author: Carley, Judge.

text:
    76415.
    MacDONALD v. VASSELIN et al.
    (373 SE2d 221)
   Carley, Judge.

Appellant-plaintiff brought suit, seeking damages for the injuries she allegedly sustained when she tripped and fell at the entrance of appellee-defendants’ garage. In her original complaint, appellant alleged only that the ledge at the entrance of the garage was a hidden peril and that appellees had been negligent in failing to warn her of its existence. Appellees answered, denying the material allegations of the complaint and, after a period of discovery, they moved for summary judgment. Prior to the trial court’s entry of an order on the motion for summary judgment, appellant amended her complaint so as to allege that appellees had been negligent in failing to warn her of the “hazardous conditions of the garage floor on the premises including the existence of a ledge separating the garage floor from the driveway. . . .” (Emphasis supplied.) Thereafter, the trial court entered an order granting summary judgment in favor of appellees. Appellant appeals from that order.

1. Appellant enumerates as error the trial court’s failure to give consideration to her amended complaint in ruling on appellees’ motion for summary judgment.

Under the applicable standard of notice pleading, appellant’s amended complaint was sufficient to assert a claim against appellees based upon their failure to warn her of the allegedly “hazardous conditions” of the garage floor, which hazardous conditions included but was not necessarily limited to the existence of the ledge. A “complaint shall contain ... [a] short and plain statement of the claims showing that the pleader is entitled to relief. . . .” OCGA § 9-11-8 (a) (2) (A). “It is not necessary that the complaint be perfect in form or set out all of the issues with particularity, it is necessary only to place the defendant on notice of the claim against him. [Cits.]” Walton v. James & Dean, Inc., 177 Ga. App. 77, 78 (1) (338 SE2d 516) (1985). The trial court’s order on appellees’ motion for summary judgment reflects, however, its refusal to give consideration to appellant’s amended complaint. Since appellant’s amended pleading was filed before the entry of the order on appellees’ motion for summary judgment, the trial court erred in failing to give it consideration. See generally Haskins v. Jones, 142 Ga. App. 153, 154 (3A) (235 SE2d 630) (1977); OCGA § 9-11-15 (a). Appellant’s amended complaint may have been subject to a motion for a more definite statement as to what, other than the ledge, constituted the alleged “hazardous conditions” in appellees’ garage. See OCGA § 9-11-12 (e). Appellant’s amended complaint was not, however, subject to elimination from the trial court’s consideration in ruling on appellees’ motion for summary judgment.

2. The trial court’s error in failing to give consideration to appellant’s amended pleading would be harmless, if the evidence of record nevertheless demonstrates that no genuine issue of material fact remained as to the claim which was asserted therein. Appellant contends, however, that the error was harmful because a genuine issue of fact does exist as to whether appellees negligently failed to warn her of the allegedly “hazardous conditions” of their garage floor, including the existence of the ledge.

It is undisputed that, at the time of her fall, appellant was a social guest at appellees’ home. “[A] mere social guest is a licensee. [Cits.]” Frankel v. Antman, 157 Ga. App. 26, 27 (276 SE2d 87) (1981). “ ‘The owner of the premises is liable to a licensee only for willful or wanton injury.’ [Cit.] ‘ “An owner owes to a licensee no duty as to the condition of the premises . . . save that he should not knowingly let him run upon a hidden peril or willfully cause him harm.” [Cit.]’ ” Nixon v. Edmonson, 177 Ga. App. 662 (340 SE2d 278) (1986). Applying these general legal principles to the evidence of record in this case shows the following: In support of their motion for summary judgment, appellees submitted affidavits wherein they stated that the condition of their garage floor on the day of appellant’s fall was the same as when the house was completed and that appellant had entered the house by passing through the garage on more than fifty occasions. In opposition, appellant submitted her own affidavit, stating therein only that her “foot slipped along the floor of the garage” and that she had not “been cautioned or forewarned to expect to encounter any slippery condition of the floor.”

