text:
    76547.
    HALL v. THE STATE.
    (373 SE2d 32)
   McMurray, Presiding Judge.

Defendant was convicted of violation of the Georgia Controlled Substances Act (possession of cocaine). The evidence at a jury trial, construed most favorably to support the jury’s verdict, was as follows:

At approximately 2:30 or 3:00 in the morning on March 8, 1986, Investigator James A. Jordan of the Brunswick Police Department responded to a tip that “Marianne Whitfield, a/k/a Marianne Bell. . would be in a two-door Ford automobile at the Oleander Motel and that there would be “a quantity of cocaine . . .” in the car. Investigator Jordan spotted “[t]he vehicle . . . coming out of the front part of the Oleander Motel [and] observed in the vehicle, the driver to be Marianne Whitfield, a/k/a Marianne Bell.” The investigator followed the suspect vehicle in his “unmarked” patrol car down several streets and through a restaurant parking lot, noticed that the vehicle was “going at a slow rate of speed . . .” and observed a passenger in the vehicle “sticking his head . . . continuously out the window.” The investigator “fell in behind the vehicle . . . put [his] blue light on the dash and ended up stopping the vehicle. . . .”

Investigator Jordan approached the vehicle from the driver’s side, identified himself and displayed his badge. The passenger “door came open quickly, as if the passenger . . . was fixing to run . . . and, at that moment, Investigator Jordan recognized that the passenger was defendant. The investigator ordered defendant to remain in the vehicle and then observed defendant pour white powder “out of a clear plastic bag.” The powder fell onto defendant and onto the seat and floorboard of the car. Investigator Jordan then arrested defendant, took him into police custody and advised him of his Miranda rights.

While in custody, defendant “stated that he just bought a twenty cent piece [$20 worth] of cocaine and that he . . . had the cocaine out and was taking a bump off the cocaine (imbibing the drug by inhalation) when he observed [Investigator Jordan] behind him.” Defendant further stated “that he got nervous because [Investigator Jordan] was behind him and dropped the cocaine, spilling it down the front of his shirt[,] in the seat and on the floor [of the car].” Investigator Jordan collected some of the white powder from the automobile where defendant was a passenger and later discovered that it tested positive for the presence of cocaine. From this and other evidence adduced at trial, defendant was found guilty. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant’s appellate counsel, different from trial counsel, asserts the general grounds in four enumerations of error, arguing that the evidence was insufficient to support the jury’s verdict. This argument is without merit. Defendant’s admission, along with other evidence showing that cocaine was on the seat and floorboard on the passenger side of the automobile in which defendant was a passenger, was more than sufficient to authorize a rational trier of fact to find that defendant was guilty of possession of cocaine beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided September 8, 1988

James Hall, pro se.

Glenn Thomas, Jr., District Attorney, Richard H. Taylor, Assistant District Attorney, for appellee.

2. Next, defendant’s appellate counsel assigns eight enumerations of error which are asserted to be “at the specific instance and request of [defendant], acting pro se, and requesting same without benefit of any consultation with [his attorney].” Defendant has submitted correspondence, pro se, supporting some of the alleged errors. In an abundance of caution, we have considered these additional enumerations of error and find them to be without merit. See Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) and Veit v. State, 182 Ga. App. 753 (357 SE2d 113).

3. In view of defendant’s pro se contention that he was denied effective assistance of counsel, we remand this case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. As this concludes the present appeal, in order to prompt an appellate review of some future order entered by the trial court, a new notice of appeal must be filed.

Judgment affirmed and case remanded for hearing pursuant to Division 3.

Pope and Benham, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Chief Judge. Beasley, Judge,

license: Public Domain

text:
    76548.
    HOME OWNERS WARRANTY CORPORATION v. PINEWOOD BUILDERS, INC.
    (373 SE2d 34)
   Birdsong, Chief Judge.

Appellant Home Owners Warranty Corporation, the plaintiff below, brings this appeal from the trial court’s dismissal, with prejudice, of its complaint following a failure of counsel to appear at the call of the case for trial.

Home Owners filed this complaint against Pinewood Builders, following a disagreement regarding an alleged failure of Pinewood to comply with its contract with Home Owners. Appellee failed to file a timely answer, but filed within the statutory period to open default as a matter of right. The record shows the Clerk of the State Court of DeKalb County sent a Notice of Trial to both parties that this action was set for trial on October 7, 1987. On September 29, 1987, appellee filed a demand for jury trial, and on November 12, 1987, the Clerk of the State Court sent notices to both parties that: “You are required to appear at 9:30 a.m. on the 14th day of December, 1987, in Room 600, 6th Floor, DeKalb County Courthouse.” The next record entry shows an order, dated December 14, 1987, that “[t]he above-styled civil action having come on the regularly scheduled jury trial calendar and with the Defendant announcing ready for trial and with no response being made on behalf of the Plaintiff, it is HEREBY ORDERED that this case be dismissed with prejudice for a lack of prosecution.” Appellant brings this appeal from that order. Held:

1. Appellant argues that the trial court “apparently” invoked “the old three minute rule” which was repealed by the Uniform State Court Rules, and the trial court’s “dismissal for want of prosecution is illegal. . . .” Appellant is correct that the adoption of the Uniform Superior (253 Ga. 801) and State (253 Ga. 887) Court Rules repealed the “three minute rule.” Jones v. Jones, 256 Ga. 185 (345 SE2d 605). The Uniform State Court Rules are the same as the Uniform Superior Court Rules, except as noted. 253 Ga. 887. Rule 8.4 of the Uniform Superior Court Rules, which applies to the State Court, directs “counsel in the first 5 actions on the published trial calendar shall appear ready for trial on the date specified unless otherwise directed by the assigned judge.” (Emphasis supplied.) 253 Ga. 822. The notice for trial in the instant case was an individual notice to both parties to appear “at 9:30 a.m. on the 14th day of December, 1987, in Room 600, 6th Floor, DeKalb County Courthouse” for trial of this specific action. Such “notice” can only be interpreted to mean that the styled action has been assigned to a designated judge, and will be heard in his designated courtroom, on the specified day and at the specified hour. Although the notice was signed by the clerk, a clerk would not be authorized to assign cases to a particular judge, to be tried on a specified date and hour, without prior authorization from a judge. Such routine, administrative notice is from the court, and is in substantial compliance with Rule 8.4. Hence, this was not the typical calendar list, but was an individual notice to a specific party who was “otherwise directed by the assigned judge” to appear for trial at that time and place. Rule 14 (253 Ga. at 825-826) of the Uniform Superior Court Rules, which applies to the State Court, provides in part: “On its own motion or upon motion of the opposite party, the court may dismiss without prejudice any civil action, or where appropriate, any pleading filed on behalf of any party upon the failure to properly respond to the call of the action for trial or other proceeding.” (Emphasis supplied.) Here, the appellant failed to properly respond to the call of the action for trial and dismissal, without prejudice, was authorized.

2. Appellant contends that even if dismissal was authorized, the trial court’s dismissal “with prejudice” was “illegal.” We agree. An analogy is the trial court’s authority to impose sanctions for counsel’s abuse of discovery procedures. See OCGA § 9-11-37. Dismissal “with prejudice” for abuse of discovery is an extremely harsh sanction.

Swindell v. Swindell, 233 Ga. 854, 856 (213 SE2d 697). The court has held that “the ‘drastic sanctions of dismissal and default cannot be invoked . . . except in the most flagrant cases — where the failure is wilful, in bad faith or in conscious disregard of an order.’ [Cits.]” Hiney v. Bennaman, 177 Ga. App. 753, 755 (341 SE2d 284); accord Smith v. Nat. Bank of Ga., 182 Ga. App. 55, 57 (354 SE2d 678); Brunswick Mfg. Co. v. Sizemore, 176 Ga. App. 838, 839 (338 SE2d 288).

The Uniform Superior Court Rules, Rule 14, authorized only dismissal “without prejudice” — “upon the failure to properly respond to the call of the action for trial. . . .” This was what happened in the instant case. There is no evidence of a wilful failure to respond to the call of the case, or any indicia of conscious indifference, or bad faith. Hence, we find the extreme sanction of dismissal “with prejudice” was unauthorized.

Judgment affirmed in part and reversed in part.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I fully concur in Division 2 but concur in Division 1 upon a different basis than is set forth therein.

USCR 8.4 separates the published trial calendar cases into two categories, insofar as readiness and appearance for trial are concerned. The first sentence relates to the first 5 cases, regarding which parties and counsel must appear (and be ready) on the published date unless the assigned judge directs otherwise. Plaintiff’s case was 25th on the published calendar so was not in this category. Moreover, the mailed notice was from the court clerk and not from the assigned judge. It was sent when the calendar was published and operated as a personalized back-up of the published calendar but is not required by the rule.

The second sentence relates to cases other than the first 5 and so applies to plaintiff’s case. The parties and counsel in them are to be present and ready also, unless either of the arrangements described in subsections (A) and (B) are made by counsel with the calendar clerk. (The statement in Fulton v. State of Ga., 183 Ga. App. 570, 572 (359 SE2d 726) (1987) that the rule “requires the presence only of the first five cases on the published calendar” is misleading if taken out of context.)

There is no indication in the record that either of the two alternatives to ready appearance was followed. Consequently, plaintiff and its counsel were obliged to appear. Being ready but absent without leave was insufficient, and dismissal pursuant to USCR 14 was authorized.

Decided September 8, 1988.

Whitner K. Livingston, for appellant.

