of the bench trial or prior to the entry of judgment, even when questioned by the trial court, shows that the defendants acquiesced in proceeding to trial without a jury. As we previously held,

no matter how erroneous the ruling might have been . . . , a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. Failure to object to the procedure amounts to waiver.

Because defendants participated in the bench trial without objection, they cannot, after having received an adverse decision, now complain that they were denied the right to a jury trial.

2. Defendants contend that the trial court’s judgment is not supported by the evidence in several respects. In considering this enumeration, we construe the evidence in the light most favorable to support the trial court’s judgment. Moreover, in a bench trial, the trial court is the trier of fact, and its findings will be upheld on appeal if there is any evidence to support them.

Viewed in the light most favorable to the judgment, the evidence showed as follows. In February 1995, Prime entered into a listing agreement with Peter Antoniades, the owner of Plaza Coin Laundry, in which Prime agreed to attempt to procure a purchaser for the laundry. Prime then began advertising and promoting the sale of the business. In response to an advertisement, Weeks contacted Prime to investigate the possibility of purchasing the laundry. On March 7, 1995, Weeks met with Mark McCurry, a sales agent with Prime. In return for Prime providing certain information regarding the laundry, including its name, location, asking price, and monthly rent, Weeks signed a contract agreeing to negotiate only through Prime for the purchase of the laundry. Weeks agreed that, if he violated the terms of the contract, he would be liable to Prime for any lost commission. Weeks also acknowledged that Prime was the first entity to provide him with the information about the laundry. After Weeks signed the contract, McCurry provided him with additional financial information about the laundry, including its sales and profitability.

After meeting with McCurry, Weeks sent him a letter stating that he was interested in the laundry and requesting further financial information about the business. McCurry testified that he subsequently tried to telephone Weeks, but that Weeks would not return his calls. This indicated to McCurry that Weeks was no longer interested in the purchase.

On March 30, 1995, without Prime’s involvement, Weeks and Antoniades entered into a purchase and sale agreement for the laundry, with a purchase price of $165,000. The agreement, which was prepared by Weeks, stated that Robert Bader was the only agent authorized to sell the business, and provided that Bader would receive a $5,000 commission, less than one-third of what Prime would have been entitled to under its listing agreement with Antoniades. Weeks subsequently formed a corporation, Plaza Properties, of which he is the sole shareholder. The sale of the laundry was consummated on April 14, 1995, with Plaza Properties as the purchaser. Weeks executed the closing documents as president of Plaza Properties.

(a) Weeks contends that he is not liable to Prime for lost commission because Prime was entitled to a commission from Antoniades only if it was the procuring cause of the sale. However, the question is not whether Prime was in fact entitled to a commission from Antoniades, but whether it would have been entitled to a commission if Weeks had not breached his contract with Prime. Under that contract, Weeks agreed to negotiate for the purchase of the property only through Prime. Had Weeks in fact done so, Prime would have been entitled to a commission from Antoniades as the procuring cause of the sale. Accordingly, there was evidence to support the trial court’s finding that Weeks was liable for breach of contract.

(b) Weeks also contends that there was no consideration for his contract with Prime. This contention is without merit, as the contract clearly provides that the consideration consisted of Prime’s providing certain information to Weeks regarding the business, including its name, location, and asking price.

(c) Weeks argues that there was no evidence to support the trial court’s award of attorney fees under OCGA § 13-6-11. This contention also lacks merit. Under OCGA § 13-6-11, attorney fees may be awarded where there is bad faith “in defendant’s carrying out the provisions of the contract.” In this case, there was sufficient evidence of Weeks’ bad faith to justify an award of attorney fees. In exchange for the name and location of the business, as well as financial information regarding the business, Weeks agreed to negotiate only through Prime for the purchase of the business. Weeks then proceeded to enter into separate negotiations with the owner, without disclosing his agreement with Prime, and arranged for payment of a lower brokerage commission than would have been payable to Prime. Although Weeks claims that he already knew about the laundry before he met with Prime, this is contradicted by his express representation in the contract. Weeks refused to return telephone calls from Prime and failed to inform Prime that he had in fact purchased the business through a different broker. In our opinion, the evidence was sufficient for the trial court to find that Weeks demonstrated bad faith in the performance of his contract with Prime.

(d) Finally, defendants argue that, even if Weeks is liable on the contract, there was no evidence to support the trial court’s finding that Plaza Properties was liable on the contract. Prime does not respond to this argument in its brief.

It is a fundamental principle of law that “each corporation is a separate entity, distinct and apart from its stockholders.” It is also fundamental that “[a] person who is not a party to a contract (i.e., is not named in the contract and has not executed it) is not bound by its terms.” The contract in this case was executed by Weeks in his personal capacity only; Plaza Properties was not a party to the contract and assumed no obligations thereunder. Under the contract, the parties simply agreed that if Weeks did not negotiate through Prime for the purchase of the laundry, then he would be personally responsible for any lost commission. They did not agree that any entity taking title to the business would also be liable. Thus, the mere fact that Plaza Properties was formed to take title to the business is not sufficient to render it liable on a contract it did not execute.

Decided November 2, 1999

Joe A. Weeks, for appellants.

We need not consider whether a “piercing the corporate veil” theory may be applied in reverse — i.e., to render a corporation liable for its sole shareholder’s individual obligations — because such a theory was not raised at trial nor ruled on by the trial court. Even if such a theory were applicable and properly asserted, “[flor the issue to be submitted to a jury there must be evidence that the corporate arrangement was a sham, used to defeat justice, to perpetrate fraud or to evade statutory, contractual or tort responsibility.” It was not the formation of the corporation that resulted in a breach of Weeks’ agreement with Prime, but his failure to negotiate exclusively through Prime for the purchase. There was no evidence that Weeks abused the corporate form or rendered himself unable to satisfy Prime’s claim by fraudulently transferring personal assets to the corporation., Therefore, even if the issue were properly raised, there was no evidence to support piercing of the corporate veil so as to render the corporation liable on Weeks’ personal obligations.

We note that the only basis for liability asserted at trial was the contract between Weeks and Prime. Because Plaza Properties was not a party to that contract, the trial court erred in entering judgment against the corporation.

Judgment affirmed in part and reversed in part.

Andrews, P. J, concurs. McMurray, P. J., concurs in Divisions 1 and 2 (a), (b) and (d) and in the judgment.

Tobin & Hoffspiegel, Thomas W Tobin, Valerie G. Tobin, for appellee.

       The court apparently construed Plaza Properties’jury demand as a demand from both defendants.

        Matthews v. Matthews, 268 Ga. 863, 864 (2) (494 SE2d 325) (1998).

       (Punctuation omitted.) Goss v. Bayer, 184 Ga. App. 730, 731 (2) (362 SE2d 768) (1987).

       (Punctuation omitted.) Robinson v. Moonraker Assoc., Ltd., 205 Ga. App. 597, 598 (423 SE2d 44) (1992).

        Mills v. Barton, 205 Ga. App. 413, 414 (3) (422 SE2d 269) (1992).

        CRS Sirrine v. Dravo Corp., 219 Ga. App. 301, 302 (1) (464 SE2d 897) (1995).

       See generally O’Brien’s Irish Pub v. Gerlew Holdings, 175 Ga. App. 162, 164 (2) (332 SE2d 920) (1985) (proof of procuring cause not required where exclusive contract exists).

       See Pepsi Cola Bottling Co. &c. v. First Nat. Bank &c., 248 Ga. 114, 116 (2) (281 SE2d 579) (1981) (consideration may consist of “[a]ny benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon, him to whom it is made”).

        Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (1) (c) (501 SE2d 30) (1998).

       Weeks also states that Prime was not entitled to prejudgment interest, but does not support this assertion with any argument whatsoever. Accordingly, we do not consider this issue. See In the Interest of B. J. G., 234 Ga. App. 285, 287, n. 1 (506 SE2d 449) (1998).

        Clark v. Cauthen, 239 Ga. App. 226, 227 (2) (520 SE2d 477) (1999).

        Martin v. Pierce, 140 Ga. App. 897, 899 (1) (232 SE2d 170) (1977).

        See Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 775 (3) (503 SE2d 649) (1998) (judgment against individual improper where “piercjing] the corporate veil” theory not asserted); compare Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 844 (2) (a) (392 SE2d 37) (1990) (“ ‘[W]hen litigated, the issue of “piercing the corporate veil” is a jury question’ ”) (emphasis supplied).

       Id.

       The complaint is somewhat ambiguous and does not set forth specific counts, but the only theory advanced at trial was breach of contract.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A1487.
    DIXON v. THE STATE.
    (524 SE2d 734)
   Pope, Presiding Judge.

Anderson Dixon appeals his conviction of two counts of burglary and one count of attempting to elude an officer on the grounds that he was unfairly prejudiced by improper evidence that he had pled guilty to an earlier burglary. He asserts that in his prior plea he did not admit guilt because he pled under North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970) which allowed him to maintain his innocence. We hold that because an Alford plea requires a court determination that there is a factual basis for the plea, and because in Georgia an Alford plea is not a plea of nolo contendere, an Alford plea may be used as evidence of a similar act.

In the case on trial, Shirley McLendon saw a man park a small white car at her apartment complex, go inside one of the buildings, carry a video cassette recorder out, and put it in his car. A neighbor arrived, and McLendon called the police while the neighbor watched as the man came out again, put a television in his car, and started to leave. McLendon related this to the police as it was happening. The neighbor saw the police arrive just as Dixon was attempting to leave, and the police chased and caught Dixon whom they identified at trial. They found items in Dixon’s car that were identified as the stolen items. Pry marks on the victims’ apartment doors matched the tire tool found in Dixon’s car.

• 1. Dixon contends there were several errors related to the introduction of an earlier burglary plea.