There is no duty to warn one of something that he already knows. “ ‘The basis of the [landowner’s] liability is his superior knowledge and if his [licensee] knows of the condition or hazard there is no duty on the part of the [landowner] to warn him and there is no liability for resulting injury because the [licensee] has as much knowledge as the [landowner] does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. [Cits.] It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. [Cits.]’ ” Bunch v. Stanton, 174 Ga. App. 233, 235 (1) (329 SE2d 538) (1985). Nothing in appellant’s affidavit contradicts the affidavits submitted by appellees. Accordingly, construing the evidence most favorably for appellant, she slipped and fell on a garage floor which was in the same condition as the previous fifty times that she had crossed over it. It follows that she had equal knowledge of the existence of the ledge at the entrance to appellee’s garage and that the ledge did not, therefore, constitute a “hidden peril” of which appellant should have been warned. See generally Westall v. M & M Supermarkets, 174 Ga. App. 155 (329 SE2d 237) (1985); Durrance v. Bacon County Hosp. Auth., 172 Ga. App. 1 (321 SE2d 767) (1984); Thomas v. Fabric Outlets, 169 Ga. App. 175 (311 SE2d 852) (1983).

Decided September 6, 1988

Rehearing denied September 21, 1988.

James S. Lanier, Jr., for appellant.

Morris E. Braswell, William D. Harrison, for appellees.

Insofar as appellant’s general allegations of “hazardous conditions” other than the ledge are concerned, appellees’ affidavits would again show that the condition of their garage floor was no different on the day that appellant fell than on the previous fifty times that she had crossed over it. Again, nothing in appellant’s affidavit is to the contrary. All that can be said for the affidavit submitted by appellant is that “[s]he merely stated [therein] that she slipped and fell, but that she could not determine what it was that caused her fall” (Emphasis in original.) Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). “Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go. It cannot be inferred from a silent record that [appellees] negligently maintained [their garage] floor. [Appellant’s] statements, taken in the light most favorable to her, are merely conclusions and are probative of nothing. The fact is they show that she proceeded on the floor with full knowledge of its condition ‘as usual.’ ” Alterman Foods v. Ligon, supra at 625-626. Construing the evidence most favorably for appellant, she had equal knowledge of the condition of the garage floor, which the undisputed evidence of record showed had not changed from the previous times she had passed over it. Accordingly, appellees were not liable for her injuries and the trial court correctly granted their motion for summary judgment.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    76500.
    SOUTHERN INSURANCE UNDERWRITERS, INC. v. RAY.
    (373 SE2d 236)
   Beasley, Judge.

Insurer Southern Insurance Underwriters, Inc. (SIU) appeals from the denial of its motion for judgment notwithstanding the verdict or in the alternative for new trial, and from the denial of its motion for litigation costs and attorney fees under OCGA § 9-15-14. These followed a jury trial in a suit brought by its insured Ray to recover the policy limits for a building destroyed by fire.

The trial court partially granted SIU’s motion for a directed verdict, ruling that it had the right under OCGA § 33-32-5 (a) and the policies to rebuild the destroyed structure instead of paying the face amount of $31,000. The jury returned a verdict in favor of Ray for $5,200 penalty and $8,000 attorney fees under OCGA § 33-4-6. The court entered judgment for these sums and ordered that the insurer reconstruct Ray’s dwelling, as nearly as possible, with the same workmanship and material, and to the same state of completion as it was prior to the loss.

1. Appellant contends that it was error to deny its motion for j.n.o.v. or new trial because there was no evidence of bad faith in refusing to pay the claim within sixty days of demand.

“ ‘In an action to recover penalties and attorney’s fees for the refusal of an insurer to pay a claim it must be shown that the refusal was in “bad faith,” [OCGA § 33-4-6 ...]..., and the burden is on the insured to show that such refusal was made in bad faith. [Cits.] “Bad faith” . . . means “any frivolous and unfounded refusal in law or in fact to comply with the demand of the policyholder to pay according to the terms of the policy.” [Cits.]. . . .’” Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703 (1) (302 SE2d 605) (1983).

The evidence viewed most favorably toward Ray established the following: The fire loss on the semi-completed structure occurred on December 6, 1985. That evening Ray’s insurance agency was notified. SIU received notice of the loss on December 10. The insurance agency did not respond to Ray’s inquiries concerning the claim, so Ray retained an attorney. The attorney sent a letter to the agency on January 6, 1986, demanding the policy limits be paid within five days. A second letter demanding payment was sent to the agency on January 14 and copied to SIU. On January 17, Ray’s attorney was advised by SIU that the policy had been issued and the claim assigned to an adjuster. No insurance policy was mailed to Ray at that time, although the policies were effective as of October 25, 1985.