G. Phillip Bramlett, W. Alan Jordan, for appellee.


author: Birdsong, Chief Judge.

text:
    76603.
    COLE v. NEW HAMPSHIRE INSURANCE COMPANY.
    (373 SE2d 36)
   Birdsong, Chief Judge.

This is an action brought by an insurer to have it declared whether its insured Barbara Cole is entitled under her “no-fault” auto insurance to recover for injuries sustained outside the car at a gasoline station.

It is agreed, and the trial court found, that Ms. Cole had pumped gas in her car, entered the station and paid the attendant, and was returning to her car, walking around the right front of the car when she slipped and fell, striking her left arm on the right front fender and her left knee on the pavement and breaking her kneecap.

The trial court rendered summary judgment for the plaintiff insurer and denied summary judgment to the defendant Cole. On appeal, Ms. Cole contends she is entitled to coverage pursuant to OCGA §§ 33-34-7 and 33-34-2 (1) (5) (8) and (9) concerning payment of no-fault benefits, and under coverage of her insurance policy, which closely tracks the language of the statutes. Held:

OCGA § 33-34-7 provides: “Payment of no-fault benefits, (a) The insurer of a motor vehicle . . . shall pay basic no-fault benefits without regard to fault for economic loss resulting from: ... (1) Accidental bodily injury sustained ... by the insured . . . while occupying any motor vehicle or while a pedestrian as the result of being struck by a motor vehicle. . . .” (Emphasis supplied.)

OCGA § 33-34-2 as pertinent to this case defines the qualifying terms as follows: “(1) ‘Accidental bodily injury’ means bodily injury . . . arising out of the operation, maintenance, or use of a motor vehicle. ... (8) ‘Occupying’ means to be in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle. ... (9) ‘Operation, maintenance, or use of a motor vehicle’ means operation, maintenance, or use of a motor vehicle as a vehicle. . . . (11) ‘Pedestrian’ means any person not occupying a motor vehicle. ...” (Emphasis supplied.)

The appellant Cole contends she may recover for these injuries, as they are accidental bodily injury “arising out of the operation, maintenance or use of a motor vehicle” (§ 33-34-2 (1)), “while occupying [the] motor vehicle or while a pedestrian as the result of being struck by a motor vehicle.” (Emphasis supplied.) OCGA § 33-34-7 (a) (1). She argues that if she was not a “pedestrian” who was “struck” by the vehicle, then she was “occupying” the vehicle by being “upon” the motor vehicle, or, especially, by being “engaged in the immediate act of entering into or alighting” from it. OCGA- § 33-34-2 (8).

In particular, she contends the word “struck” in § 33-34-7 (a) (1) denotes merely a movement or force resulting in a physical impact (see Johnson v. Nat. Union Fire Ins. Co., 177 Ga. App. 204 (338 SE2d 687)); or, she contends, her injury arose out of the “maintenance or use of a motor vehicle as a vehicle,” (emphasis supplied) (§ 33-34-2 (9)), according to the persuasion of two Minnesota cases, Marklund v. Farm Bureau Mut. Ins. Co., 391 NW2d 65; and Barry v. Ill. Farmers Ins. Co., 386 NW2d 299. In the former case, Marklund, the insured slipped and fell while he was engaged in putting gasoline in his car (as an integral process fundamental to the maintenance of a motor vehicle), and there was not even any physical impact with the car as there was in this case.

There are a number of Georgia cases construing these code sections and the coverage of no-fault insurance in particular circumstances. See Kelley v. Integon Indem. Corp., 253 Ga. 269 (320 SE2d 526) which surveys several cases in response to a certified question by the federal court of appeals. Kelley expresses a few general principles, but the parties have cited Kelley and many of the cases cited in it as controlling this appeal. However, when the facts are so different, as they are, the cases cannot control as a matter of law. In Kelley, the claimant was electrocuted when the truck’s crane came into contact with a power line, as he stood in a pit and helped position a drilling rig attached to the truck. In Clinton v. Nat. Indem. Co., 153 Ga. App. 491 (265 SE2d 841), a fireman using a firehose attached to a firetruck was knocked down when the firehose jerked.

In Parker v. Atlanta Cas. Co., 157 Ga. App. 539 (278 SE2d 119) an auto repairman slipped on grease in the repair shop as he alighted from a car after driving it in from an outside lot. Parker involved the “actual operation of a motor vehicle as a vehicle” (former Ga. Code Ann. § 56-3402 (b) (h); cf. OCGA § 33-34-2 (9) (a)); he sustained injury arising out of the maintenance of the vehicle as a vehicle (§ 33-34-2 (1)), and he was occupying the vehicle by being in the immediate act of alighting from it. OCGA § 33-34-2 (8). Nevertheless, it was held Parker was not entitled to no-fault coverage because his fall was an “unconnected event,” that there was no “zone of connection” between his fall and “what [the car] did.” This finding goes beyond the terms of the statutes. The federal court found it “conflicting,” but Kelley distinguished it because it dealt with the “repair and service” exclusion.

In Georgia Farm &c. Ins. Co. v. Nelson, 153 Ga. App. 623 (266 SE2d 299), the deceased was found dead after he had apparently attempted to jack up a lumber truck. The tractor and trailer were disconnected; it appeared a front dollie on the trailer collapsed, and the load of lumber fell on him. That case and another, Jones v. Transamerica Ins. Co., 154 Ga. App. 408 (268 SE2d 444), involving a death by carbon monoxide of one found outside the car but in the garage where it had been parked, were disapproved by the Supreme Court in Kelley because they were decided without reference to the “occupancy” requirement of § 33-34-7 (a) (1) (2).

In Leverette v. Aetna Cas. &c. Co., 157 Ga. App. 175 (276 SE2d 859), the claimant fell while he was standing on a truck, using it as a ladder of sorts to pick plums from a tree. In Jones v. Continental Ins. Co., 169 Ga. App. 153 (312 SE2d 173), the claimant went back to her car so as to unload some things she had forgotten, after the car had been parked for 15 minutes; as she unloaded the items, she stepped back into a hole in the ground. In Cole v. Allstate Ins. Co., 173 Ga. App. 454 (326 SE2d 817), two persons were killed when a van left the highway and crashed into them where they stood beside the road, watching a third person who was attempting to repair their insured pick-up truck.

Although all these cases are governed by the same statutes, the circumstances in all these cases are too different to analogize them to the distinct facts in this case. However, the Supreme Court in Kelley at p. 274, made one thing clear: each case must be analyzed in an orderly fashion, first on the question of whether it presents an “insured event,” per OCGA § 33-34-7 (a). The claimant must have sustained accidental bodily injury as a “pedestrian . . . struck by a motor vehicle” or “while occupying [a] motor vehicle.” (Emphasis supplied.) OCGA § 33-34-7 (a) (1). It must then be determined whether the injury was one arising “out of the operation, maintenance, or use” of a motor vehicle as a motor vehicle (OCGA § 33-34-2 (1) (9)). If either analysis fails, the claimant has not experienced an “insured event.” Kelley, supra.

In this case, as to whether this was an insured event, the appellant was not a “pedestrian . . . struck by” a motor vehicle. These statutory words are clear and not subject to dramatic and artful meaning. If, as the appellant maintains, “struck” denotes “a movement or force resulting in physical impact” (Johnson, supra), the requirement of being “struck by” would mean the movement or force would have to be that of the vehicle. In this case, the movement or force was that of Ms. Cole’s body, i.e., her elbow. It must be concluded she was not a “pedestrian . . . struck by” the vehicle.

As for whether she “occupied” the vehicle (§ 33-34-2 (8)), she was neither “in” it, nor “upon” it, nor was she engaged in the “immediate” act of entering into or alighting from it. Future cases or clearer statutory language may decide exactly what it means to be “upon” a vehicle, but without placing on the term an overly dramatic and artificial meaning, it can plainly be said she was not “upon” it merely because she slipped and fell, causing her elbow to strike it.

Decided September 8, 1988.

Clifton S. Fuller, Jr., for appellant.

Edgar S. Mangiafico, Jr., for appellee.

It is true that if she had been “occupying” the vehicle (§ 33-34-7 (a) (1)), the analysis might proceed to a conclusion that she suffered accidental bodily injury arising out of the “maintenance” of the vehicle (§ 33-34-2 (1)), as the Minnesota court concluded; but since she was not “occupying” the vehicle, within the statutory definition (§ 33-34-2 (8)), her injury, whatever it arose out of, was not an “insured event.” Therefore, the analysis stops when it is concluded that she was neither a “pedestrian . . . struck by” a vehicle, nor was she “occupying” a vehicle pursuant to OCGA § 33-34-7; that is, she did not suffer an insured event.

The trial court did not err in granting summary judgment to the appellee insurer and denying summary judgment to the appellant on the issue of no-fault coverage.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    76741.
    GLOVER v. THE STATE.
    (373 SE2d 39)
   Pope, Judge.

Appellant Winfred Glover was convicted of trafficking in cocaine in violation of the Georgia Controlled Substances Act. On appeal, he asserts that the trial court abused its discretion in denying his motion for severance. We disagree and affirm the judgment of the trial court.

On January 5, 1987, two agents of the Marietta-Cobb-Smyrna narcotics squad went to an apartment in Cobb County to purchase a kilogram of cocaine from Yvette Jones and Rufus Hambrick (co-defendants who pled guilty). The facts, as developed by the testimony of the agents, are as follows: Glover and co-defendant Alvin Haber-sham were in the parking lot at the time of the attempted sale. Jones told an agent, “There’s the man [Glover]; he’s going to get the dope.” Glover removed a brown bag from Habersham’s Chevy S10 Blazer. The brown bag contained 994.4 grams of cocaine.