In June 1988, Dixon pled guilty to four counts of burglary. During the trial in this case and outside the presence of the jury, the court held a hearing to determine whether evidence of one plea should be admitted as a similar transaction. The State offered the evidence to show Dixon’s “bent of mind and course of conduct and his intent in this case.” Arthur Praeger testified at the hearing that in 1988 someone kicked in the door to his apartment and took several televisions and a camera. The parties agreed that Dixon was arrested later with a pawn ticket which led the police to Praeger’s television. The State also offered a certified copy of Dixon’s 1988 guilty plea for that burglary. The court reserved ruling on the evidence until it was tendered during trial.

The court then instructed the jury that the evidence they were about to hear could be considered only “for the limited purpose of showing, if it does, the identity of the perpetrator, the state of mind[,] that is, the knowledge or intent of the defendant in crimes charged in the case . . . now on trial.” Praeger repeated his story to the jury, but when the State attempted to introduce Dixon’s 1988 plea, Dixon objected. The court denied the objection and repeated the similar transaction jury charge at the end of the trial.

(a) Alford held that “[a]n individual accused [of] a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” 400 U. S. at 37. Thus, Dixon argues, as with a plea of nolo contendere, the plea itself is inadmissible in that it is insufficient to establish one of the requirements of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), that the defendant committed the earlier crime.

True, in Georgia, a conviction based on a plea of nolo contendere cannot be used “as an admission of guilt or otherwise or for any purpose.” OCGA § 17-7-95 (c). This prohibits use of a nolo plea as a similar act. Corbitt v. State, 190 Ga. App. 509 (1) (379 SE2d 535) (1989). And there are certainly similarities between a nolo contendere plea and an Alford plea. As stated in Alford:

The fact that his plea was denominated a plea of guilty rather than a plea of nolo contendere is of no constitutional significance with respect to the issue now before us[, i.e., whether the Constitution allows a sentence to follow an Alford plea]. . . .Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act[, a nolo contendere plea,] and a plea containing a protestation of innocence [, an Alford plea]. . . .”

Alford, 400 U. S. at 37.

But there is a critical procedural distinction that resolves the issue before us. Unlike a nolo plea, the court accepting an Alford plea must determine whether there is a factual basis for the plea. Alford, 400 U. S. at 38, n. 10; Crowe v. State, 265 Ga. 582, 586 (4) (458 SE2d 799) (1995); Brower v. State, 230 Ga. App. 125, 126 (1) (495 SE2d 600) (1998). A nolo contendere plea only requires consent and approval of the judge, and the judge must consider “the views of the parties and the interest of the public in the effective administration of justice.” OCGA § 17-7-95; Uniform Superior Court Rule 33.1 (B); see also Alford, 400 U. S. at 35, n. 8; compare Rule 33.9 (guilty plea requires determination of factual basis); but see Pooler v. Taylor, 173 Ga. App. 859, 862 (2) (a) (328 SE2d 749) (1985) (in dicta and without citation of authority, the court stated that a nolo contendere plea includes a finding of a factual basis).

Further, an Alford plea is a guilty plea, whereas a nolo plea does not conclusively establish a defendant’s guilt. See Alford, 400 U. S. at 37; Thompson v. State, 237 Ga. App. 466, 468 (2) (514 SE2d 870) (1999) (physical precedent). By definition, a nolo plea cannot be used against the defendant as an admission of guilt. OCGA § 17-7-95 (c). And that Code section on its face applies only to nolo pleas. We find nothing to prevent use of an Alford plea as evidence of a prior act if all other requirements of Williams v. State are met. See also Hudson v. State, 271 Ga. 477 (521 SE2d 810) (1999) (certified copy of prior conviction alone is not sufficient evidence of nexus between independent crime and offense charged necessary for admission of evidence of independent crime).

Here, Dixon’s Alford guilty plea represents a finding by the trial court that there was a factual basis for the plea. In addition to the indictment and plea, the State introduced Praeger’s testimony and the plea form on which Dixon admitted that he was in fact guilty of the crime. It was also agreed that Dixon was found with a pawn ticket for Praeger’s television. We agree with the trial court’s finding that a preponderance of the evidence shows that Dixon in fact committed the earlier burglary, which satisfies that requirement of Williams v. State. See Freeman v. State, 268 Ga. 185, 188 (4) (486 SE2d 348) (1997) (standard for admission of similar crimes evidence is preponderance of the evidence).

(b) Dixon claims the court failed to tell the jury the State’s specific purpose for introducing the prior burglary. The State was trying to show Dixon’s criminal intent to commit the current crimes. The court twice instructed the jury that the evidence was being introduced for the limited purpose of showing either identity of the perpetrator or Dixon’s intent. But Dixon did not request an instruction limiting the jury’s consideration of the evidence to the purpose for which the State admitted it, and therefore this objection is waived. Murphy v. State, 270 Ga. 72, 75 (2) (d) (508 SE2d 399) (1998). Further, Dixon did not object to the instructions as given, and there is nothing for us to review.

(c) Dixon contends the court failed to comply with all the requirements of Williams v. State by failing to make the required findings, including a finding of relevance, before admitting the evidence. Dixon’s failure to object on these specific grounds at trial precludes our review. Murphy, 270 Ga. at 73 (2) (a); Riddle v. State, 208 Ga. App. 8, 10 (1) (b) (430 SE2d 153) (1993).

(d) Dixon’s argument that he received insufficient notice of the State’s intent to introduce the Praeger burglary plea is waived because Dixon did not object on this ground at trial. Stephenson v. State, 216 Ga. App. 147 (2) (453 SE2d 144) (1995); Annison v. State, 206 Ga. App. 861 (2) (427 SE2d 5) (1992).

Decided November 2, 1999.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Kevin N. Levitas, Assistant District Attorneys, for appellee.

(e) Based on the facts presented at trial, we also find it highly probable that evidence of the Praeger burglary did not contribute to the judgment of conviction, and therefore any error would have been harmless. White v. State, 269 Ga. 74, 75 (2) (495 SE2d 278) (1998); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

2. Dixon also contends his trial counsel was ineffective, primarily in handling the similar transaction evidence. Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a defendant is required to show both that counsel’s performance was deficient and that the deficiency prejudiced the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). Because any possible error regarding the similar transaction was harmless, these enumerations are without merit. Setser v. State, 233 Ga. App. 822, 825 (2) (505 SE2d 798) (1998).

Finally, Dixon claims that his counsel failed to tell him that a list of evidence in aggravation was filed at or immediately before trial. Dixon’s mere assertion that he was prejudiced by this alleged failure is not supported; therefore, this enumeration is without merit. “There must be more than a mere claim of prejudice; it must be shown, and this the accused did not do.” (Citation omitted.) Powell v. State, 143 Ga. App. 684, 686 (1) (239 SE2d 560) (1977).

Judgment affirmed.

Smith and Eldridge, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A98A2219.
    BELLAMY et al. v. SUNFLOWER PROPERTIES, INC. et al.
    (523 SE2d 659)
   McMurray, Presiding Judge.

In 1991, appellants-plaintiffs Kenneth Bellamy and Ivory Bellamy conveyed title to certain unimproved land in Fayette County to appellee-defendant Sunflower Properties, Inc. (“Sunflower”). Sunflower, in turn, used the land as collateral for a construction loan from Southern Federal Savings Association of Georgia to build a home for the Bellamys, executing a security deed in favor of Southern. Subsequently, the construction loan was defaulted upon, and Resolution Trust Corporation (“RTC”) was appointed receiver. Disputes also arose between the parties, and Sunflower filed suit against the Bellamys in the Superior Court of Fayette County in Sunflower Properties v. Bellamy, Civil Action File No. 92V-0868(W) (“Bellamy F), for, among other things, their failure to pay Sunflower amounts owing under the construction contract and performing unauthorized work on the property. The Bellamys counterclaimed also seeking monetary damages for breach of contract and “specific performance of [Sunflower’s] contractual obligation to convey title to the land back to them. . . .” The jury returned a verdict awarding $6,000 to Sunflower and “clear title” to the property to the Bellamys, finding that “both [Sunflower] and the [Bellamys] breached the contract by failing to comply with terms of contract.” In rendering its judgment on the jury verdict, the trial court ordered the jury’s $6,000 award to Sunflower be made the judgment of the court; however, rather than ordering Sunflower to convey clear title in the property to the Bellamys, the trial court ordered Sunflower to convey title upon the Bellamys’ claim for specific performance of the contract in this respect. Paragraph 7 (d) of the parties’ construction contract pertinently provides: “This Construction Contract, Construction Loan, Closing Costs and purchase of building lot to be funded by proceeds from mortgage loan and cash from owner.”

The Bellamys brought the instant action (Civil Action File No. 98V-0285(M)) against Sunflower seeking damages for breach of the general warranty of title contained in the deed given in satisfaction of the foregoing judgment for Sunflower’s transfer of title to the property subject to Southern’s lien. Sunflower’s answer and counterclaim included affirmative defenses of res judicata and collateral estoppel and a counterclaim for reformation of the deed. The instant appeal is from the trial court’s grant of summary judgment in favor of Sunflower upon Sunflower’s motion to dismiss by virtue of the doctrine of res judicata and motion for summary judgment. Held'.

1. The Bellamys contend that the superior court erred in finding that Bellamy I was res judicata as to their liability to pay Southern’s construction loan. While the jury awarded the Bellamys “clear title” to the property by its verdict in Bellamy I, the judgment on the verdict made clear that the sole relief granted the Bellamys by the litigation was specific performance by and between the parties, including Sunflower’s contractual obligation to convey title to the land. This Sunflower did subject to restrictions of record thereon. In their brief on appeal, the Bellamys acknowledge their obligation to pay the Southern loan under the construction contract as decided adversely to them in Bellamy I. They argue, however, that res judicata does not foreclose reversal of the grant of summary judgment to Sunflower since their entitlement to clear title to the property was not litigated in the Bellamy I trial. This argument notwithstanding, we conclude that entry of judgment on the verdict reconciling the jury’s verdict as it related to the question of title to the Bellamys’ claim for specific performance in Bellamy I decided the title issue. This being so, such judgment on the verdict requiring specific performance of the construction contract by and between the parties, inclusive of Sunflower’s obligation to convey title under the terms of the contract, became the law of the case, foreclosing further consideration of the issue in the case sub judice under the doctrine of res judicata. OCGA § 9-12-40; Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (doctrine of res judicata prevents relitigation of all claims previously adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action).