On January 21, Ray’s attorney notified the adjuster of his representation of Ray. Ray gave a recorded statement to the adjuster on January 27. On January 30, Ray’s attorney wrote the adjuster making a demand for a proof of loss. Ray had not received a copy of either of the two policies issued to cover the structure, nor had he been furnished the name of the underwriter. The attorney mailed the adjuster a list of material and labor spent on the destroyed house on February 13. The adjuster’s report was received by SIU on March 7.

On April 14, more than four months after the fire, SIU provided Ray with a copy of the policies, a blank proof of loss (see OCGA § 33-24-39), and a reconstruction estimate of $15,804. On May 14, Ray rejected SIU’s offer which had been made via the adjuster, and again demanded policy limits. He also again requested the name of the underwriter. On June 4, the adjuster notified Ray for the first time of the insurer’s intention to replace the structure or pay its revised estimate of $23,689. Ray rejected the offer and filed suit.

SIU argues that the evidence at most shows a delay caused by investigation of the fire and obtaining estimates to rebuild. Even assuming that investigation led to some delay, the insured was not notified of it nor of the insurer’s desire to rebuild rather than pay under the policies’ limits until seven months after the fire.

“ ‘ “[T]he proper rule is that the judgment (for bad faith penalties and attorney’s fees) should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.” ’ [Cit.]” Id. at 707 (1).

The lag as explained and the extent of the offer are some evidence supporting a bad faith finding and precluding a conclusion that bad faith was not proved as a matter of law.

2. The insurer further maintains that although the trial court was correct in recognizing its right to rebuild the destroyed structure, it erred in entering a judgment ordering reconstruction of the insured premises instead of a money judgment in an amount not exceeding the cost of repair.

Plaintiff in his complaint and in the consolidated pretrial order sought simply a money judgment and did not make a claim for specific performance. In ruling on the motion for directed verdict, the court accepted the insurer’s position that it did not have to pay the policy limits, based on the policy provision that “it shall be optional with this Company ... to repair, rebuild or replace the property destroyed or damaged with other of like kind and quality within a reasonable time, on giving notice of its intention so to do within thirty days after the receipt of the proof of loss herein required.”

The court indicated it would extend that right to the insurer, and no one complained. It instructed the jury that the only issue before it was the statutory penalty and attorney fees, because “[t]he insurance company has offered to rebuild, or reconstruct the property so that will not be an issue before you.” Defendant did not object to this ruling on its motion for directed verdict, and thus it acceded to removing from the jury the question of what amount, if any, the insured would be entitled to for failure of insured to rebuild. Plaintiff did not appeal from that resolution even though it sought a money judgment instead of specific performance, and it did not insist that insurer had lost the right to rebuild by not giving notice within thirty days or by not rebuilding within a reasonable time.

As to insurer’s appeal, “ ‘[o]ne cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.’ [Cit.]” Dodd v. Dodd, 224 Ga. 746, 747 (164 SE2d 726) (1968).

Decided September 7, 1988

Rehearing denied September 21, 1988

W. Grady Pedrick, for appellant.

Leon M. Braun, Jr., Richard D. Phillips, for appellee.

3. Lastly, appellant urges that it was error for the trial court to deny its motion for litigation expenses and attorney fees because Ray had taken the position that SIU was obligated to pay the policy limits rather than rebuild.

The award sought may be made when a “party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” OCGA § 9-15-14 (a).

There was evidence that plaintiff believed the insurer had forfeited any right to rebuild because of its dilatory actions. Moreover, insurer sought to force a rebuilding or payment of $23,689, even though the policy did not provide for the latter. Insured’s refusal to accept either alternative and to seek legal redress was not wholly frivolous. We find no error in the trial court’s denial of the insurer’s motion for litigation costs and attorney fees.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


author: Birdsong, Chief Judge.

text:
    76566.
    ZAPPA v. BASDEN.
    (373 SE2d 246)
   Birdsong, Chief Judge.