At trial, counsel for both defendants repeatedly moved for severance. Glover’s counsel entered a continuing motion for severance when, during cross-examination of a State’s witness, Habersham’s counsel asked many questions suggesting that Glover might have had the cocaine before he went to Habersham’s Blazer. Glover’s counsel argued that Habersham’s counsel was improperly acting as a second prosecutor. The trial court permitted the line of questioning to continue in deference to Habersham’s right to a thorough cross-examination.

OCGA § 17-8-4 provides in pertinent part, “When indicted for ... a felony less than capital. . . defendants may be tried jointly or separately in the discretion of the trial court.” As a general matter, courts should grant severance “whenever it appears ‘necessary to achieve a fair determination of the guilt or innocence of a defendant.’ ABA Standards, § 2.3 (b).” Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). Factors to consider are: “1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other’s rights? [Cit.]” Id. If these factors are present, the movant must show harm or prejudice from the failure to sever. Satterfield v. State, 256 Ga. 593 (3) (351 SE2d 625) (1987); Kennedy v. State, 253 Ga. 132 (2) (317 SE2d 822) (1984); Cain, supra; Johnson v. State, 159 Ga. App. 819 (1) (285 SE2d 252) (1981).

The first two factors were clearly not present in this case; thus appellant asserted only that Habersham’s defense was antagonistic. Habersham’s defense was, in essence, that if any drug deal was planned, Habersham knew nothing about it. Habersham’s testimony did not in any way inculpate Glover, and might even be interpreted as exculpatory.

Nevertheless, appellant asserts that Habersham’s defense was antagonistic in that, during cross-examination of a State’s witness, Habersham’s counsel suggested that Glover was carrying cocaine. However, in context it is clear that the cross-examiner was suggesting that if there was any cocaine, then it did not necessarily come from Haber-sham’s Blazer. This did not rise to the level of antagonism required to violate the third factor. Liggins v. State, 239 Ga. 452 (1) (238 SE2d 34) (1977); Hill v. State, 166 Ga. App. 692 (4) (305 SE2d 432) (1983).

Even if we were to believe that the antagonism here was sufficient, Glover would have to show harm or prejudice. Kennedy, supra; Cain, supra. The only harm alleged in Glover’s brief is that Glover chose not to testify on his own behalf because he was afraid to face Habersham’s counsel on cross-examination. The United States Supreme Court has recognized that “an accused’s decision whether to testify ‘seldom turns on the resolution of one factor.’ [Cit.]” Luce v. United States, 469 U. S. 38, 42 (105 SC 460, 83 LE2d 443) (1984). In general a criminal defendant cannot assert harm from his own decision not to testify unless his decision is based on a violation of constitutional rights. Compare Luce, supra, with New Jersey v. Portash, 440 U. S. 450, 454-55 (99 SC 1292, 59 LE2d 501) (1979). Severance is not a constitutional right. Consequently no harm or prejudice has been shown by the defendant in this case.

Decided September 8, 1988.

Mark J. Radish, James J. McGinnis, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, W. Thomas Weathers III, Assistant District Attorneys, for appellee.

For these reasons, we find that the trial court did not abuse its discretion in denying defendant’s motion to sever.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge.

text:
    76776.
    WILLIAMS v. THE STATE.
    (373 SE2d 40)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of incest (by engaging in sexual intercourse with his daughter). Held'.

1. At trial defendant called as his witness, his ex-wife who was the mother of the daughter with whom he had engaged in sexual intercourse. During the course of direct examination of defendant’s ex-wife, defense counsel made a number of inquiries regarding the witness’ testimony at the preliminary hearing, culminating in the question: “Well, are you saying then that at the preliminary hearing you testified you felt like [defendant] was capable of murder?” At this juncture the State objected to the line of questioning on the ground that it was irrelevant to whether defendant committed the crime charged (incest) and that defense counsel was asking leading questions of his witness. The trial court sustained the State’s objection.

Predicated on this ruling, defendant enumerates as error the trial court’s having “sustained the State’s objection to [defendant] eliciting the same testimony from the alleged victim’s mother at the trial that she had given under cross-examination at the preliminary hearing, at which the State had not allowed the alleged victim to testify but had instead relied solely on the mother’s testimony.” The gist of defendant’s labyrinthine argument in support of this enumeration is that he was in effect denied his Sixth Amendment right to counsel at the committal hearing since its value as a discovery device was compromised when the State, through the use of OCGA § 24-3-16, established probable cause at the commitment hearing without presenting the daughter as a witness but rather through the hearsay testimony of the ex-wife, then presented the testimony of the daughter but not the ex-wife at trial. Defendant urges this court to formulate a remedial procedure for use when “the State takes advantage of OCGA [§] 24-3-16 ... at the preliminary hearing and uses the hearsay testimony of another witness to show probable cause, that the State be prevented from utilizing the alleged victim at trial without first allowing defendant to cross-examine her as he would have been able to do if she had testified at the preliminary hearing ...”

We find defendant’s enumeration of error without factual or legal predicate and thus meritless. First, OCGA § 24-3-16 is inapplicable to the case sub judice since the daughter was 14 years-of-age or over at all relevant times. Secondly, where OCGA § 24-3-16 is applicable it does not serve as an instrument by which a defendant may be prevented from cross-examining an alleged victim who is the source of a statement repeated by the hearsay testimony of another witness. The State’s objection was properly sustained.

2. Defendant also enumerates as error the trial court’s sustaining the State’s objection to defendant “introducing evidence of the alleged victim’s sexual conduct during the same period she claimed [defendant] had sex with her, since the alleged victim testified, in effect, that she could not have had sex with anyone else during that period and since the State introduced a blood test which showed the alleged, victim had a child conceived during that time period and that [defendant] could have been its father.” This enumeration arises from the trial court sustaining the State’s objection to defendant’s attempt to introduce evidence of sexual intercourse between the daughter and a third person. Defendant urges this court to formulate a rule “that evidence of prior sexual acts between the complainant and persons other than the accused is admissible in an incest prosecution to rebut the inference that the accused was responsible for a physical condition of the complainant, such as pregnancy, which is relied upon as corroborating evidence of the alleged incestuous act.” We do not reach the issue posed by defendant as the evidence excluded by the trial court’s ruling involved conduct in June of 1985 approximately 13 months prior to the birth of the daughter’s child and thus clearly beyond the period of gestation. Thus, the evidence at issue was not relevant to the parentage of the daughter’s child and no exception to the ruling in Estes v. State, 165 Ga. App. 453 (1) (301 SE2d 504), extending the rape shield statute to incest cases, would be appropriate in the case sub judice.

Judgment affirmed.

Pope and Benham, JJ., concur.

Decided September 8, 1988.

J. Steven Dugan, for appellant.

William J. Smith, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.


text:
    76844.
    WILLIAMS v. THE STATE.
    (373 SE2d 42)
   McMurray, Presiding Judge.

Defendant Williams was convicted of trafficking in cocaine, possession of a firearm by a convicted felon, carrying a pistol without a license, carrying a concealed weapon and possession of a firearm during the commission of a felony. He appeals as to the trafficking in cocaine conviction and sentence, urging reversal upon two grounds. First, he contends the search warrant (pursuant to which the evidence used against him was seized) was defective and the trial court erred in denying his motion to suppress. Second, he asserts the evidence was insufficient to support the trafficking in cocaine conviction because he was not proven to be in “actual possession” of 28 grams or more of cocaine. We consider these grounds seriatim. Held:

1. The search warrant. On November 1, 1986, at approximately 11:20 p.m., David Bullard, a detective with the Waycross Police Department, presented an application for the issuance of a search warrant to a magistrate. The application sought a warrant to search defendant’s person and the premises known as Steve’s Motel for the presence of “crack” cocaine. The application was sworn to and signed by Detective Bullard; the jurat was signed by the magistrate. With regard to probable cause, the application made reference to an “Affidavit tape, sworn to and heard 11:20 p.m., 11-1-86.”

Detective Bullard dictated the taped “affidavit” shortly before he appeared before the magistrate. The dictation was recorded on a cassette tape which Detective Bullard initialed and dated.

Detective Bullard presented the probable cause “affidavit” to the magistrate in tape-recorded form because he did not have time to have the tape transcribed. The detective swore that the facts set forth on the tape were true and correct.

The magistrate listened to the taped “affidavit” and determined that probable cause existed to search defendant and the described premises. Accordingly, he issued a search warrant which was executed by the police. Evidence supporting the charges brought against defendant was seized.

Several weeks later, the tape recording (which had been placed in an envelope and attached to the application seeking the warrant) was transcribed at the direction of the magistrate. The resulting affidavit was signed by Detective Bullard; a jurat was affixed thereto and signed by the magistrate. It was dated November 1, 1986.

Defendant does not challenge the warrant for lack of probable cause. His argument is a technical one. Relying upon OCGA § 17-5-21 (a), he contends the trial court erred in denying his motion to suppress because the search warrant was predicated upon a tape recording, not a written complaint. We disagree.

A written complaint was presented to the magistrate. It took the form of an application for a search warrant. The application was sworn to and signed by Detective Bullard in the presence of the magistrate. It incorporated by reference the oral statement recorded on the tape. In the magistrate’s presence, Detective Bullard swore that the facts set forth on the tape were true. The tape was preserved and subsequently transcribed at the magistrate’s direction. Given these facts, defendant cannot show that he has been prejudiced by the taped “affidavit.”