2. The superior court did not err in ruling that the judgment on the verdict in Bellamy I ordered specific performance of the contract to convey title rather than the conveyance of clear title to the property. The record reflects that the trial court therein merely conformed the jury’s verdict to the Bellamys’ pleadings and the evident intent of the jury. In this regard,

[a] trial court has authority to amend a verdict in matters of form, or to put it in such shape as to speak the true intent of the jury in accordance with the pleadings and the evidence; but it does not have authority to write a new verdict different from the one returned by the jury. Davis v. Wright, 194 Ga. 1 (4) (21 SE2d 88) (1942).

Purcell v. C. Goldstein & Sons, Inc., 264 Ga. 443, 444 (2) (448 SE2d 174). Apart from the Bellamys’ pleadings in Bellamy I, it is apparent on the face of the jury’s verdict that it intended the terms of the construction contract to be adhered to since it found both parties were in breach of the construction contract and tailored its awards to the parties accordingly. Moreover, the Bellamys, having sought specific performance, cannot be heard to complain at not having received more than specific performance. See Whiteway Neon-Ad. v. Maddox, 211 Ga. 915, 917-918 (3) (89 SE2d 650).

Decided October 20, 1999

Reconsideration denied November 3, 1999

Michael Kessler, for appellants.

John W. Mrosek, for appellees.

3. Neither did the superior court err in ruling the Bellamys were responsible to pay the construction loan Southern provided Sunflower. We have held that the trial court in Bellamy I properly conformed the jury’s verdict to the pleadings and the evident intent of the jury. The construction contract entered into by the parties expressly obligated the Bellamys to pay the Southern loan, and, as we have noted, the Bellamys concede as much by their brief on appeal. This claim of error is without merit.

4. Finally, the Bellamys contend that the superior court erred in granting summary judgment to Sunflower relying upon the validity of their claims of error, as above. Our review of the record indicates that the Bellamys offered no evidence in opposition to Sunflower’s motion for summary judgment. There is no evidence shewing discharge of the price of the house as called for in the construction contract. Neither is there a dispute that the Bellamys were required to pay the purchase price of the house as a condition to receiving title to the property. In this regard, Kenneth Bellamy testified by affidavit that “[Sunflower] was to build a house and deed the property back to [him] upon payment of the purchase price.”

Accordingly, in light of our disposition of Divisions 1, 2 and 3 and construing the evidence most favorably to the Bellamys de novo, we conclude that this claim of error is likewise without merit. OCGA § 9-11-56 (e); Adams v. Sears, Roebuck & Co., 227 Ga. App. 695, 696-697 (1) (490 SE2d 150).

Judgment affirmed.

Johnson, C. J, and Phipps, J., concur.

       RTC later obtained title to the property under power of sale and evicted the Bellamys from the property by dispossessory action affirmed on appeal to the Supreme Court of Georgia. See Bellamy v. Resolution Trust Corp., 266 Ga. 630 (469 SE2d 182).

       We initially transferred this case to the Supreme Court of Georgia construing it to be an equity case presenting the question of the propriety of equitable relief in the form of reformation of the deed in issue. See McGhee v. Johnson, 268 Ga. 731, 732 (492 SE2d 893); Electronic Data Systems Corp. v. Heinemann, 268 Ga. 755, 756 (1) (493 SE2d 132); Saxton v. Coastal Dialysis &c., 267 Ga. 177, 178 (476 SE2d 587). See also Curry v. Curry, 267 Ga. 66, 67 (473 SE2d 760); Layfield v. Sanford, 247 Ga. 92, 93 (274 SE2d 450). Subsequently, however, the Supreme Court returned the appeal to this Court, concluding that the appeal involves questions of contract construction and the doctrine of res judicata rather than equity or title to land.


author: Barnes, Judge.

text:
    A99A0985.
    GREEN v. THE STATE.
    (523 SE2d 632)
   Barnes, Judge.

Rodrick Green appeals from his convictions of aggravated assault and criminal damage to property in the first degree, asserting the trial court erred by denying him a pre-trial hearing under Uniform Superior Court Rule 31.6 and by erroneously charging the jury on prior difficulties between himself and the victim. He also alleges he is entitled to a new trial because he received ineffective assistance of counsel. For the reasons that follow, we affirm.

1. Green contends his convictions should be reversed because the trial court failed to rule on his motion to present evidence of specific acts of violence of the victim until after the State had presented its case. Even if we were to agree that the trial court should have ruled on the motion before the trial started, we cannot reverse Green’s conviction “where as here, appellant can show no prejudice suffered from the failure to have the hearing before trial.” Thaxton v. State, 260 Ga. 141, 144 (6) (390 SE2d 841) (1990).

We find no merit in Green’s claim that his inability to cross-examine the victim about the victim’s prior acts of violence during the presentation of the State’s case prejudiced his defense. After the trial court ruled that Green could present evidence of the victim’s prior acts of violence, Green could have recalled the victim for purposes of cross-examination. See Yebra v. State, 206 Ga. App. 12, 14 (2) (424 SE2d 318) (1992). Instead of recalling the victim, however, Green and two other defense witnesses testified about two separate incidents in which the victim threatened a third party with a meat cleaver during an altercation and hit a homeless man with a baseball bat because he began eating leftover food in a restaurant where the victim worked.

2. In his second enumeration of error, Green alleges the trial court committed reversible error when it gave the following charge, of its own accord, to the jury:

Evidence of prior difficulties between the defendant and the alleged victim has been admitted for the sole purpose of illustrating, if it does so illustrate, the stated feeling between the defendant and the alleged victim and the bent of mind and course of conduct on the part of the defendant. Whether this evidence illustrates such is a matter solely for you, the jury, to determine, but you are not to consider such evidence for any other purpose.

Green argues this charge improperly characterized the testimony at trial as showing that he had engaged in prior violent acts with the victim when the evidence showed only that the victim had engaged in prior violent acts with other people. Green also argues this charge improperly advised the jury that the evidence was to be used to determine defendant’s bent of mind and course of conduct, instead of the victim’s bent of mind and course of conduct.

Based on our review of the evidence submitted during Green’s trial, we agree that there was no evidence of prior difficulties between Green and the victim. Thus, the charge, while abstractly correct, was not authorized by the evidence. We disagree, however, with Green’s contention that the jury should have been advised that the victim’s prior violent acts should be used to evaluate the victim’s bent of mind and course of conduct. The issue before the jury was Green’s state of mind at the time he fired his gun and whether he did so in self-defense based on his knowledge of the victim’s previous behavior.

Although we agree the charge was not warranted, we will not reverse a criminal conviction simply because a trial court gives an abstractly correct jury instruction that is not authorized by the evidence. Harm must also result, and we cannot reverse a conviction when it is highly probable that an erroneous jury instruction did not contribute to the verdict. Francis v. State, 266 Ga. 69, 72 (3) (463 SE2d 859) (1995). A review of the charge as a whole shows the trial court properly instructed the jury at length about affirmative defenses, justification, self-defense, and the State’s burden of proving beyond a reasonable doubt that Green did not act in self-defense. In the context of the entire charge, the unwarranted charge was no more than a passing reference, and it is highly probable that it did not contribute to the verdict.

3. In his remaining enumeration of error, Green claims he received ineffective assistance of counsel because his trial counsel (a) acquiesced in the trial court’s decision not to hold a pre-trial hearing on the admissibility of the victim’s prior acts of violence and was unprepared to proceed with the hearing before trial; (b) failed to object to the erroneous charge discussed in Division 2 of this opinion; and (c) failed to object to the State’s comments on the exercise of Green’s right to remain silent during cross-examination of a police officer and closing argument.

“The Sixth Amendment to the U. S. Constitution guarantees a criminal defendant the right to effective assistance of counsel.” Ross v. Kemp, 260 Ga. 312, 313 (393 SE2d 244) (1990).

In order to show ineffective assistance of counsel, [appellant] must show that counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Jowers v. State, 260 Ga. 459 (396 SE2d 891) (1990).

LaJara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993).

A court considering a claim of ineffectiveness of counsel is not required to address the performance portion of the inquiry before the prejudice component “or even to address both components if the defendant has made an insufficient showing on one.” Id. Finally, a trial court’s finding of effectiveness must be upheld unless clearly erroneous. Cammon v. State, 269 Ga. 470, 472 (4) (500 SE2d 329) (1998).

We find no merit in any of Green’s ineffective assistance of counsel claims because he has failed to show a reasonable probability that the result of his trial would have been different but for his counsel’s alleged ineffective acts. We have already concluded in Divisions 1 and 2 that no prejudice resulted to Green as a result of the trial court’s failure to hold a pre-trial hearing or its jury charge on prior difficulties with the victim.

Green’s third allegation of ineffective assistance, that his counsel failed to object to the State’s comments on the exercise of his right to remain silent, warrants further discussion. Green bases this allegation on the following testimony by the police officer who responded to a report of a discharged firearm at the victim’s apartment:

[THE STATE]: Now, in your ten years of experience in law enforcement, Officer Hickey, have you been involved in cases where someone claimed self defense?
[WITNESS]: Yes, I have.
[THE STATE]: Approximately how many times?
[WITNESS]: I couldn’t count. It’s a large amount.
[THE STATE]: Okay. And typically in those situations when you respond to them —.
[DEFENSE COUNSEL]: Your Honor, I’m just going to make an objection to this. I think it’s an ultimate issue question. We want to voir dire the witness outside the presence of the jury.
THE COURT: What’s the question?
[THE STATE]: The question, Your Honor, is I’d like him to explain what his experience has been when he has responded to scenes where there is a claim of self-defense.
[DEFENSE COUNSEL]: It’s an ultimate issue question.
[THE STATE]: It’s not an ultimate issue as to whether or not it’s the issue in this case. He’s talking about the typical response.
THE COURT: I’ll overrule the objection.
[THE STATE]: Thank you, Your Honor.
[DEFENSE COUNSEL]: Thank you, Judge.
[THE STATE]: Can you please explain to the ladies and gentlemen what your experience has been in cases where someone is claiming self defense?
[DEFENSE COUNSEL]: Your Honor, I object on the terms of vagueness. It calls for a narrative response.