The appellant Joseph Zappa appeals from a directed verdict for the appellee, John Basden. Zappa was the owner and operator of a welding shop in south Atlanta. Because of ill health he decided to close the shop and sell the building, equipment and supplies. While a real estate agent was discussing the sale of the realty, Basden, who was also a welder, came to the shop to purchase welding supplies. He had been friends with Zappa for a number of years. Zappa told Basden he should purchase the business and they discussed a sale of the realty and the equipment. Basden said that because the end of the year was coming up he decided to go ahead and buy the tools and deduct them from that year’s income tax. Mrs. Zappa presented Basden with an “invoice” of the equipment he wanted, with the prices stated after each entry. Basden gave Zappa a check for the total amount of the invoice, $9,575, which was accepted and collected.

Zappa testified that he and Basden agreed to the amount of down payment — $30,000 — $15,000 to be applied to the purchase of the realty, and $15,000 to be applied to the purchase of equipment. Zappa said a purchase price for the realty was agreed upon — $115,000 and Zappa was to receive $1,500 per month until the remainder was paid. Basden said that when Zappa presented him with the amortization schedule he pointed out they had agreed it would be “a long term loan, simple interest, pay it off as fast as I could with no penalty of interest.” The amortization provided for a 20-year-pay-out at 13 percent which Basden said he did not want. Basden said he told Zappa he would not agree to “an amortization. ... No form of an amortization. ... I just wouldn’t do it. I told him, no.” Basden testified that Zappa had told him “it would be alright [sic] to go a year and not pay anything on that. And then the next time I saw him, he said that will have to be caught up at the end of the year. And then before I left him that time he said, it [the amortization schedule] would have to be adhered to exactly, and that’s when I told him, no, no deal.” Basden requested delivery of the equipment he had purchased. He said Zappa told him: “If I wasn’t going to buy the place I couldn’t get the tools.” Basden requested the return of his check and was refused. Zappa stated that this was a “package deal . . . equipment, customers, and building.” “I didn’t consider that a check for that equipment. I considered it a down payment — this was part of the down payment on the package deal. ...”

Zappa’s wife, Myrtle, was present, and she also testified that the agreement was a “package deal,” and the list of equipment she had given Basden “is an incomplete list of equipment.” She said she had started an inventory of all equipment that would be sold at auction after the sale of the building and the prices listed were given to her by her husband as “the bottom prices we would take at auction.” Counsel asked her: “If he didn’t buy this list of equipment, why was the list of equipment given to him? A. (No response.)”

Although Zappa claimed verbal agreement had been reached, he did not know what amount would be left owing. He said he had agreed to take $115,000 for the building and Basden was to select what equipment he wanted. He explained that Basden was to pay $30,000 at closing and $15,000 would be credited toward purchase of the building and the remainder toward purchase of equipment and supplies to be selected, and if Basden wanted more than that amount of equipment and supplies Zappa would “finance it at a very fair rate or less than fair, I mean lower than fair. . . . And there would be a side note. . . .” Zappa was asked: “What was the total sales price that you all had agreed on? A. I can’t give you that [counsel], because I never reached that. We never reached that.” At a later point Zappa was asked: “Now, did you agree with Mr. Basden or did you not on the price of the entire transaction? A. Yes, we did. Q. And will you tell the Court and Jury if you would, what the terms of that agreement were? A. It was fifteen thousand dollars down on the real estate, which is one hundred and fifteen thousand, and at least fifteen thousand on the equipment that he was going to purchase to make it thirty thousand dollar downpayment on an overall minimum price project of one hundred and thirty thousand dollars.” Mrs. Zappa concurred: “A hundred and fifteen thousand dollars for the building and fifteen thousand for inventory, minimum price. . . . Q. What was the maximum price? A. Never determined. . . . No need to determine after Mr. Basden said he didn’t — backed out of the deal.”

It was established that the only equipment selected by Basden was that listed on the “invoice[s]” given to Basden, which totaled $9,575 and that Basden had given a check to Zappa in that amount. A letter from Zappa’s attorney was introduced in which he contended Basden had “previously refused and failed to fulfill the obligation to come to a closing of the real property which you agreed to purchase from Joseph & Myrtle Zappa.”