Affidavits for the issuance of a warrant should be in writing to provide a record from which reviewing courts can ascertain probable cause vel non. (Affidavits can, of course, be supplemented by sworn oral testimony given the magistrate. Simmons v. State, 233 Ga. 429, 431 (211 SE2d 725)). The taped “affidavit” in this case provides such a record.

Thus, the fact that the taped “affidavit” was not in written form when it was presented to the magistrate is of no real consequence. This is especially so since defendant does not challenge probable cause and does not suggest that Detective Bullard acted in bad faith by presenting a taped “affidavit” to the magistrate.

OCGA § 17-5-31 provides: “No search warrant shall be quashed or evidence suppressed because of technical irregularity not affecting the substantial rights of the accused.” The fact that the taped “affidavit” was not in written form when it was presented to the magistrate is a technical defect; defendant’s substantive rights are not affected. Accordingly, the trial court properly denied defendant’s motion to suppress evidence. State v. Penansky, 140 Ga. App. 405, 406 (231 SE2d 152).

2. The trafficking in cocaine conviction. Defendant was arrested in a motel room. The room was registered to one Melinda Williams. Defendant, Melinda Williams, and another individual were inside the room when the police entered. Three other individuals were just leaving at that time. Searching defendant, the police found a bag in his pocket. The bag contained pieces of “crack” cocaine which were wrapped individually in “tinfoil.” In a dresser drawer, five or six feet from defendant, the police located other pieces of “crack” cocaine. They, too, were wrapped individually in “tinfoil.”

Decided September 8, 1988.

Leon A. Wilson II, for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

Altogether, more than 28 grams of cocaine were seized from the room. The cocaine taken from defendant’s person, however, weighed less than 28 grams.

Defendant admitted that he owned all of the cocaine found in the motel room, having purchased it in Florida. He maintains, however, that the evidence does not demonstrate he was trafficking in cocaine since he was not shown to be in actual possession of the crack cocaine found in the dresser drawer. This contention does not withstand judicial scrutiny.

“The difference between actual and constructive possession ‘is most assuredly one of degree.’ Dalton v. State, 249 Ga. 720, 721 (2) (292 SE2d 834) (1982) . . . [T]he words actual and constructive possession ‘ “often so shade into one another that it is difficult to say where one ends and the other begins.” ’ Neal v. State, 130 Ga. App. 708, 711 (2) (204 SE2d 451) (1974).” Heath v. State, 186 Ga. App. 655, 656, 657 (368 SE2d 346).

Someone had actual possession of the cocaine in the dresser drawer. Heath v. State, 186 Ga. App. 655, 657, supra. And it is reasonable to conclude that defendant had actual possession of it since he purchased it, admitted owning it, and was arrested five or six feet from it.

The evidence demonstrated that defendant was in actual possession of 28 grams or more of cocaine. It was sufficient to enable any rational trier of fact to find defendant guilty of trafficking in cocaine beyond a reasonable doubt. Heath v. State, 186 Ga. App. 655, supra; Dukes v. State, 186 Ga. App. 815 (369 SE2d 259).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    77062.
    HARGROVE v. THE STATE.
    (373 SE2d 44)
   McMurray, Presiding Judge.

Defendant was convicted of violating the Georgia Controlled Substances Act by making three sales of cocaine. The evidence demonstrated that defendant sold cocaine to two undercover narcotics agents on three separate days, January 8, 1987, February 3, 1987, and February 17, 1987, and that defendant was paid $75, $100 and $140 for the cocaine sales. Defendant denied that he made the sales to the agents. Held:

1. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of selling cocaine on three separate occasions beyond a reasonable doubt. Williams v. State, 184 Ga. App. 68 (1) (360 SE2d 634). The first enumeration of error is without merit.

2. In his second enumeration of error, defendant contends the trial court erred in permitting the State to use its peremptory challenges in a discriminatory manner in contravention of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). We disagree. The prosecutor gave racially neutral reasons for exercising the State’s peremptory challenges. Giving “great deference” to the trial court’s conclusion that the State used its peremptory strikes in a non-discriminatory manner, we find no error. McCormick v. State, 184 Ga. 687 (362 SE2d 472). The second enumeration of error is meritless.

3. During voir dire, the prosecutor asked prospective jurors whether they knew certain individuals who were identified by name only. Defendant objected, pointing out that the named individuals had been arrested around the same time as defendant in a major drug sweeping operation which had made the news.

In his third enumeration of error, defendant contends the trial court erred in overruling his objection to the question propounded by the prosecutor. In this regard, he argues that defendant was prejudiced by the reference to known drug dealers during voir dire.

We cannot see how defendant was harmed by the prosecutor’s question. See in this connection Arnsdorff v. State, 152 Ga. App. 515, 516 (3) (263 SE2d 176) (in which that trial court questioned potential jurors as to any connection they might have with other defendants awaiting trial on cases arising from the same criminal activity and no ground for reversal was found). The trial court did not abuse its discretion by permitting the prosecutor to ask it.

4. The State introduced evidence demonstrating that during the week of February 20, 1987, an undercover agent visited defendant to determine whether he was willing to sell large quantities of drugs; that the agent told defendant that he was expecting a $1,500 tax refund; that he asked whether defendant could do him “any good”; that defendant told the agent that he could “handle any weight” the agent wanted; and that defendant said the agent should come back whenever he was ready. The trial court allowed this evidence to be introduced as a “similar transaction” over defendant’s objection that it impermissibly put his character in issue.

“OCGA § 24-9-20 (Code Ann. §§ 38-415; 38-416) prohibits admission of ‘evidence of general bad character or prior convictions . . . unless and until the defendant shall have put his character in issue.’ The recognized exceptions to this rule involve instances wherein evidence of a prior crime is held admissible because it is so closely connected with or similar to the crime charged that it tends to establish identity, motive, plan, scheme, bent of mind, or course of conduct. State v. Johnson, 246 Ga. 654 (272 SE2d 321) (1980); Larkins v. State, 230 Ga. 418 (197 SE2d 367) (1973); Moore v. State, 221 Ga. 636 (146 SE2d 895) (1966).” Santamaria v. State, 165 Ga. App. 288, 289 (299 SE2d 758).

Decided September 8, 1988.

C. Truitt Martin, Jr., for appellant.

Charles M. Ferguson, District Attorney, for appellee.

In Santamaria v. State, 165 Ga. App. 288, 289, supra, that defendant was charged with possession with intent to distribute marijuana. Over defendant’s objection, a prosecution witness was permitted to testify that several days after defendant was charged, he asked the witness “if he knew of anyone who might be interested in buying drugs.” This court reversed, holding that defendant’s remark “could hardly be characterized as part of a viable ‘crime’ or even a ‘transaction,’ either prior or subsequent.” Santamaria v. State, 165 Ga. App. 288, 289, supra at 290.

In the case sub judice, as in Santamaria v. State, 165 Ga. App. 288, 289, supra. the prosecution was permitted to introduce evidence of an alleged conversation concerning prospective drug activity. It was not alleged that an overt act was taken in furtherance of the conversation.

The conversation did not constitute evidence of a similar crime or transaction. Santamaria v. State, 165 Ga. App. 288, 289, supra. See also OCGA §§ 16-13-33 and 16-4-8. The sole apparent purpose of the evidence was to show that defendant was willing to be a “big-time” cocaine dealer. It was not admissible and the trial court erred in permitting the State to introduce evidence of the defendant’s alleged conversation with the undercover agent. Was the error harmful?

Reviewing the record, we are of the opinion that the evidence of defendant’s guilt was ample and that it is highly probable that the placing of defendant’s character in issue did not contribute to the jury’s verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). In the context of this case, therefore, the error was not harmful. Accordingly, a reversal is not required.

Judgment affirmed.

Pope and Benham, JJ., concur.


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

text:
    76390.
    BALDWIN COUNTY HOSPITAL AUTHORITY v. CONEY.
    (373 SE2d 252)
   Sognier, Judge.

Christine Coney brought an action against the Baldwin County Hospital Authority to recover damages arising out of her slip and fall on the premises of a hospital operated by the authority. The trial court denied the authority’s motion for summary judgment but certified its ruling for immediate review, and we granted this interlocutory appeal.

The record reveals that appellee had visited her son who was hospitalized at appellant’s facility. She exited the elevator on the main floor and walked a few feet toward the exit when she fell. Her complaint alleged that she slipped and fell “on a slick substance which had been left on the floor by employees of the hospital,” thereby breaking her leg. This was an allegation that appellant’s employees had themselves left the substance on the floor, and that consequently appellant, through its employees, had actual knowledge that there was water on the floor. See Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980).

1. In its motion for summary judgment, appellant proffered no evidence to pierce that allegation. It simply argued to the trial court that appellee had not proved that appellant had the knowledge alleged, and that therefore it was entitled to summary judgment. Appellant puts forth the same contention in this court, relying on this court’s decisions in Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986) and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987). We find this reliance to be misplaced. First, neither of those cases dealt with actual knowledge of a foreign substance on the floor. In Bright, we noted that “appellants concede that there is no evidence that appellee had actual knowledge of the ‘slick spot.’ ” Id. at 642. In Newman, it was “uncontroverted that appellee did not have actual knowledge of any foreign substance on the floor which may have caused appellant’s fall.” Id. at 828. In the case sub judice, in contrast, we are presented with an allegation of actual knowledge on the part of appellant-defendant, which allegation, although denied in the answer, must be rebutted and pierced upon motion for summary judgment.