Decided October 19, 1999

Reconsideration denied November 3, 1999.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

J. Tom Morgan, District Attorney, Carol M. Kayser, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

[THE STATE]: I’m trying not to lead the witness, your Honor.
THE COURT: Overruled.
[WITNESS]: In my course of experience, I have experienced when an individual is claiming self defense they normally are at the scene of the crime when it occurred or they might call us at a different time.
[THE STATE]: When you say they’re at the scene of the crime, do you mean they wait for the police?
[WITNESS]: Yes, they do. They’re at the scene. They’re waiting for us. And normally they’re the ones who call. In this particular incident, that did not occur.
[THE STATE]: I have nothing further. . . .

Green also claims the State commented on the exercise of his right to remain silent by referring to this testimony during its closing argument. We cannot consider this portion of Green’s claim, however, because it was not raised below in the motion for new trial that was filed by his current appellate counsel. See Seese v. State, 235 Ga. App. 181, 183-184 (3) (509 SE2d 94) (1998) (failure to raise ineffective assistance of counsel claim at earliest opportunity results in a waiver of that claim).

Thus, we must determine whether the outcome of Green’s trial would have been different if his lawyer had made a different objection to the testimony outlined above. Based on our review of the evidence, we cannot find the trial court clearly erred when it determined that Green failed to show prejudice as a result of his counsel’s failure to object on a different ground. See Wade v. State, 208 Ga. App. 700, 701-702 (2) (431 SE2d 398) (1993).

Judgment affirmed.

Blackburn, P. J, and Ellington, J., concur.


author: Andrews, Presiding Judge.

text:
    A99A1418.
    In the Interest of J. L. B., a child.
    (523 SE2d 645)
   Andrews, Presiding Judge.

J. L. B. appeals from a juvenile court order transferring her case from that court to the superior court under the provisions of OCGA § 15-11-39. Because the juvenile court’s determination is supported by the evidence in the record, we affirm.

The case arose when J. L. B., who was fourteen at the time, and two other juveniles stole a car belonging to the father of one of the youths and ran away. The car broke down, and the three juveniles walked to the house of someone J. L. B. knew through school, Denise McClure. J. L. B. asked McClure to take them to a nearby trailer park. After the three runaways were in the van, they told McClure that she must take them to Alabama. When McClure refused, one of the girls, not J. L. B., held a butcher knife to McClure’s throat and told her to stop driving and give her the keys.

McClure stopped the van and got out. One of the other juveniles began driving and, when officers tried to stop the van, refused to stop and sped up with the officers in pursuit. At some point, the van ran out of gas, and all three of the youths jumped out of the van while it was still coasting. Officers caught them almost immediately. When the officers searched J. L. B.’s belongings, they found another butcher knife in her bag.

J. L. B. was charged with armed robbery, aggravated assault, hijacking, and runaway. The State petitioned the juvenile court to transfer the case to superior court, and the court granted that petition. This appeal followed.

A juvenile court may transfer an offense for prosecution in the superior court if the court determines there are reasonable grounds to believe that (1) the child committed the delinquent act; (2) the child is not mentally ill; (3) the interests of the child and the community require that the child be placed under legal restraint and the transfer be made; and (4) the child was at least 15 years of age at the time of the alleged delinquent conduct or the child was 13 or 14 years of age at the time and committed an offense for which the punishment is loss of life or confinement for life in a penal institution. OCGA § 15-11-39 (a) (3), (4). The juvenile court found that J. L. B. was charged with armed robbery, a crime punishable by life imprisonment, that there were reasonable grounds to believe she committed the delinquent acts, that she was not mentally ill, and that J. L. B. was not amenable to treatment in the juvenile system. This last factor, combined with the seriousness of the offenses, led the juvenile court to conclude that it was in the best interests of the child and the community that the case be transferred to the superior court.

On appeal from this determination, J. L. B. claims the court erred in two ways. First, she argues there were not reasonable grounds to believe that she committed armed robbery and second, there was not sufficient evidence to find that she would not be amenable to treatment in the juvenile system.

When considering an order of the juvenile court transferring jurisdiction,

the function of this court is limited to ascertaining whether some evidence exists to support the juvenile court’s determination. Determinations of a juvenile court made on an exercise of discretion!,] if based upon evidence, will not be controlled by this court.

(Punctuation omitted.) In the Interest of E. M., 198 Ga. App. 729, 732 (402 SE2d 751) (1991).

1. J. L. B. first argues the juvenile court erred because the State did not establish that she committed the offense of armed robbery. Specifically, J. L. B. argues there is no evidence she was a party to the crime of armed robbery. She contends the State did not establish any proof of a common criminal intent between the juveniles to commit the offense. But, the statute requires only that the court find there were “reasonable grounds” to believe the child committed the crime, not proof beyond a reasonable doubt. In re K. S. J., 258 Ga. 52 (365 SE2d 820) (1988).

There were reasonable grounds to determine J. L. B. was a party to the crime of armed robbery. Everyone concerned in the commission of a crime is a party to that crime and may be charged and convicted. A person is “concerned” in the commission of a crime if he intentionally aids or abets in the commission of the crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime. OCGA § 16-2-20. Here, the juvenile court could have reasonably concluded from the evidence that there was a common criminal intent between the juveniles to take the van from McClure by using the butcher knife. OCGA § 16-8-41. There was evidence that both girls were carrying butcher knives, that J. L. B. was the one who talked McClure into giving them a ride, that the juveniles originally intended to go to Florida, and that they intended either to force McClure to take them there or to drive her van there themselves. Thus, the evidence supports the juvenile court’s finding that reasonable grounds exist to believe J. L. B. committed the acts alleged. In the Interest of S. B. B., 234 Ga. App. 778-779 (507 SE2d 879) (1998).

2. J. L. B. also argues the juvenile court erred in finding that there was only a “slim chance” that she would be amenable to treatment in the juvenile system. We disagree.

At the time of the hearing on this motion, J. L. B. had two pending delinquency charges and two pending unruliness charges. Other than these charges, J. L. B. had not been involved with the juvenile justice system before. The evidence at the hearing was that J. L. B. had been in therapy for about three years but showed no improvement. The psychologist who evaluated J. L. B. said she was not mentally retarded or mentally ill and knew right from wrong. J. L. B. was a substance abuser and appeared to suffer from, among other things, oppositional defiant disorder. The psychologist recommended long-term intensive therapy in a secure environment. But she said this would be effective only if J. L. B. were to accept it.

The juvenile justice system representative, however, said that based on J. L. B.’s psychological profile and the severity of the charges, she could not recommend placement at one of the long-term treatment centers. When asked whether there was anything the juvenile justice system could offer J. L. B. if she were treated as a juvenile, she replied there was not; the only possible treatment under the juvenile system would be as a “designated felon,” and she did not consider this an “appropriate treatment.”

The trial court properly considered the evidence on whether J. L. B. was amenable to treatment in the juvenile system.

[Wlhether a child is amenable to treatment in the juvenile system is a factor to consider in determining the child’s and the community’s interest. If the evidence shows the child is not amenable to treatment, the child’s interest in treatment in the juvenile system is minimized because of the treatment’s potential ineffectiveness, and, because of that ineffectiveness, the community has an interest in treating the child as an adult.

State v. M. M., 259 Ga. 637, 639 (2) (a) (386 SE2d 35) (1989). Moreover, even if there is evidence that the child may be amenable to treatment, the juvenile court may still transfer the case if it finds that the amenability factor is outweighed by the interest of the community in treating the child as an adult. In re K. S. J., 258 Ga. 52, 54 (365 SE2d 820) (1988).

In this case, the juvenile court’s order is thorough and well reasoned. It lays out in great detail all the factors it considered in determining that J. L. B. would not likely be amenable to treatment in the juvenile system. The court noted that J. L. B. would not be amenable to outpatient, insight-oriented treatment and that she was too dangerous for placement in a secure, residential setting.

The court’s order also shows that the court balanced the child’s interest in being treated in the juvenile system, including amenability to treatment, against the community’s interest in treating the child as an adult. Waller v. State, 261 Ga. 830, 831 (412 SE2d 531) (1992). The judge observed J. L. B.’s behavior in court and concluded that she was not concerned with the issues facing her. The court noted that she had been in mental health treatment for three years with no apparent improvement and refused to take medication when prescribed.

Decided October 19, 1999

Reconsideration denied November 3, 1999

David L. Smith, for appellant.

James R. Osborne, District Attorney, Fred A. Lane, Jr., Assistant District Attorney, for appellee.

Accordingly, there was sufficient evidence to support the juvenile court’s determination that J. L. B. showed only a slim chance of being amenable to treatment in the juvenile system, and therefore, because of the serious nature of the offenses, the interests of the community and the child would be better served if the case were transferred to superior court. We find no abuse of discretion in the juvenile court’s determination.

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.


author: Smith, Judge.

text:
    A99A0791.
    WALLACE et al. v. NISSAN OF UNION CITY, INC.
    (524 SE2d 542)
   Smith, Judge.

Lamar E. Wallace and his wife, Mary L. Wallace, sued Nissan of Union City, Inc! (“Nissan”) for Lamar Wallace’s injuries and for Mary Wallace’s loss of consortium after Lamar Wallace slipped and fell on ice in Nissan’s car lot while shopping for a vehicle. Finding that Nissan lacked any knowledge of the icy hazard on its premises, the trial court granted summary judgment to Nissan. Wallace contends that the evidence did not authorize that judgment, and we agree. Premises liability cases are not susceptible to summary adjudication except where the evidence is “plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997). Here, it was not.