Basden filed this action to recover the $9,575 given to Zappa. Zappa answered and counterclaimed alleging that Basden had forfeited the $9,575 “because of the breach of the contract by the Plaintiff,” and because Basden had “interfered with the sale of [this] real property and a certain business” which “was a package deal by which the Defendant was to sell certain real property” and that Zappa had “substantially changed his position in reliance upon the contract and was thereby injured” and was entitled to recover damages, “special; actual, and punitive. . . .” The trial court directed a verdict for Basden in the amount of $9,575 and for Basden on Zappa’s counterclaim. A motion for new trial was denied. Zappa brings this appeal from that judgment. Held:

Appellant has combined into one division his argument on all of his enumerations of error and we will do likewise. Error is enumerated as to the grant of a directed verdict to appellee on the complaint and on appellant’s counterclaim, as well as denial of appellant’s rhotion for new trial. At trial and on appeal, appellee’s basis in law for his claim is that he and the appellant reached agreement on the sale of equipment and he paid the amount requested by appellant, but was refused delivery of the equipment or return of his money. And, that his purported agreement with appellant as to the building was for the sale of realty and unenforceable because it was not in writing as required by the Statute of Frauds, OCGA § 13-5-30 (4).

Under the statute of frauds, for an obligation to be binding on a promisor “the promise must be in writing and signed by the party to be charged” where the subject matter of the agreement is for the sale of or any interest in land. “The statute of frauds [cit.] requires all contracts coming within its operation to be reduced to writing. In construing this provision it has been held that every essential element of the contract must be expressed in writing, in order to comply with the statutory requirements.” Stonecypher v. Ga. Power Co., 183 Ga. 498, 502 (189 SE 13); see also Pindar, Ga. Real Estate Law & Proc. 17, § 18.8. It is evident from the testimony of Joe and Myrtle Zappa that the so-called agreement did not provide for every essential element of the contract for no agreement was reached on the specifics of payment of that portion of the sale price not paid at closing. “Where the amount of the purchase price fixed by the contract is certain and definite, but the terms of payment are indefinite and uncertain, the writing is not a contract and confers no rights and imposes no liability.” Morgan v. Hemphill, 214 Ga. 555, 556 (105 SE2d 580); accord Barton v. E. D. Martin Co., 142 Ga. App. 586 (1) (236 SE2d 555); Chastain v. Allison, 122 Ga. App. 811 (178 SE2d 752); Collins v. Wright, 119 Ga. App. 4 (165 SE2d 878). Appellant also admits that future negotiations were anticipated, both as to selection of equipment and supplies, and sales price.

Inextricably, intertwined with this purported oral agreement for the sale of realty is whether the parties did anything more than agree to reach an agreement in the future. “ ‘Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect.’ ” Hartrampf v. Citizens &c. Investors, 157 Ga. App. 879, 881 (278 SE2d 750); accord John Bleakley Ford v. Estes, 164 Ga. App. 547 (1) (298 SE2d 270); Malone Constr. Co. v. Westbrook, 127 Ga. App. 709 (194 SE2d 619). “ ‘ “An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.” ’ ” Russell v. City of Atlanta, 103 Ga. App. 365, 367 (119 SE2d 143); accord Wells v. H. W. Lay & Co., 78 Ga. App. 364, 367 (50 SE2d 755). We find the so-called verbal agreement was only an agreement to reach an agreement in the future.

Appellant argues that he relied upon his agreement with Basden to his detriment and disposed of certain material at a reduced price. Basden admitted that he told Zappa that if he purchased the shop he would not be interested in his motorcycle business. Zappa modified motorcycles for racing and motocross and stocked the material to accomplish those modifications. He sold this material. Appellant contends that under OCGA § 51-1-8 a private duty may arise from a relation created by contract, express or implied, which, if accompanied by damage would give him a cause of action, and under OCGA § 51-1-6, where the law requires a person to perform an act for the benefit of another, or to refrain from doing an act which may injure another, although no cause of action is given in express terms, “the injured party may recover for the breach of such legal duty if he suffers damages. . . .” Appellant argues that he had a contract, the appellee had a duty not to injure him, and he suffered damage because of appellee’s actions. We find both Code sections inapplicable to the facts of this case. First, the statute of frauds prevented the formation of an enforceable contract for an oral agreement for the sale of realty. Secondly, the parties failed to agree on all necessary elements of a contract. Appellant has failed to cite us to any legal authority authorizing damages for the failure of a party to carry out the purported terms of an oral contract for the sale of realty.