Second, neither Bright nor Newman should be read as placing an initial burden on the plaintiff, as respondent on motion for summary judgment, of coming forward with evidence to support the allegations in the complaint. In Bright, the plaintiff’s allegation supporting recovery was that constructive knowledge should be imputed to the defendant because one of the store’s employees was in the area when she fell and could easily have seen the foreign substance on the floor. Bright holds not that the plaintiff had the burden of proving this, but that where “it is uncontroverted that the ‘slick spot’ could not be seen from that employee’s station” and “could not be detected merely by looking át the floor,” id. at 641, and no question of “reasonable inspection” had been raised, the defendant-movant had sufficiently disproved the alleged constructive knowledge to warrant summary judgment. In Newman, appellant alleged that the presence of restaurant employees in the vicinity at the time she fell was sufficient to impute constructive knowledge to defendant. Defendant, in moving for summary judgment, carried its burden by relying in part on plaintiff’s depositions, which this court found supported defendant’s contentions that no employees were in the vicinity. Thus, both cases held simply that the specific allegations of constructive knowledge had been sufficiently pierced to shift the burden to the plaintiff to come forward with evidence which could create an issue of fact. As each plaintiff did not come forward with such evidence, each defendant was properly granted summary judgment.

There is no general statement that can be made as to what every defendant in every slip and fall case must necessarily show in supporting a motion for summary judgment in order to “carry its burden” on such a motion. Although it is axiomatic that “[o]n a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant,” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973), exactly what facts the movant must rebut can only be determined by reference to what particular facts have been pleaded or otherwise shown by the record in each individual case. OCGA § 9-11-56 (c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show” no genuine issue of material fact. (Emphasis supplied.) Thus, when the defendant in a slip and fall case moves for summary judgment, the plaintiff has no initial burden of coming forward with any evidence. But where there is no evidence in the record supporting the plaintiff’s claim that defendant is liable, the plaintiff must at least have alleged facts entitling him or her to recovery. Where there is no allegation of a particular fact, and no evidence showing such a fact, the movant need not disprove that fact, in order to prevail.

Thus, it is only to the extent that actual knowledge or constructive knowledge is alleged as a fact entitling the plaintiff to recovery, that the defendant-movant miist refute that particular allegation by coming forward with evidence negating the plaintiff’s right to recover based on the alleged facts. If the plaintiff has alleged that the defendant had actual knowledge of a defect, as in the case at bar, the defendant-movant must proffer some evidence that it did not know of the defect, in order to proceed toward summary judgment. It is not necessary, however, for the defendant-movant to come forward with evidence negating facts which have not been alleged, or which may not be fairly drawn from the allegations in the pleadings. The “burden” is on the plaintiff to make allegations which will support recovery if true. The defendant must then “pierce” those allegations — i.e., show that the allegations are not true — as the next step in the summary judgment process.

We do not forget that the Georgia Civil Practice Act, OCGA § 9-11-1 et seq., authorizes notice pleading. Thus, even the most general or conclusory allegation of fact will suffice, and must be rebutted. Similarly, even though not alleged, if there are facts shown by the record (proffered by any party) which would support recovery, even if the plaintiff has not pled them, these facts must be rebutted by the defendant-movant in order to prevail upon motion for summary judgment. But we do not cast upon the defendant-movant the burden of rebutting or disproving facts or theories which are not alleged, may not be fairly drawn from the allegations which are made, nor shown by any evidence in the record, in order to prevail on motion for summary judgment. That was the reason for this court’s affirmance of the trial court’s grant of summary judgment in Bright and Newman, supra.

Applying the general principles discussed above to the case at bar, we find that appellee alleged in her complaint that appellant had actual knowledge of a slick substance on the floor upon which she fell. Thus, regardless of any other allegations, in order to proceed further upon motion for summary judgment, appellant was required to pierce that allegation by offering some proof of its lack of actual knowledge. Because it failed to do so, appellee was required to do nothing further, and consequently the trial court properly denied appellant’s motion for summary judgment.

2. We note that the confusion regarding burdens of proof on summary judgment in slip and fall cases has been compounded immeasurably by the practice of this court, to which this author is not immune, of citing cases standing for perfectly valid principles of law, but which lead to misperceptions regarding burdens because they are not similar procedurally to the case being decided. An example of this is our citation to Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353) (1985), a directed verdict case, in Newman, supra, which dealt with summary judgment, and to Lend Lease Transp. Co. v. McBride, 169 Ga. App. 902 (315 SE2d 449) (1984), a jury verdict case, in Bright, supra, a summary judgment decision. The list of such confusing cross-citation is long, and includes such decisions as Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641) (1987), and Rush v. Food Giant, 183 Ga. App. 388 (358 SE2d 919) (1987), which, although summary judgment cases themselves, also rely on Mitchell, supra; Food Giant v. Cooke, 186 Ga. App. 253 (366 SE2d 781) (1988), a summary judgment case, which cites Hughes v. Hosp. Auth. of Floyd County, 165 Ga. App. 530 (301 SE2d 695) (1983), a directed verdict case, in its discussion of what proof is required to establish constructive knowledge; and even the seminal case of Alterman Foods v. Ligon, supra, a summary judgment case which, in its analysis of what the plaintiff in a slip and fall action must show, cites numerous jury verdict cases, including Winn-Dixie Stores v. Hardy, 138 Ga. App. 342 (226 SE2d 142) (1976) and Sears, Roebuck & Co. v. Reid, 132 Ga. App. 136 (207 SE2d 532) (1974). This is not to imply that all these citations are inappropriate, but only that it has become obvious that at least some litigants have read into these citations an intention on this court’s part to change the burdens upon litigants in a summary judgment posture, a change which was not intended by this court. It behooves this court to acknowledge and correct this problem by carefully distinguishing the procedural aspects of the cases we cite if they are not entirely apt, although the cited case stands for a valid and appropriate proposition of law. See, e.g., Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988), where this was done in Division 1.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., and Pope, J., concur. Beasley, J., concurs in judgment only. Banke, P. J., Carley, and Benham, JJ., concur specially.

Banke, Presiding Judge,

concurring specially.

I agree that the defendant’s motion for summary judgment was properly denied. However, I am not persuaded by the majority’s efforts to redeem Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986), and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987). For the reasons expressed in Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523) (1988), I continue to believe those cases constitute a source of inconsistency and confusion in the law with respect to the summary adjudication of “slip-and-fall” claims involving constructive knowledge; and I would consequently overrule them.

“The basis of the proprietor’s liability is his superior knowledge, or his superior opportunity to discover a dangerous condition, as compared with the opportunity of his invitee.” Belk-Gallant Co. v. Cordell, 107 Ga. App. 785, 788 (131 SE2d 575) (1963). To allege that a proprietor had superior “constructive knowledge” of a condition is simply another way of alleging that he had a superior “opportunity to discover” it. Such an allegation may be supported by evidence tending to prove that the condition had existed on the premises long enough to have been detected through adherence to reasonable inspection procedures; conversely, such an allegation may be negated by evidence showing that reasonable inspection procedures were in fact followed on the occasion in question. See, e.g., Food Giant v. Cooke, 186 Ga. App. 253, 256 (366 SE2d 781) (1988); Winn-Dixie of Green-ville v. Ramey, 186 Ga. App. 257, 259 (366 SE2d 785) (1988).

Where the defendant-proprietor in a slip-and-fall case moves for summary judgment in the face of an allegation that he had superior constructive knowledge of the condition which caused the injury, he may be required to negate the “inadequate inspection” theory of liability regardless of whether it has been specifically alleged; for it is his burden as movant to “negate at least one essential element entitling plaintiff to recovery . . . under every theory fairly drawn from the pleadings and evidence (cits). . . .” Henderson v. Atlanta Transit System, 133 Ga. App. 354, 356 (210 SE2d 845) (1974). (Emphasis from original.) Yet, as I read this court’s decisions in Bright v. Food Giant and Newman v. Ruby Tuesday, Inc., they hold that an allegation of constructive knowledge may be summarily rejected in a slip- and-fall case based upon the mere absence from the record of evidence tending to support the inadequate inspection theory of liability, rather than upon the presence of evidence tending to negate it. See Shiver v. Singletary, supra, 186 Ga. App. at 748-749. Such a standard of review would normally be improper on motion for summary judgment in that it would shift the burden of proof with respect to a material issue from the movant to the respondent.

Only in the rare event that a claimant-respondent, after being furnished a full and fair opportunity to do so, has demonstrated a complete inability or unwillingness to support an essential element of his case with respect to which he will have the burden of proof at trial is there authority for granting summary judgment to a defendant-movant based on the mere absence from the record of evidence supporting the claim. See, e.g., Celotex Corp. v. Catrett, 477 U. S. 317 (106 SC 2548, 91 LE2d 265) (1986); Munna v. Lewis, 181 Ga. App. 860 (2) (354 SE2d 181) (1987); Martin v. Newman, 162 Ga. App. 725 (1), 726 (293 SE2d 18) (1982). While the plaintiff in the present case has yet to come forward with evidence supporting the allegations of her complaint, there has been no suggestion that she is unwilling or unable to do so, nor were such circumstances shown in Bright v. Food Giant or Newman v. Ruby Tuesday, Inc., supra.

I am authorized to state that Judge Benham joins in this special concurrence.

Carley, Judge,

concurring specially.