When viewed in the light most favorable to Wallace, the nonmovant, the evidence showed the following. On December 20, 1996, Lamar Wallace left home and drove to this Nissan dealership intending to purchase a used pickup truck. Wallace testified that when he arrived at about 11:00 a.m., it was a “brilliant day” and described the weather as “cool.” A few days earlier, it had snowed, and unknown to Wallace, some ice remained on Nissan’s lot. According to Wallace, the snow from a few days earlier was gone completely, and neither snow nor ice appeared on the roads or even on the sides of the roads.

As Wallace was inspecting a new truck, Harry Powell, a car salesman, left the sales building to offer help. When Wallace expressed his interest in obtaining a used vehicle, Powell informed him that all the used pickups were on the other side of the building. Powell then escorted him to a different section of the sales lot. While they were walking and as Powell engaged Wallace in conversation, Wallace suddenly slipped and fell on some ice. After landing near the northwest corner of the sales building, Wallace noticed that underneath him was a “thin skim of ice.” No cones or salt had been placed in the immediate area of Wallace’s fall. Wallace denied seeing any warning cones on Nissan’s premises.

In support of its motion for summary judgment, Nissan offered the affidavits of Powell, the salesman assisting Wallace, and Samuel Ajayi, Nissan’s sales manager. In his affidavit, Powell admitted that “I was aware of ice accumulations on the sidewalk and around the entrances to the sales building, but did not have knowledge of ice elsewhere on the premises.” Powell testified that to the best of his knowledge no one else had slipped or fallen on the premises.

Ajayi testified that it was standard practice “for a member of the service department, who arrives at the dealership first every morning, to inspect the premises and take the necessary precautions to remedy any hazards, or to place adequate warnings to alert customers of same.” According to Ajayi, “[t]hat morning, red cones had been placed on the sidewalk and around the entrances to the sales building, where there were apparent ice accumulations. Melting agents were also placed on all visible ice.” Ajayi also averred that “[t]o the best of my knowledge, no one had knowledge of the ice that caused Plaintiff’s fall.”

1. Wallace contends that material issues of disputed fact precluded summary judgment. We agree.

The formation of ice even from natural forces unaffected by human agency “does not preclude examination into the question of whether or not the defendant was negligent in failing to take remedial action.” Fincher v. Fox, 107 Ga. App. 695, 698 (1) (131 SE2d 651) (1963). Liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is predicated in part upon the relative knowledge of the respective parties as to the condition or hazard which caused the injuries. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992). As a general rule, when the plaintiff’s knowledge of the hazard equals or exceeds that of the defendant, the plaintiff cannot recover if, by using ordinary care, he could have avoided the consequences of the defendant’s negligence. Id.

Here, the threshold inquiry is whether the evidence, when construed most favorably toward Wallace, demonstrates that he had knowledge superior to or equal to that of Nissan as to the icy hazard that precipitated his fall. Dumas v. Tripps of North Carolina, 229 Ga. App. 814, 815 (495 SE2d 129) (1997). Although Powell admitted knowing that there were accumulations of ice around the sales building, Wallace denied seeing any ice anywhere that morning. It therefore cannot be said as a matter of law that Wallace had knowledge of this specific hazard that equaled or surpassed that of Nissan. See Ingram v. Toccoa Triple Cinema, 222 Ga. App. 409, 411 (474 SE2d 293) (1996); compare Shansab, supra at 451 (despite knowing about icy condition, plaintiff nevertheless attempted to cross icy parking deck).

Even assuming that an unnamed employee had inspected the sales lot earlier in the morning, such an inspection would not necessarily foreclose Wallace’s recovery. Whether the employee conducted a cursory and inadequate inspection which failed to disclose the ice on which Wallace apparently slipped and whether the ice was discoverable upon a reasonable inspection are issues necessitating jury resolution. See Davis v. Piedmont Hosp., 222 Ga. App. 97, 98-99 (473 SE2d 531) (1996). Similarly, a jury must decide whether Nissan breached its statutory duty under OCGA § 51-3-1 to keep its premises in a reasonably safe condition by negligently conducting that inspection or by failing to warn of the dangerous condition. Robinson, supra at 740.

Since no evidence showed that Wallace knew about the ice, Nissan cannot rely upon cases holding that a plaintiff’s recovery is foreclosed where the plaintiff had knowledge about inclement weather and icy conditions that was equal to that of the defendant. Compare Columbus Doctors Hosp. v. Thompson, 224 Ga. App. 682, 683-684 (482 SE2d 705) (1997); Elder v. Care-More, 224 Ga. App. 712, 713 (481 SE2d 870) (1997) (plaintiff knew about perilous wintry conditions and had observed snow on defendant’s pavement); Fisher v. HBS Mgmt., 220 Ga. App. 752-753 (469 SE2d 885) (1996); Westbrook v. M & M Supermarkets, 203 Ga. App. 345-346 (1) (416 SE2d 857) (1992).

2. Wallace also contends that the trial court failed to consider and properly apply the distraction doctrine. We agree.

[T]he distraction doctrine holds that “one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted.” [Cits.] Application of the doctrine has the effect of excusing an invitee from exercising the otherwise required degree of care because of the circumstances created by the purported distraction.

Decided November 3, 1999.

Decker & Hallman, Richard P. Decker, for appellants.

The Hines Firm, John P. Hines, E. Lee Redfern, for appellee.

Robinson, supra at 744 (2) (a). The distraction theory is not an independent theory of recovery but may operate to excuse or negate a plaintiff’s failure to discover the hazard when the source of the distraction is attributable to the defendant. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). When an invitee’s attention is diverted by the conduct of defendant’s employee, a factual issue may arise as to whether the plaintiff failed to exercise reasonable care for his safety for a reason attributable to the defendant. Robinson, supra at 746; Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994).

Here, it is undisputed that it was Nissan’s employee, Powell, who suggested that Wallace accompany him to walk toward the opposite side of the sales building. At the time of Wallace’s fall, Powell and Wallace were engrossed in conversation. Wallace testified “we were looking at each other, as we were talking, walking away.” Whether Powell distracted Wallace from discovering the hazard, whether Powell breached a duty to warn Wallace about ice in that vicinity, and whether Wallace did not exercise proper care for his own safety are issues that a jury must decide. See Redding v. Sinclair Refining Co., 105 Ga. App. 375, 379 (2) (124 SE2d 688) (1962); compare Yeaple v. Grand Union Co., 207 Ga. App. 15 (427 SE2d 13) (1992).

Judgment reversed.

Pope, P. J., and Eldridge, J., concur.

       Inexplicably, Ajayi’s affidavit refers to December 18,1997, nearly a year after the incident at issue. Similarly, Powell’s affidavit refers to events subsequent to a storm occurring on a date almost a year after this incident.


author: Phipps, Judge.

text:
    A99A1361.
    BAUGHAN v. ALAOUI.
    (524 SE2d 536)
   Phipps, Judge.

On December 31, 1997, Abdelmajid Moulay Alaoui sued Nancy Haynes Baughan for injuries arising out of a January 2, 1996 automobile collision. The suit was filed two days prior to the lapse of the two-year statute of limitation for personal injury claims. On January 16, 1998, a process server attempted to serve Baughan. The process server left the summons and complaint with Arlinda Brown, Baughan’s secretary, at the law firm where Brown and Baughan, an attorney, were employees. Brown assured the process server that Baughan had authorized her to accept the documents.

On February 18, 1998, Baughan filed a special appearance and answer raising as defenses insufficiency of service, statute of limitation and laches, among others. Later, Baughan moved to dismiss, alleging Alaoui’s claims were barred by the statute of limitation and that Alaoui was guilty of laches. The trial court, without making separate findings of fact, denied Baughan’s motion to dismiss. Because we find that Baughan failed to satisfy her burden of showing improper service and because we find that the trial court did not abuse its discretion by finding that Alaoui had effected service in a proper and diligent manner, we affirm.

1. The evidence before the trial court with regard to service was submitted through affidavits. In her affidavit, Baughan states that:

The Summons and Complaint in this action were not given to me personally, nor were they given to me by any resident of my home. Instead, the Summons and Complaint were given to me by an employee of [my law firm]. Upon information and belief, the suit papers were left with her at the reception desk.

Alaoui appointed Daldred Mason his special agent for service of process. Mason testified by affidavit that

I asked for Ms. Baughan at the receptionist area [at Baughan’s office]. The receptionist called back to her office announcing that I was there to see her. Ms. Baughan sent Arlinda Brown, her secretary, to the reception area. Ms. Arlinda Brown told me that Ms. Baughan was busy and that Ms. Baughan said that it was ok to give the documents to her. . . . But for the fact that Ms. Arlinda Brown stated that she had Ms. Baughan’s authority to accept the documents from me, I would not have just left them with a secretary or receptionist or any other employee of the law firm. The Complaint for Damages was left with Ms. Baughan’s agent based upon her express authority.

OCGA § 9-11-4 (d) (7) provides that service may be made by copy of summons and complaint

to the defendant personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

Baughan had raised the defense of improper service of process in her answer. And, in her brief supporting her motion to dismiss, she questioned the sufficiency of service under OCGA § 9-11-4 (d) (7), alleging that service was not accomplished by any permissible method and that “Plaintiff left the suit papers with an employee at Defendant’s place of employment.” Therefore Baughan had placed the issue of proper service under OCGA § 9-11-4 (d) (7) before the trial court.

“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” And this is a heavy burden. Return of service constitutes a prima facie showing of personal service. “The defendant is apprised by the return of what he must contest.” Mason’s affidavit states that he effected personal service on Baughan by serving her authorized agent.

Because Baughan challenges the service which was purportedly made on her personally through Brown, as her agent, Baughan bears the burden of coming forward with evidence that she was not served personally through her agent for purposes of OCGA § 9-11-4 (d) (7). Baughan, however, presented the trial court with no evidence bearing upon the issue of agency. The opinions cited by Baughan to support her argument that service on her secretary was not personal service on her do not address the situation where, as is the case here, the process server based service on the alleged express authority of an individual to accept documents on her principal’s behalf. Because Baughan failed to carry her burden in challenging the sufficiency of service, the trial court correctly denied her motion to dismiss for failure to effect proper service.