It cannot be argued that there was such part performance of the verbal agreement that it would have been a fraud on appellee’s part to refuse to comply with the agreement. OCGA § 13-5-31 (3). First, actionable fraud cannot be based merely on statements referring to future events, or which are merely promissory as to future acts and are not an inducement to enter the contract. Scott v. Lumpkin, 153 Ga. App. 17, 20 (264 SE2d 514). Secondly, partial payment of the purchase price, unaccompanied by possession or valuable improvements does not meet the test of part performance. Kenimer v. Thompson, 128 Ga. App. 253 (1) (196 SE2d 363). Partial performance which will vitiate the statute of frauds must be “ ‘ “substantial and essential to the contract and which results in a benefit to one party and a detriment to the other.” ’ ” Metzgar v. Reserve Ins. Co., 149 Ga. App. 404 (254 SE2d 517); accord Hudson v. Venture Indus., 147 Ga. App. 31, 32 (248 SE2d 9). Here, even though there was a sale of appellant’s “exotic” supplies, it may have resulted in a detriment to the appellant but it did not result in a benefit to the appellee. Further, even if appellant had sold the building to appellee, he would have to dispose of the same “exotic” material to someone, for the appellee had advised Zappa that he was not interested in his motorcycle business which utilized the materials disposed of by appellant. Zappa had previously planned to sell his supplies at auction after he sold his building through the realtor. It is not satisfactorily explained why appellant’s sale of the building to appellee required him to pursue a different course of action, rather than the one decided upon when he was selling the building through the realtor.

“ ‘That part performance which will remove a contract from the statute of frauds refers to performance of the provisions of the contract and not to acts done by one because of his belief in and reliance on the agreement.’ ” Sierra Assoc. v. Continental &c. Trust Co., 169 Ga. App. 784, 789 (315 SE2d 250); accord Smith v. Davidson, 198 Ga. 231, 238 (3) (31 SE2d 477); Neely v. Sheppard, 185 Ga. 771, 780-781 (196 SE 452); Spiegel v. Hays, 103 Ga. App. 293, 301 (119 SE2d 123). “ ‘The performance of other acts independent of and not required by the terms of the contract will not be sufficient to constitute part performance so as to bring it within the exception of [OCGA § 13-5-31 (3)].’ ” Sierra Assoc., supra at 789; Moon v. Stone Mountain Mem. Assn., 223 Ga. 696, 698 (157 SE2d 461). The act of the plaintiff in selling his supplies which were not wanted by the appellee was not in conformity to any provision of the alleged oral contract but was in reliance upon the purported agreement. Hence, the facts do not show such partial performance of the oral agreement as would remove it from the statute of frauds.

Decided September 8, 1988

Rehearing denied September 21, 1988

Paul S. Weiner, for appellant.

Monroe Ferguson, for appellee.

Accordingly, we find the verbal agreement of appellant and appellee was nothing more than an agreement to reach an agreement in the future, and was a verbal agreement for the sale of realty which was required to be in writing to remove it from the proscription of the statute of frauds. Thus, the trial court did not err in directing a verdict for appellee on his complaint, and on appellant’s counterclaim, and in denying appellant’s motion for new trial.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    76592.
    CITY OF McDONOUGH v. WALKER et al.
    (373 SE2d 238)
   McMurray, Presiding Judge.

The City of McDonough brought this condemnation action in the Superior Court of Henry County. Condemnees acknowledged service of the petition and the case was heard by a special master. The special master awarded condemnees a total of $20,660, representing actual and consequential damages. The city appealed and so did the condemnees.

Upon the conclusion of the case, a jury awarded condemnees $18,000. Judgment was entered in accordance with the verdict. Thereafter, condemnees filed a motion for attorney fees and expenses of litigation pursuant to 42 USC § 1988.