I concur with Presiding Judge Banke’s well reasoned special concurrence with the exception of the last paragraph thereof. I totally agree with the conclusion that Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986) and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987) should be overruled for the reasons so clearly set forth by Presiding Judge Banke. My problem with the last paragraph of the special concurrence is that this summary of the preceding excellent analysis conditions claimant’s responsibility to produce additional evidence upon his “being furnished a full and fair opportunity to do so. . . .” That phrase is really meaningless in the procedural context of a motion for summary judgment. The real triggering event is the production by the movant-defendant of sufficient evidence to negate an essential element of plaintiff’s cause of action. Then, and only then, will the burden shift to the claimant-respondent. See generally Food Giant v. Cooke, 186 Ga. App. 253 (366 SE2d 781) (1988); Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988).

Decided September 9, 1988.

C. Ashley Royal, Jerry A. Lumley, for appellant.

Richard B. Thornton, for appellee.


text:
    76575.
    BELLS FERRY LANDING, LTD. v. WIRTZ et al.
    (373 SE2d 50)
   Birdsong, Chief Judge.

The plaintiff appeals from the trial court’s grant of defendants’ motion to dismiss the complaint.

Plaintiff filed suit on December 20, 1986, for breach of lease and rent arrearage. Following their answer, defendants filed interrogatories on April 24,1987. The plaintiff did not answer the interrogatories within the time required by law. On June 22, defendants filed a motion to dismiss pursuant to authority of OCGA § 9-11-37 (d). Still, the plaintiff did not answer. Finally, on August 1, plaintiff filed answers to interrogatories and a reply to defendant’s motion to dismiss. The trial court granted defendants’ motion to dismiss, and the plaintiff complains the court abused its discretion in so doing, because there was no showing or finding of wilfulness of the plaintiff. Held:

The trial court did not abuse its discretion in this case. The judge, “[a]fter considering arguments of counsel, citations of authority and the entire record,” specifically found the plaintiff not only failed to respond to interrogatories in a timely fashion, but failed to seek an extension of time and failed even to contact defendants concerning the problem, or even to respond to the motion to dismiss. The trial court found “[t]here is no apparent justification for Plaintiff’s complete failure to respond to Defendants’ discovery request.”

Decided September 9, 1988.

Martin L. Fierman, for appellant.

Richard L. Powell, for appellees.

This finding is sufficient to authorize the trial court to dismiss the complaint. There is no requirement that the plaintiff display and the trial court find actual “wilfulness.” See Sta-Power Indus. v. Avant, 134 Ga. App. 952 (2) (216 SE2d 897). The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only “ ‘ “a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.” ’ ” Merrill Lynch &c. v. Echols, 138 Ga. App. 593, 594 (226 SE2d 742). “A conscious or intentional failure to act” is in fact “wilful.” Sta-Power Indus., supra. The trial court found the plaintiffs had no justification for failing to comply with the statutory provisions of the CPA; this means the court found the plaintiff’s failure was not accidental. We must presume the facts in the case support this finding (Merrill Lynch, supra), and that this exercise of its discretion was authorized. It must be so in this case, because no excuse has been suggested to us, either. Plaintiffs who file lawsuits and put defendants to the expense and trouble to answer, should at least prosecute their actions efficiently and diligently; the CPA authorizes dismissal in a case like this.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76629.
    ANFIELD v. THE STATE.
    (373 SE2d 51)
   Birdsong, Chief Judge.

Jimmy Anfield was indicted, tried, and convicted of violating the Georgia Controlled Substances Act, namely the sale of cocaine to an undercover agent.

The evidence disclosed that on February 26, 1982, a confidential informant took an undercover GBI agent to the home of appellant’s brother. After a brief conversation, appellant sold the agent $25 worth of a white powdery substance, which was later identified as cocaine. Immediately after leaving the premises, the agent recorded the transaction on a tape recorder and tagged the purchase as evidence. At trial, the agent positively identified the appellant as the one who sold the cocaine and accepted the money. The appellant, on the other hand, admits the agent was at his brother’s house, but denies the alleged transaction. Appellant contends that the agent and the informant brought the cocaine with them and at no time was there a sale or exchange of money. Although appellant admits to using cocaine (while the agent was present), he contends he has never used it prior to or subsequent to the night in question. Appellant appeals his conviction based on the general grounds. Held:

Decided September 9, 1988.

Phillips D. Hamilton, for appellant.

J. Lane Johnston, District Attorney, G. Barksdale Boyd, Assistant District Attorney, for appellee.

1. In asserting the general grounds, appellant contends that the verdict finding him guilty is contrary to the evidence, against the weight of the evidence, and contrary to law and the principles of justice and equity. “It is the function of the jury, not the appellate court, to determine the credibility of witnesses and weigh any conflicts in the evidence. The appellate court views the evidence in a light most favorable to the jury’s verdict after it has been rendered. [Cits.]” Laws v. State, 153 Ga. App. 166 (1) (264 SE2d 700). The evidence in this case is clearly sufficient to support the verdict, and we are satisfied that any rational trier of fact reasonably could have found proof of the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Therefore, we find no merit in this enumeration.

2. Appellant urges this court to address the trial court’s failure to require disclosure of the confidential informant’s identity. However, appellant failed to enumerate this as error. It is the basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal. Hibbert v. State, 146 Ga. App. 887 (3) (247 SE2d 554). And, enumerations of error cannot be enlarged by means of statements in the brief of counsel to include issues not made in the enumeration. Key v. State, 147 Ga. App. 800 (2) (250 SE2d 527).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76648.
    ADEL STEEL COMPANY, INC. et al. v. RICE.
    (373 SE2d 857)
   Birdsong, Chief Judge.

Upon review of the records and briefs in this interlocutory appeal, we have determined that genuine issues of fact remain in the case; therefore, this appeal of the trial court’s denial of summary judgment to appellants is dismissed as improvidently granted.

Appeal dismissed.

Banke, P. J., and Beasley, J., concur.

Decided September 9, 1988.

Thomas F. Allgood, Jr., for appellants.

William S. Sutton, Robert B. Phillips, for appellee.


text:
    76665.
    EVANS v. THE STATE.
    (373 SE2d 52)
   Birdsong, Chief Judge.

Appellant Charles Evans was tried by a jury for failing to drive on the right half of the roadway and using abusive and opprobrious language. Although the traffic violation was dismissed, the jury found appellant guilty of using abusive and opprobrious language in violation of OCGA § 16-11-39, for which he was fined $200. Held:

1. Appellant contends that he was justified in questioning the police officers since the traffic violation, which was the basis for his apprehension, was eventually dismissed. Furthermore, appellant claims the language used was neither opprobrious nor abusive.

OCGA § 16-11-39 provides: “A person who commits any of the following acts commits a misdemeanor: (1) Without provocation, uses to or of another, in his presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in his presence, naturally tend to provoke violent resentment, that is, words commonly called ‘fighting words’. . . .” Appellant argues that the officer admitted the language used was “very routine” and thus, tends to show there was no provocation of violent resentment. OCGA § 16-11-39 makes no distinction between the types of persons to whom the words are uttered. See Chaplinsky v. New Hampshire, 315 U. S. 568 (2) (62 SC 766, 86 LE 1031). The fact that a policeman admits to hearing obscene language during the performance of his duties is not a defense available to the defendant under this code section. Bolden v. State, 148 Ga. App. 315, 316 (2) (251 SE2d 165).

The jury is required only to determine that the words uttered would, as a matter of common knowledge, naturally tend to provoke a violent response. Bolden, supra. There was ample evidence to support the jury verdict. The officer testified that the appellant called him a “g. . . d. . . liar” and told all the officers at the scene to “f. . . o. . . .” The evidence adduced at trial was sufficient to enable a rational trier of fact to find the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). “The acquittal of the [defendant] on the charge of [failing to drive on the right half of the roadway] does not mean that the jury could not also find that the words uttered by the [defendant] were of the type which [would] tend to provoke a violent response.” Bolden, supra. Thus, we find no error.

Decided September 9, 1988.

James W. Friedewald, for appellant.

Patrick H. Head, Solicitor, Melodie H. Clayton, Amy A. Hembree, Assistant Solicitors, for appellee.

2. Appellant contends such language is protected by the First Amendment of the United States Constitution. In Chaplinsky, the U. S. Supreme Court stated, “It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance . . . tend to incite an immediate breach of the peace.” This conclusion is also supported by Cantwell v. Connecticut, 310 U. S. 296, 309-310 (60 SC 900, 84 LE 1213), in which the U. S. Supreme Court held: “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.” Thus, this argument warrants no merit.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76694.
    FICTUM v. THE STATE.
    (373 SE2d 54)
   Pope, Judge.

Charles W. Fictum, a resident of Indiana, was convicted of speeding and driving under the influence of alcohol. He appeals the denial of ,his motion for new trial because of (1) insufficiency of the evidence and (2) his absence during jury selection.

1. The testimony of the arresting officer was sufficient to support the guilty verdict. See Howell v. State, 179 Ga. App. 632 (1) (347 SE2d 358) (1986).

2. Nevertheless, we agree that Fictum is entitled to a new trial, because the trial court proceeded with jury selection in his absence even though he neither waived his right to be present nor voluntarily absented himself from the court.