2. Alaoui filed suit on December 31, 1997, two days before the two-year statute of limitation for personal injury claims expired. Baughan was served on January 16, 1998. Service will relate back to the time of filing to avoid the running of the statute of limitation if Alaoui acted in a reasonable and diligent manner to ensure proper service was made as quickly as possible. On appeal, the question is whether the trial court abused its discretion in concluding that there was due diligence by Alaoui in seeking to perfect service.

Decided November 3, 1999.

Sharon W. Ware & Associates, Panton P. Pou, Susan E. Cartwright, for appellant.

Harriett E. AbuBakr, Janise L. Miller, for appellee.

Baughan argues that Alaoui did not show the greatest possible diligence in effecting service, citing Sykes v. Springer and Roberts v. Bienert. In Roberts, the delay in effecting service was almost one year, and in Sykes the delay in effecting service was one hundred six days. Here, service was made only 16 days after Alaoui filed the action, and therefore we cannot find that the trial court abused its discretion as a matter of law by denying Baughan’s motion to dismiss.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

        Patterson v. Coleman, 252 Ga. 152 (311 SE2d 838) (1984).

        Denham v. Jones, 96 Ga. 130, 132 (23 SE 78) (1895); Norman Svc. Indus. v. Lusty, 168 Ga. App. 164, 165 (308 SE2d 411) (1983).

        Harvey v. Harvey, 147 Ga. App. 154 (1) (248 SE2d 214) (1978).

        Hickey v. Merrit, 128 Ga. App. 764, 766 (197 SE2d 833) (1973).

        American Erectors v. Hanie, 157 Ga. App. 687 (278 SE2d 196) (1981); Collins v. Peacock, 147 Ga. App. 424 (249 SE2d 142) (1978); Bible v. Hughes, 146 Ga. App. 769 (247 SE2d 584) (1978).

       OCGA § 9-3-33.

        Anderson v. Hughes, 196 Ga. App. 186, 187 (395 SE2d 623) (1990).

        Siler v. Johns, 173 Ga. App. 692, 693 (327 SE2d 810) (1985).

       220 Ga. App. 388, 390 (469 SE2d 472) (1996).

       183 Ga. App. 751 (360 SE2d 25) (1987).


text:
    A99A1425.
    BUSBEE v. CHRYSLER CORPORATION.
    (524 SE2d 539)
   Smith, Judge.

A truck that Charles Busbee did not own but drove regularly for several months developed mechanical problems. Busbee sued Chrysler Corporation (“Chrysler”), the truck’s manufacturer, seeking special, general, and punitive damages, as well as attorney fees. The trial court granted Chrysler’s motion for summary judgment for the entirety of Busbee’s case. Because none of Busbee’s claims can survive as a matter of law, we affirm.

When viewed in the light most favorable to Busbee, the evidence showed that Busbee’s friend, Bernard Foster, purchased a new Dodge Ram pickup truck from a Chrysler dealership on June 1, 1996. Although the vehicle was titled in Foster’s name, Busbee obtained exclusive use of the truck from Foster in exchange for making the finance payments. On February 12, 1997, while Busbee was driving the truck to work, the engine suddenly seized, stranding Busbee in rush hour traffic.

When an inspection of the vehicle revealed signs of a lack of appropriate maintenance, the service manager at the dealership contacted Steven Morris, a Chrysler management official who had expertise in automotive mechanics. After the lower half of the engine had been disassembled, Morris examined the oil pan, oil pickup tube, and various internal engine components and determined that the truck exhibited obvious signs of improper maintenance. Morris found chunks of caramelized oil or “sludge” and blockages created by the sludge. According to Morris, “oil sludge is caused by lack of changing the oil, depending on the use of the vehicle.” Based on these findings, Morris decided that replacement of the engine should not be covered under the warranties that Foster had with Chrysler.

Subsequently, Foster, the truck purchaser, sued Chrysler for breach of express warranty and breach of the service contract. In the same action, Busbee asserted a separate claim against Chrysler for “strict liability for property damage for the loss of use of the vehicle in a sum in excess of $9,000.00.” Busbee pursued punitive damages under a theory that “ [defendant's actions in the premises were wilful, wanton and a conscious disregard of the consequences,” and sought attorney fees on the basis that Chrysler’s “actions in the premises have been stubborn and litigious.”

After the trial court granted summary judgment to Chrysler on all of Busbee’s claims, Busbee filed this appeal.

1. Busbee contends that material issues of disputed fact precluded summary judgment as to his claim for “property damage under strict liability in tort.”

While conceding that he lacked privity of contract with Chrysler, Busbee argues that his claim for strict liability was viable under either OCGA § 51-1-11 or § 51-10-2.

OCGA § 51-1-11 (b) (1) specifies:

The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.

(Emphasis supplied.)

Subject to two narrow exceptions for accident and misrepresentation, whenever subsection (b) (1) imposes strict liability upon a manufacturer for defective products, recovery in tort is permitted only in the event of either personal injury or damage to property other than to the property that was the subject of the sale. Advanced Drainage Systems v. Lowman, 210 Ga. App. 731, 734 (2) (437 SE2d 604) (1993); Bates & Assoc. v. Romei, 207 Ga. App. 81, 83 (4) (426 SE2d 919) (1993). Because the subsection is in derogation of the common law, it must be strictly construed or limited strictly to the meaning of the statutory terms. Daniel v. American Optical Corp., 251 Ga. 166, 167 (1) (304 SE2d 383) (1983). Purely economic losses, such as the loss of the use of the property or the cost of repairing it, are not compensable under this section when no personal injury or physical damage has occurred except to the allegedly defective product itself. Long v. Jim Letts Oldsmobile, 135 Ga. App. 293, 295 (2) (217 SE2d 602) (1975). “The Georgia ‘economic loss rule’ in essence prevents recovery in tort when a defective product has resulted in the loss of the value or use of the thing sold, or the cost of repairing it.” Romei, supra. Such economic losses are not recoverable under strict liability or negligence theories. Lamb v. Ga.-Pacific Corp., 194 Ga. App. 848, 849 (2) (392 SE2d 307) (1990).

Here, since it is undisputed that Busbee suffered neither an injury to his person nor to his property, his attempt to recover under a strict liability theory was foreclosed absent evidence demonstrating the existence of an exception to the economic loss rule. Lamb, supra. In fact, Busbee admitted to having calculated the amount of his damages as $9,000 by multiplying a $50 daily rental rate by a six-month time period to reflect the cost of obtaining a replacement vehicle. Because Busbee’s claim for damages for his alleged loss of use of the truck is an economic loss, it is not compensable under OCGA § 51-1-11 (b) and, therefore, must fail as a matter of law. Vulcan Materials Co. v. Driltech, 251 Ga. 383, 387 (3) (306 SE2d 253) (1983). For this reason, the testimony by Busbee’s expert that the engine failure was due to a defect at the time of manufacture cannot save the case and is not germane.

Although Busbee now asserts that his strict liability claim was also based on the prohibition of interference with mere possession of chattel (OCGA § 51-10-2), the record does not show that he urged this argument below. Busbee has not directed our attention to, nor have we found, any mention of this statute in the complaint or elsewhere in the record. This court will not consider arguments neither raised nor ruled on by the court below and that are asserted for the first time on appeal. Peavy v. Goodroe, 237 Ga. App. 36, 37 (1) (514 SE2d 699) (1999); Ellison v. State, 216 Ga. App. 639, 641 (3) (455 SE2d 361) (1995).

Decided November 3, 1999.

Peter K. Kintz, for appellant.

Charles R. Floyd, Jr., Deborah M. Floyd, for appellee.

2. Busbee claims that issues of material fact remain unresolved as to his claim for “property damage because of the ‘accident’ exception to the economic loss rule.”

“Accident” in this context means “a sudden and calamitous event which, although it may only cause damage to the defective product itself, poses an unreasonable risk of injury to other persons or property.” Vulcan Materials, supra. Although Busbee seeks to avail himself of the accident exception to the rule foreclosing recovery for pecuniary losses, he fails to offer any evidence of a calamity, sudden violence, collision with another object, or some catastrophic event, notwithstanding his assertion that this pickup truck broke down durrush hour. Compare id. (ruptured hydraulic system started fire that engulfed machine). Busbee failed to cite any authority that holds that his inconvenience, aggravation, or fright could rise to the level of an “accident” within the meaning of our law. See Jim Letts, supra at 295-296 (2).

3. Busbee contends the trial court erred in granting summary judgment on the attorney fees claim. We do not agree.

The refusal to pay a disputed claim is not the equivalent of being stubbornly litigious. Beacon Indus. v. Vanderbunt Concrete, 172 Ga. App. 573, 576 (3) (323 SE2d 871) (1984). Since Chrysler had a legitimate right to decline to pay a claim it considered factually and legally insupportable and, indeed, on which it prevailed, it cannot be said that Chrysler caused Busbee unnecessary trouble and expense. Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (1) (c) (501 SE2d 30) (1998) (recovery of attorney fees generally precluded when bona fide controversy demonstrated).

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       Busbee testified that the last oil change occurred at 11,799 miles. On the date of the incident, the vehicle’s odometer showed 25,505 miles.

       Foster’s claims survived summary judgment, and Foster is not a party to this appeal.


text:
    A99A1581.
    BRANNEN/GODDARD COMPANY v. SHEFFIELD, INC.
    (524 SE2d 534)
   Smith, Judge.

Brannen/Goddard Company, a commercial real estate firm, brought suit against Sheffield, Inc., the owner of Buckhead Centre, to recover commissions it alleged were owed for space leased to Advance Security. Sheffield answered and denied liability, and cross-motions for summary judgment were filed. The trial court granted Sheffield’s motion and denied that of Brannen/Goddard, and Brannen/Goddard appeals.

The dispute centers on the construction of two documents: the original lease executed by Advance Security and the building’s then owner, Julian LeCraw & Company, in 1985, and a letter agreement creating the continuing obligation to pay commissions to Brannen/ Goddard. We conclude that the trial court correctly found that a lease executed by Advance Security on November 1,1990, was a new lease, rather than an extension of the original lease; that the letter agreement providing for Brannen/Goddard’s commissions was unambiguous; and that it did not provide for a commission to be paid for a new lease. We therefore affirm the trial court’s grant of summary judgment to Sheffield.