The record reflects this case appeared on the trial calendar for January 27, 1987. Fictum traveled from his home in Indiana and arrived in Houston County the previous day. According to an affidavit sworn by Fictum’s counsel and submitted in support of the motion for new trial, prior to the call of the calendar on January 27, the trial judge informed counsel that the case “would not be tried” until the following day because other cases were already scheduled. Counsel accordingly informed his client that he would not be required to appear until the morning of January 28. However, after court commenced on the morning of January 27, the judge informed Fictum’s counsel the case would be tried after all due to the rescheduling of cases on the calendar. Despite the fact that counsel informed the judge he did not know if he could locate his client, jury selection nevertheless was conducted in defendant’s absence.

(a) A defendant may waive his right to be present during trial proceedings by voluntarily absenting himself from the court. But where, as here, defendant was unaware the proceedings had commenced, it cannot be said that he voluntarily chose to be absent. The record shows Fictum was informed by the court, through his attorney, that the trial would not commence on the date in question. We must assume, from the fact that Fictum had traveled from out of state to appear at trial, that he would have exercised his right to be present had he known jury selection would commence. In Pollard v. State, 175 Ga. App. 269 (333 SE2d 152) (1985), the defendant, though present in court on the morning he knew the trial was about to begin, could not be found when jury selection was about to commence. Under those circumstances, the court held defendant’s absence from the trial proceeding could not be considered a voluntary waiver of his right to be present. In this case, there is even greater reason to find that defendant had not waived his right to be present by voluntarily absenting himself from court since the record shows defendant was not aware the jury selection was about to commence. Those cases in which the defendant was found to have voluntarily waived the right to be present involve circumstances in which the defendant was present for the commencement of trial but failed to return to court during the progress of the trial. See Byrd v. Ricketts, 233 Ga. 779 (213 SE2d 610) (1975); Miller v. State, 122 Ga. App. 869 (1) (179 SE2d 265) (1970); Vicks v. State, 42 Ga. App. 451 (156 SE 729) (1931). Such is not the case here.

(b) Nevertheless, the State argues Fictum waived his right to be present by counsel’s failure to raise the objection in a timely manner. Counsel cannot waive the right of the accused to be present unless waiver is made in defendant’s presence, by defendant’s express authority or unless the defendant subsequently acquiesces to counsel’s waiver. Wilson v. State, 212 Ga. 73, 78 (90 SE2d 557) (1955). The right to be present at criminal proceedings is not waived by counsel’s failure to raise an objection. Tiller v. State, 96 Ga. 430 (1) (23 SE 825) (1895); Bonner v. State, 67 Ga. 510 (1881). In Bonner and Tiller, the trial court was found to have a duty to see that a defendant held prisoner was brought to the courtroom even if the defendant’s attorney failed to raise the objection. In our case, Fictum was not a prisoner and was free either to appear or to absent himself voluntarily from the proceeding. However, the record shows the judge was informed that Fictum had traveled from out of state to appear at trial but had left the courthouse relying upon the judge’s instruction that the case would not be tried on the day in question. Thus, the judge was on notice that Fictum wished to exercise his right to be present and yet no steps were taken to protect those rights. Under these circumstances, a new trial should be granted. See Duke v. State, 104 Ga. App. 494 (2) (122 SE2d 127) (1961).

Decided September 9, 1988.

Verna L. Smith, for appellant.

Carl A. Veline, Jr., Solicitor, Kelly R. Burke, Assistant Solicitor, for appellee.

(c) We also reject the State’s argument that the right to be present does not apply in this case. The right exists in misdemeanor cases as well as felonies. Lyons v. State, 7 Ga. App. 50 (2) (66 SE 149) (1909). It is guaranteed “at every stage of the proceedings . . . .” Tiller v. State, at 430-431. Certainly, this right extends to the selection of the jury when a defendant may challenge prospective jurors “simply on the basis of the sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.” (Punctuation and citation omitted.) United States v. Crutcher, 405 F2d 239, 244 (2d Cir. 1968), cert. den., 89 SC 1018 (1969).

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


text:
    76712.
    SATSUKI IMPORTS v. W. G. CARROLL & COMPANY, INC.
    (373 SE2d 56)
   Pope, Judge.

Satsuki Imports is an unincorporated company which imports foreign-made merchandise into the port of Savannah. W. G. Carroll & Company, Inc., is a customs broker and international freight forwarder. Carroll provided services to Satsuki for which it charged certain fees. According to the terms of the brokerage agreement under which the parties conducted business, the broker held a general lien against all property of its customer either in the broker’s possession or control, or property en route, for all charges or expenses incurred by the broker in connection with the shipments of the customer. Because Satsuki had failed to pay the fees charged on several previous shipments, Carroll refused to pay freight charges on behalf of Satsuki on a shipment which arrived in November 1986. Satsuki was unable to obtain possession of the goods until January 1987. Carroll brought a claim against Satsuki for unpaid fees. Satsuki counterclaimed for malicious interference with contractual rights. The trial court directed a verdict in favor of Carroll on both its claim for unpaid fees and on Satsuki’s counterclaim. Satsuki appeals.

1. In its fourth enumeration of error, Satsuki argues the trial court erred in admitting a blank copy of the invoice form on which Carroll billed Satsuki for its services. Printed on the back of the form was language granting Carroll a lien against its customer’s property for expenses incurred “in connection with any shipments of the customer . . . .” The evidence established an identical form was provided with each invoice from Carroll to its customer Satsuki over the course of their business dealings with each other. No evidence was presented that Satsuki objected to this term of the invoice. Thus, the evidence established a course of conduct between the parties by which Carroll was granted a lien on Satsuki’s property for any unpaid fees. The document was not improperly admitted into evidence.

2. Satsuki’s sole defense to the claim for unpaid fees was that Carroll had overcharged it for customs duties in the past. Nevertheless, Satsuki admitted that the invoices involved in Carroll’s claim were due but unpaid. Therefore, the court did not err in granting a directed verdict to Carroll on its complaint. Accordingly, we reject Satsuki’s third enumeration of error.

3. Because the evidence showed Carroll was granted a lien on Satsuki’s property for any unpaid fees, there is no evidence Carroll wrongfully retained Satsuki’s goods. To recover for malicious and wrongful interference with contractual rights, malicious intent to cause the result must be shown. Bodge v. Salesworld, Inc., 154 Ga. App. 65 (267 SE2d 505) (1980). No evidence of malicious intent having been presented, the court did not err in granting a directed verdict to Carroll on Satsuki’s counterclaim. Accordingly, we reject Satsuki’s first enumeration of error.

4. Carroll’s claim was brought against John Bricker, d/b/a Satsuki Imports. The evidence showed that Satsuki Imports was unincorporated and that John Bricker was the only principal of the company who resided in the United States. Therefore, the court did not err in denying Satsuki’s motion for directed verdict as to John Bricker. Satsuki’s second enumeration of error is also rejected.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided September 9, 1988.

Stanley E. Kreimer, Jr., for appellant.

Anthony M. Thomasson, Philip L. Wester, for appellee.


text:
    76728.
    LEMARR v. THE STATE.
    (373 SE2d 58)
   McMurray, Presiding Judge.

Defendant Lemarr brings an appeal pro se from his conviction of two counts of terroristic threats and two counts of obstruction of an officer. Held:

1. Defendant contends that his convictions and sentence violated the constitutional prohibitions against double jeopardy and cruel and unusual punishment because each of the four charges resulted from the same alleged criminal transaction. The evidence showed that two uniformed deputy sheriffs were dispatched to serve a warrant on defendant for criminal trespass. When they located defendant and attempted to serve the warrant, defendant snatched it from the hands of one deputy and started to run. The second deputy grabbed him and defendant hit him in the ribs and stomach with his fist and elbow, and ran from the house. The first deputy caught him and they both fell to the ground, whereupon defendant kicked this deputy in the ribs. It took both deputies to subdue and handcuff defendant and put him in their patrol car. While he was being arrested and transported to jail, defendant continuously cursed and threatened to kill both deputies and burn down their homes.

“A person commits the offense of a terroristic threat when he threatens to commit any crime of violence or to burn or damage property with the purpose of terrorizing another . . .” OCCA § 16-11-37 (a). The offense of obstructing a law enforcement officer is committed when one “knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer . . .” OCGA § 16-10-24 (b). “ ‘(T)he crime of terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.’ [Cit.]” McQueen v. State, 184 Ga. App. 630, 631 (2) (362 SE2d 436) (1987). Obstruction of an officer requires proof of different elements not included in terroristic threats, to wit, “there must be some evidence of forcible resistance or objection to the officer (not mere argument) in the performance of his duties. [Cit.]” Kelley v. State, 171 Ga. App. 222, 223 (319 SE2d 81) (1984). “The crimes are mutually independent and each is aimed at prohibiting specific conduct. [Cit.]” Echols v. State, 134 Ga. App. 216, 218 (4) (213 SE2d 907) (1975). This enumeration is without merit.

Decided September 9, 1988.

Gary Lemarr, pro se.

Richard A. Malone, District Attorney, W. Steven Askew, Assistant District Attorney, for appellee.

2. Next, defendant asserts that he “was denied effective assistance of counsel where counselor failed to subpoena a witness who’s [sic] testimony could have had a definite affect [sic] on the outcome of the verdict and the court proceedings.” Defendant contends that a “ ‘key witness’ for the defense, namely Timothy Tardiff, who had personal knowledge of pertinent facts and matters being brought before the court was ‘with-held’ from testifying thereto, where defense counselor ‘refused’ to subpoena the witness over the objection of the defendant.” In view of defendant’s pro se contention that he was denied effective assistance of counsel, we remand this case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. See Brooks v. State, 187 Ga. App. 92, 93 (2), 94 (369 SE2d 349). As this concludes the present appeal, in order to prompt an appellate review of some future order entered by the trial court, a new notice of appeal must be filed.