The record shows that the original lease, which was procured by Brannen/Goddard, was executed on April 10,1985. Its term was from July 1, 1985 to November 30, 1992, and special stipulation 1 of the lease provides that “tenant shall have the right to extend the term of this lease for the premises by providing landlord with a 180-day prior written notice. The rental rate for the 3 or 5 year option period will be the then-current market for the building.”

On May 3, 1985, LeCraw agreed by letter to pay commissions to Brannen/Goddard on Advance Security’s lease. The agreement provided that LeCraw would pay

an amount equal to the first month’s rent ($10,003.58) . . . immediately to Brannen Goddard Real Estate upon occupancy by the tenant. Thereafter, five percent (5%) of the rental income received from the tenant will be paid to Brannen Goddard throughout the lease term. In addition, Brannen Goddard will receive five percent (5%) of all lease extensions and expansions executed by Advance Security at Buckhead Centre.

Several amendments to the lease were executed subsequently. In December 1989, Sheffield purchased the building from LeCraw’s successor. Under the terms of the purchase agreement, the purchaser executed an agreement assuming the seller’s obligations under the leases, including all leasing commissions. Thereafter, Sheffield began paying Brannen/Goddard monthly commissions due under the original lease.

In July 1990, after appointing Coldw.ell Banker Commercial Real Estate Services as its exclusive agent, Advance Security negotiated a new lease with Sheffield. The new lease was executed on November 1, 1990. It covered more and different space in the building and included a significantly reduced rental rate. Because the new lease began approximately two years before the original lease was due to expire, Sheffield continued to make commission payments to Brannen/Goddard through October 1992. It made no payments to Brannen/Goddard under the new lease.

Brannen/Goddard contends the trial court erred in concluding that Sheffield was not required to pay it commissions under the new lease. Its primary contention is that the new lease was merely a “renewal” of the old lease and that the letter agreement obligating payment of commissions to Brannen/Goddard required payment of commissions for “renewals.” We do not agree with either contention.

First, nowhere does the letter agreement obligate Sheffield or its predecessor, LeCraw, to pay commissions to Brannen/Goddard for lease “renewals.” It is true that the terms “renewal,” “new lease,” and “extension” are sometimes used interchangeably and often confused. The terms have engendered much litigation. See, e.g., Cumberland Center Assoc. v. Southeast Mgmt. &c. Corp., 228 Ga. App. 571, 576-579 (492 SE2d 546) (1997), overruled on other grounds, Atlanta Market &c. Co. v. McLane, 269 Ga. 604, 610 (503 SE2d 278) (1998); Chalkley v. Ward, 119 Ga. App. 227 (166 SE2d 748) (1969); Candler v. Smyth, 168 Ga. 276 (147 SE 552) (1929). But, a “stipulation intended merely to lengthen the time upon terms and conditions stated in the lease is an extension. [Cit.]” Crystal Blue Granite Quarries v. McLanahan, 261 Ga. 267 (1) (404 SE2d 266) (1991). See also Powell v. Norman Elec. Galaxy, 229 Ga. App. 99, 100 (1) (493 SE2d 205) (1997). The letter agreement here contemplates the payment of commissions beyond the original lease term only on “extensions and expansions.” We agree with the trial court that this phrase is not ambiguous and parol evidence may not be considered to construe it.

But even if the letter agreement authorized the payment of commissions on “renewals,” and a renewal, as distinguished from an extension, has been held to require the execution of a new lease, Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 674 (357 SE2d 100) (1987), not all new leases are renewals.

In deciding whether a succeeding lease is substantially a renewal of a preceding lease or altogether a new lease, the determination can be based on whether the succeeding lease employs drastically different terms, not simply somewhat different considerations, i.e., is the lessee occupying substantially the same space under substantially the same terms? If the succeeding lease employs substantially the same terms as the preceding lease, it may be considered a renewal even though technically a “new” lease. [Cit.]

Id.

In this case, the original lease gave Advance Security an option only to “extend [its] term.” What was contemplated was clearly an extension of the lease, on the same terms. Even if the new lease is considered a “renewal,” therefore, reading the original lease and the letter agreement together, Sheffield would have been obligated to pay Brannen/Goddard commissions if Advance Security had executed a renewal extending the term of the original lease or simply expanded its scope by including additional space under the same terms as the original lease.

Decided November 3, 1999

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, for appellant.

It is undisputed that Advance Security did not do so. It hired a new representative and negotiated an entirely different lease. The new lease covered both additional and different space and included terms “drastically different” from those in the original lease. The new document was not a “renewal” of the old lease; it was simply a new and different lease. Compare Cumberland Center Assoc., supra at 578 (examination of both leases reveals tenant occupying same space under substantially same material terms). The new lease could not have been a renewal of the original lease because the term of the old lease had not expired when the new lease was executed. Because the new lease contained material terms different from those in the original lease, it constituted a novation; when it was executed, it extinguished the original lease. “An existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject matter embraced by the original contract.” (Citations and punctuation omitted.) Powell, supra at 101. It is clear that the parties intended for the new, and different, lease to substitute for the old, original lease. In doing so, they could not impair Brannen/Goddard’s existing right to commissions under the old lease, and Sheffield acknowledged this by continuing to pay the required commissions until the expiration of the term of the original lease. The trial court correctly concluded that the new lease was neither a renewal nor an extension and no right to commissions existed beyond that term.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Gambrell & Stolz, Robert G. Brazier, Christopher R. Stovall, Seaton D. Purdom, for appellee.

       We note that although special stipulation 1 is captioned “Renewal Option,” paragraph 41 of the lease provides expressly that “[t]he captions, headings and subheadings set forth in this lease agreement are for convenience of reference only, and shall not be used in interpreting this agreement.”


text:
    A99A1605.
    AQUA SUN INVESTMENTS, INC. v. KENDRICK.
    (524 SE2d 519)
   Smith, Judge.

This appeal arose from a breach of contract action filed in Volusia County, Florida, by Aqua Sun Investments, Inc., a Florida corporation d/b/a Villas at Fortune Place, against Sharon Kendrick, a Georgia resident. Although Kendrick was personally served with the summons and complaint, she apparently did not respond. The Seventh Circuit Court of Volusia County, Florida, entered a final judgment for $10,348.06 against Kendrick and her husband, Emettress Kendrick, holding them jointly and severally liable to Aqua Sun for breaching a timeshare purchase agreement.

When Aqua Sun attempted to domesticate the Florida judgment under Georgia’s Uniform Enforcement of Foreign Judgments Law (OCGA § 9-12-130 et seq.), Kendrick moved to set aside the judgment as void for multiple reasons. Kendrick asserted: (1) the Florida court lacked personal jurisdiction; (2) the transaction lacked consideration, and Aqua Sun had failed to furnish certain disclosures; (3) the Florida judgment had been taken by default; (4) Aqua Sun failed to prove that Florida had adopted a statute similar to this state’s which would permit the filing of a foreign judgment; and (5) she did not owe any money.

After a hearing at which Aqua Sun did not participate, the trial court refused to domesticate the foreign judgment. Relying on evidence that Kendrick presented at the hearing, the court determined that the purchase of the timeshare condominium “was never completed” and that the deed from Aqua Sun to Kendrick was never delivered or recorded. The court further found that the “contract was fraudulent” because Aqua Sun had violated the terms of the purchase agreement by not affording Kendrick ten days after receipt of a public offering statement to cancel the transaction. After deciding that the “transaction” in Florida was never completed, the court found that Kendrick did not own any real estate in Florida and was, therefore, “not subject to the long arm jurisdiction of the State of Florida.” After additionally concluding that Kendrick had effectively cancelled the transaction, the court ordered that the judgment be set aside.

1. Aqua Sun asserts that the trial court erred in relying upon evidence presented during a hearing conducted in its absence. Aqua Sun claims the court sent notice to its counsel that the court did not intend to conduct a hearing on the matter unless Aqua Sun made a request for oral argument.

The party appealing bears the burden of proving error by the record. Nodvin v. West, 197 Ga. App. 92, 97 (397 SE2d 581) (1990).

[W]here the record is incomplete, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). In the absence of a transcript, we must assume as a matter of law that the evidence adduced at the hearing supported the trial court’s findings.

(Citations and punctuation omitted.) Cwiek v. State, 220 Ga. App. 36 (1) (467 SE2d 608) (1996). When an appellant fails to compile a complete record of what transpired at the trial level, appellate review is effectively precluded. Doster v. State, 218 Ga. App. 174, 175 (460 SE2d 818) (1995).

Here, Aqua Sun did not compile a complete record. First, although Aqua Sun argues that the trial court conducted proceedings in its absence without affording proper notice, Aqua Sun offered no evidence to substantiate that claim. On the contrary, in the order setting aside the judgment, the trial court stated that notice of the motion hearing had been sent to “all parties” and that “attorneys for the plaintiff did not appear.” Nor does the record indicate that after the trial court’s ruling, Aqua Sun moved for reconsideration or to set aside the judgment on the basis that Aqua Sun had been denied an opportunity to be heard. Nor did Aqua Sun make a proffer of its evidence or otherwise supplement the record.

Second, Aqua Sun failed to offer evidence that it unsuccessfully attempted to order a transcript or to reconstruct the record of the proceedings if no transcript was available. See OCGA § 5-6-41 (c) (“it shall be the duty of the moving party to prepare the transcript from recollection or otherwise”). The omission, as here, of evidence necessary for the determination of issues raised on appeal results in affirmance of the decision below. Bennett v. Exec. Benefits, 210 Ga. App. 429 (436 SE2d 544) (1993); see Atwood v. Southeast Bedding, 226 Ga. App. 50, 52 (485 SE2d 217) (1997).

2. Aqua Sun contends the trial court erred in setting aside the judgment on the ground that the Florida court lacked personal jurisdiction.