Judgment affirmed and case remanded for hearing pursuant to Division 2.

Pope and Benham, JJ., concur.


author: Sognier, Judge.

text:
    76759.
    BARRETT v. COMMERCIAL UNION INSURANCE COMPANY.
    (373 SE2d 59)
   Sognier, Judge.

Mark Barrett brought suit against Commercial Union Insurance Company seeking recovery of a theft loss claim made under his homeowner’s insurance policy. The trial court granted summary judgment in favor of Commercial Union, and Barrett appeals.

The record reveals that appellant submitted a claim under a homeowner’s policy issued by appellee for a theft loss that occurred on March 27, 1985. After several months of negotiations, appellee denied the claim in a letter dated February 25, 1986. In the letter, appellee also reminded appellant that “strict compliance with all policy provisions will be required” if he intended to file suit. The parties disagree as to precisely which policy originally was sent to appellant, but they do agree that the policy in effect at the time of the theft provided that all legal actions must be filed within one year after the loss, and that appellant filed this action on January 27, 1987.

Appellant contends the trial court erred by granting summary judgment to appellee on the basis that appellant failed to file suit within one year after the theft. Appellant argues that appellee waived the time limitation by continuing to negotiate the claim, thereby leading appellant to believe he would be paid without having to file suit. Although insurance policy provisions identical to the one sub judice requiring lawsuits to be filed within one year after the claim arises have been held to be firm and binding on numerous occasions, see Johnson v. Ga. Farm &c. Ins. Co., 141 Ga. App. 859, 860 (2) (234 SE2d 693) (1977), “ ‘ “[i]t is a universal rule that, where the insurer, by its acts in negotiating for a settlement, has led the policyholder to believe that he will be paid without suit, the insurer cannot take advantage of a provision in the policy which requires the action to be brought in a certain time. [Cit.] . . .” Further, it is not necessary that there be an actual promise to pay in order for the acts of the insurer to effect a waiver of the time limitation. If the facts show that negotiations for a settlement have led the insured to believe that the claim would be paid by the insurer, without a suit, this will constitute a waiver of time requirement. . . .’ [Cit.] However, mere negotiation for settlement, unsuccessfully accomplished, ‘is not that type of conduct designed to lull the claimant into a false sense of security so as to constitute an estoppel by conduct thus precluding an assertion of (the contractual time limitation) defense by the (insurer).’ [Cit.]” Georgia Farm &c. Ins. Co. v. Nolan, 180 Ga. App. 28, 29 (348 SE2d 554) (1986).

Appellant’s only evidence submitted in support of his contention that appellee waived the one-year time limitation is the statement of his attorney that after appellee denied the claim, appellant “continued to attempt to secure information to satisfy” appellee, and that “it was understood no suit needed to be filed, if the information could be obtained.” We find this evidence to be insufficient. First, the testimony of appellant’s counsel was presented in the form of an unsworn document, which “can not be regarded as an affidavit,” Redwine Bros. v. Jarrell, 14 Ga. App. 294 (2) (80 SE 728) (1914), and thus fails under OCGA § 9-11-56 (e) to create a question of fact. We note that appellee made no objection to the form of this statement in the trial court, and the trial court apparently considered the affidavit in ruling on appellee’s motion for summary judgment. However, even assuming objection to the sufficiency of the affidavit was waived, Chapman v. McClelland, 248 Ga. 725, 726 (2) (286 SE2d 290) (1982), the affidavit provides no evidence that appellee continued negotiations or made any offers after it denied the claim. Indeed, the record reveals no evidence of any contact between the parties after the February 1986 letter. Consequently, as appellee argues, the record is devoid of any evidence that the parties were engaged in settlement agreement or negotiating independent of the brief of appellant’s counsel. “[W]e may not rely on these assertions contained in the briefs of the parties but must look to the record ... to determine if there is harmful error. [Cits.]” Spicewood, Inc. v. Dykes Paving &c. Co., 185 Ga. App. 397, 398 (364 SE2d 298) (1987).

Decided September 9, 1988.

Clayton H. Hollingsworth, Jr., for appellant.

Richard L. Patton, for appellee.

Finally, even assuming the parties were engaged in settlement negotiations, there is no dispute that appellee never offered any amount in settlement, and unequivocally denied the claim before expiration of the one-year time limitation. Thus, there is no evidence “of any affirmative promise, statement or other act. . . to lead [appellant] into believing that [appellee] intended to enlarge on the limitation period contained in the contract . . . .” Johnson, supra at 861.

Viewing the evidence in the light most favorable to appellant, the respondent below, we conclude there is no dispute that appellant failed to file suit within the time required by the policy. Further, we find no evidence that the parties continued to negotiate after appellee denied the claim, and thus find no evidence that appellee either waived or led appellant to believe that it would waive the one-year time limitation. Accordingly, there was no error in the trial court’s grant of summary judgment to appellee. See Nolan, supra at 28-29.

Judgment affirmed.

Deen, P. J., and Corley, J., concur.


text:
    76803.
    McMillian v. Bank South, N.A.
    (373 SE2d 61)
   Pope, Judge.

This appeal follows the trial court’s grant of summary judgment to plaintiff Bank South in an action to obtain a deficiency judgment after the sale of repossessed collateral.

1. McMillian first contends Bank South failed to use reasonable care in preserving the value of the collateral, as required by OCGA § 11-9-207. As to this issue, Bank South’s business records show that at the time it took possession of the car it was in poor (inoperable) condition; this evidence was refuted only by McMillian’s unsupported and conclusory allegation that the car was not “junk” at the time of repossession. In addition, there is no evidence of record that the value of the car decreased while it was in Bank South’s possession. Thus, we find no merit to McMillian’s contention that Bank South failed to use reasonable care in preserving the value of the car.

We also find no merit to McMillian’s argument that Bank South had a duty to repair her automobile. As stated above, Bank South’s duty with respect to the collateral is set forth in OCGA § 11-9-207. That section requires only that a creditor use reasonable care to preserve the value of the collateral; it does not impose a duty to increase the value of the collateral. Finally, we note that any rights McMillian may have against the automobile dealership who sold her the car are irrelevant to this proceeding.

2. McMillian also challenges the commercial reasonableness of the sale. “OCGA § 11-9-504 (3) provides that disposition of the collateral ‘may be by public or private proceedings . . . but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable.’ ” Carter v. First Fed. &c. Assn., 179 Ga. App. 532, 536 (347 SE2d 264) (1986). Commercial reasonability is an appropriate subject of summary judgment when the secured creditor makes a prima facie showing that the sale was reasonable and the debtor fails to assert specific facts showing a genuine issue for trial. Slaughter v. Ford &c. Co., 164 Ga. App. 428 (296 SE2d 428) (1982).

In the case at bar, Bank South has shown, by way of affidavit, that the collateral was disposed of at a private auction by a recognized automobile auction company according to standard practice and procedure for sales of this kind. Bank South has disposed of collateral in this manner on a weekly basis for 11 years. “If a secured party disposes of the collateral in conformity with the usual commercial practices among dealers in that type of property, he has sold it in a commercially reasonable manner. OCGA § 11-9-507 (2), generally; Farmers Bank &c. v. Hubbard, 247 Ga. 431 (276 SE2d 622) (1981).” Carter at 536. Because McMillian has offered no evidence to the contrary, we agree the trial court correctly concluded that the method and manner of sale were commercially reasonable.

McMillian, however, also challenges the adequacy of the sale price. The creditor has the burden of proving that the “terms” of the sale were reasonable and this includes proof that the resale price was fair and reasonable. The value of the collateral is presumed to be the value of the debt; however, this presumption can be rebutted by evidence of fair and reasonable value. First Nat. Bank v. Rivercliff Hardware, 161 Ga. App. 259 (287 SE2d 701) (1982).

In the case at bar Bank South’s appraiser averred that the fair and reasonable value of the car was $500 at the time of repossession. This appraisal was supported by a report on the vehicle’s condition and by the Used Car Trade-In Guide, which provided that the value of similar cars in “rough” condition is $675. The car here was not only in “rough” condition but was completely inoperable.

Decided September 9, 1988.

Charles E. Price, for appellant.

Susan L. Howick, for appellee.

The car was sold for $350, $150 less than the value assigned by the Bank’s appraiser. Although the fact that a better price could have been obtained by sale at a different time or in a different manner will not itself make a sale commercially unreasonable, OCGA § 11-9-507 (2); Harrison v. Massey-Ferguson Credit Corp., 175 Ga. App. 752 (1) (334 SE2d 352) (1985), when the resale price is less than the fair and reasonable value, “the creditor is entitled to a deficiency judgment in the amount of the debt (plus or minus any payments or changes properly applicable to the disposition) less the fair and reasonable value of the collateral proved by the creditor.” Farmers Bank v. Hubbard, 247 Ga. 431, 437 (276 SE2d 622) (1981). (Emphasis supplied.) See also First Nat. Bank v. Rivercliff, supra at 260. In calculating the amount of the deficiency judgment in the present case, the trial court used the resale price rather than the fair and reasonable value. Consequently, the case must be remanded to the trial court and the judgment reduced by $150, the difference between the fair and reasonable value and the resale price.

3. Contrary to McMillian’s final enumeration, no genuine issues of fact preclude the grant of summary judgment in the case at bar.

Judgment affirmed and case remanded.

McMurray, P. J., and Benham, J., concur.