“A trial court’s ruling on a motion to set aside a judgment will be affirmed if there is any evidence to support” that ruling. Hoesch America v. Dai Yang Metal Co., 217 Ga. App. 845, 849 (3) (459 SE2d 187) (1995). The standard for setting aside a foreign judgment is the same as that of OCGA § 9-11-60 (d). Arnold v. Brundidge Banking Co., 209 Ga. App. 278 (433 SE2d 388) (1993), overruled on other grounds, Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 706 (463 SE2d 23) (1995). “The defendant must show that the judgment is defective due to lack of jurisdiction over the person or subject matter, due to fraud, accident or mistake, or due to a nonamendable defect on the face of the pleadings. [Cit.]” Id. Here, the trial court found that Kendrick had satisfied that burden on two separate grounds: the lack of personal jurisdiction and due to fraud.

When an action is filed to domesticate a foreign judgment, that judgment may be collaterally attacked on the basis that the foreign court lacked personal jurisdiction. Sanwa Leasing Corp. v. Stan Hunt Constr. Co., 214 Ga. App. 837 (449 SE2d 347) (1994). A collateral attack based on lack of personal jurisdiction is precluded only when the defendant has appeared in the foreign court and has had an opportunity to litigate the issue. Hicks v. Evans, 230 Ga. App. 114, 115 (1) (495 SE2d 588) (1998); Ramsey Winch Co. v. Trust Co. Bank, 153 Ga. App. 500, 501 (1) (265 SE2d 848) (1980). Where, as here, the foreign judgment is obtained by default, the existence of personal jurisdiction is not presumed, and the party seeking to enforce the judgment must negate the defense of lack of jurisdiction. Brown v. U. S. Fidelity &c. Co., 208 Ga. App. 834, 835 (2) (432 SE2d 256) (1993).

In order to accord the foreign judgment full faith and credit, personal jurisdiction over Kendrick must have been proper under Florida law. OCGA § 9-12-114 (2). Aqua Sun asserted that under Florida law, a Florida court may exercise personal jurisdiction over a nonresident defendant who owns, uses, or possesses real property situated within the State of Florida. Fla. Stat. Ann. § 48-193 (5). But here, based on the evidence presented by Kendrick, the trial court determined that statute did not apply.

Having reviewed the incomplete record provided on appeal, we cannot say that the trial court clearly erred in finding that because Kendrick’s cancellation of the contract was effective, she did not own any real estate in Florida which could have subjected her to personal jurisdiction in that state. See Mut. Ins. Co. &c. v. Dublin Pub, 190 Ga. App. 94, 95 (378 SE2d 497) (1989) (factual findings will not be set aside unless clearly erroneous). Because Aqua Sun did not prove the applicability of the Florida long-arm statute, it failed to sustain its burden of negating Kendrick’s jurisdictional defense. Brown, supra; see Chambers v. Navare, 231 Ga. App. 318 (498 SE2d 173) (1998) (physical precedent only).

Decided November 3, 1999.

Hays & Potter, James W. Hays, for appellant.

Dye, Tucker, Everitt, Long & Brewton, John B. Long, for appellee.

3. In light of the above holding, we need not reach Aqua Sun’s contention that the trial court erred in setting aside the judgment on the basis of fraud.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       Although the court made specific factual findings in its multi-page order, the appellate record does not contain a transcript of the proceedings.


text:
    A99A1759.
    DONALDSON v. THE STATE.
    (524 SE2d 522)
   Pope, Presiding Judge.

Davion Donaldson was tried and convicted of aggravated assault and possession of a firearm during the commission of a crime. We affirm, concluding for the following reasons that the evidence was sufficient to convict and that the trial court did not err in restricting Donaldson’s cross-examination of the victim.

Viewing the evidence in the light most favorable to the verdict, on February 16, 1998, Donaldson tried to borrow some money from his friend, Sharrett Gardner, to pay off a gambling debt. Gardner did not loan Donaldson the money, and Donaldson became angry.

The next day, Gardner was driving by an auto parts store and saw Donaldson’s car in the parking lot. Gardner stopped his car and went into the store to see Donaldson. When Gardner could not find Donaldson in the store, he went to his own mother’s house nearby. Inside the house, Gardner found Donaldson and a person Gardner did not know.

Gardner asked Donaldson why he was in his mother’s home. The two men began arguing, and Gardner started to leave the house. Donaldson then shot at Gardner and hit him. Gardner ran to a grocery store where he passed out. An investigator from the sheriff’s department testified that Donaldson fired three shots at Gardner.

Donaldson’s defense was self-defense. He claimed that he went to Gardner’s house to buy drugs; that, the drug deal went sour; and that Gardner then threatened to kill him. According to Donaldson, he and Gardner wrestled, and he shot Gardner during this struggle.

1. In his first enumeration of error, Donaldson argues that the evidence was insufficient to convict because it was contradictory and supported his defense of self-defense. We disagree and find that a rational trier of fact could find from the evidence adduced at trial proof of his guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Donaldson next argues that the trial court erred in restricting his cross-examination of Gardner. Specifically, Donaldson claims that the court’s decision to prevent his counsel from cross-examining Gardner about a prior aggravated assault charge, which involved allegations that Gardner shot his own brother, was error. Donaldson contended that this charge strengthened his self-defense theory by demonstrating that his fear of being killed by Gardner was well placed.

The transcript reflects that defense counsel questioned Gardner about a pending felony drug possession charge and the prosecutor objected. The court overruled the objection, and defense counsel then asked Gardner if he was receiving favorable treatment from the district attorney’s office for “a case they’re prosecuting you for right now” in exchange for his testimony.

After this exchange the jury left the courtroom, and defense counsel argued that evidence of the aggravated assault charge was admissible because it was helpful to Donaldson’s defense. Defense counsel stated that he was not sure whether the aggravated assault charge was pending against Gardner — that the status of the charge was “in limbo.” The court sustained the prosecutor’s objection and did not allow questioning about this charge. In so doing, the court determined that defense counsel’s earlier question about possible favorable treatment on the drug charges pending against Gardner was broad enough to encompass any pending assault charges against Gardner.

We find no error. Given defense counsel’s confessed uncertainty regarding the status of the aggravated assault charge, it is unclear how defense counsel wished to question Gardner regarding any possible favorable treatment he might receive for his testimony. In any case, we agree with the trial court that defense counsel’s question as to whether Gardner was receiving any favorable treatment on “pending charges” was broad enough to encompass any treatment on the charge on aggravated assault. The extent of cross-examination on this issue was in the trial court’s discretion, and Donaldson’s argument that he was denied his right to cross-examine Gardner regarding possible pending charges lacks merit. Compare Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982). Moreover, even assuming that the court’s limitation of Donaldson’s questioning regarding pending charges was erroneous, in light of the overall strength of the prosecution’s case, we conclude that any error was harmless beyond a reasonable doubt. See Kinsman v. State, 259 Ga. 89, 91-92 (7) (b) (376 SE2d 845) (1989).

Donaldson also argues that he should have been allowed to question Gardner about the aggravated assault charge because it strengthened Donaldson’s defense that he shot Gardner in self-defense. This argument also lacks merit because there is nothing in the record to indicate that Donaldson provided timely notice of his intent to present this evidence in accordance with Uniform Superior Court Rules 31.1 and 31.6 (B). Because Donaldson failed to provide the requisite notice, the trial court did not abuse its discretion in excluding the testimony. See Barnes v. State, 269 Ga. 345, 353 (14) (496 SE2d 674) (1998); Young v. State, 228 Ga. App. 233 (491 SE2d 404) (1997).

Decided November 3, 1999.

Ellis R. Garnett, for appellant.

Daniel J. Craig, District Attorney, for appellee.

Judgment affirmed.

Smith and Miller, JJ, concur.


text:
    A99A1917.
    GEORGIA RECEIVABLES, INC. v. MURRAY.
    (524 SE2d 518)
   McMurray, Presiding Judge.

Georgia Receivables (plaintiff) brought a breach of contract action against Dorothy Murray (defendant) in the Superior Court of Richmond County. After defendant failed to respond to plaintiff’s complaint, the trial court entered a default judgment on December 10, 1998, during the November 1998 term of the Superior Court of Richmond County. On February 12, 1999, the trial court entered an order setting aside this default judgment, finding that the contract which is the subject of plaintiff’s complaint had been cancelled. The trial court later entered a final judgment dismissing plaintiff’s complaint, and this appeal followed. Held:

Plaintiff contends the trial court erred in setting aside the default judgment based on the merits of its claim against defendant. We agree.

A trial court may exercise discretion in setting aside a default judgment within the same term of court. Piggly Wiggly Southern v. McCook, 216 Ga. App. 335, 337 (1) (454 SE2d 203). But after expiration of the term of court in which a default judgment is entered, the trial court’s discretion in setting aside the default judgment is limited to the criteria set forth in OCGA § 9-11-60 (d). See Mitchell v. Speering, 239 Ga. App. 472, 473 (521 SE2d 419). This Code subsection provides:

Decided November 3, 1999.

Frederick J. Hanna & Associates, Elizabeth C. Whealler, for appellant.

Nimmons & Malchow, Ken M. Nimmons, for appellee.

A motion to set aside may be brought to set aside a judgment based upon: (1) [l]ack of jurisdiction over the person or the subject matter; (2) [flraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) [a] nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.

OCGA § 9-11-60 (d).

The record shows that the trial court did not consider these criteria in the case sub judice. It thus follows that, since the order setting aside the default judgment was entered outside the term of court in which the judgment was entered, the trial court erred in granting defendant’s motion to set aside the default judgment. Mitchell v. Speering, 239 Ga. App. at 473, supra. Compare Wright v. Archer, 210 Ga. App. 607 (436 SE2d 775).

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.

       OCGA § 15-6-19 provides that the regular terms of the superior courts shall continue until the commencement of the next regular court term. The November term of the Richmond County Superior Court began on November 9, 1998, and adjourned on January 11, 1999. OCGA § 15-6-3 (5) (C).