The trial court granted condemnees’ motion. It awarded condemnees’ attorney fees of $2,786.25 and litigation expenses of $1,253.43. The city appeals. Held:

The Civil Rights Attorney’s Fees Awards Act of 1976, 42 USC § 1988, provides that attorney fees may be awarded to the winning party in any action in which the party’s civil rights are enforced. This fee provision is part of the remedies afforded in civil rights actions (42 USC § 1983, inter alia) and it applies to actions brought in federal or state courts. Maine v. Thiboutot, 448 U. S. 1 (100 SC 2502, 65 LE2d 555). Does this fee provision have application in the ordinary condemnation proceeding? We previously held, in Jackson v. Dept. of Transp., 159 Ga. App. 130, 132 (2) (283 SE2d 59), that it does not and we reiterate our ruling in that case: A condemnation proceeding is “no more than an ordinary legal action by the [condemnor] to condemn private property in accordance with the condemnation statutes of this state. We have difficulty converting this procedure into a civil rights’ violation. [Condemnees] raised no legal objection to the propriety of [the] taking, contesting only the value of the property taken and consequential damages. It is the clearly announced law of this state that attorney fees (as well as expenses involved in defense of the litigation) are not recoverable, i.e., that such costs are not a part of the condemnation process. [Cits.]” Jackson v. Dept. of Transp., supra.

Decided September 7, 1988

Rehearing denied September 21, 1988

Arch W. McGarity, for appellant.

Wade M. Crumbley, for appellees.

Judgment reversed.

Pope and Benham, JJ., concur.


text:
    76649. 76650.
    OPATUT et al. v. GUEST POND CLUB, INC. EVANSTON INSURANCE COMPANY v. OPATUT et al.
    (373 SE2d 372)
   Carley, Judge.

Guest Pond Club, Inc. (GPC), the appellee-plaintiff in Case Number 76649, owns property which contains a pond. Several members of the Opatut family (Opatuts), the appellant-defendants in Case No. 76649 and the cross-appellees in Case No. 76650, own the property which adjoins that of GPC. Rite-Diet Feeds, Inc. (RDF), also an appellant-defendant in Case No. 76649 and a cross-appellee in Case No. 76650, operates a chicken plant on the Opatuts’ property. Alleging that water used in the chicken plant had been discharged into its pond, GPC brought suit against the Opatuts and RDF to recover damages. The Opatuts and RDF answered, denying the material allegations of GPC’s complaint.

The Opatuts and RDF also filed a third-party action against Evanston Insurance Company (Evanston), an appellee in Case No. 76649 and the cross-appellant in Case No. 76650. In their third-party action, the Opatuts and RDF alleged that Evanston was their insurer and that Evanston’s refusal to afford them a defense to GPC’s main action was a breach of their contract of insurance. Evanston answered the third-party complaint and denied the material allegations thereof.

The main action and the third-party action proceeded to trial before a jury. A verdict in favor of GPC was returned in the main action. A verdict in favor of Evanston was returned in the third-party action. In Case No. 76649, the Opatuts and RDF appeal from the judgments which were entered on the jury’s verdicts. In Case No. 76650, Evanston cross-appeals from the judgment which was entered on the jury’s verdict in the third-party action.

Case No. 76649

1. The Opatuts and RDF enumerate as error the trial court’s denial of two of their motions for continuance.

When Joel Opatut, one of the appellant-defendants, was unable to appear in court due to illness, his absence was unsuccessfully urged as a ground for continuance. See OCGA § 9-10-154. A review of the record shows, however, that the trial court had already granted one continuance because of Opatut’s inability to appear in court due to illness. “The [trial] judge had before him the case, the parties, the situation, and the surrounding and attendant circumstances. He declined to grant a second continuance for the absence of the same witness, who was also a party, and whose evidence could have been taken by [deposition]. . . . [W]e can not say that he erred.” Gable v. Gable, 130 Ga. 689, 691 (61 SE 595) (1908).

The Opatuts and RDF were represented at trial by only two of their three attorneys of record. The absence from trial of their third counsel due to illness was also unsuccessfully urged as a ground for continuance. See OCGA § 9-10-155. The record shows, however, that the two attorneys who represented the Opatuts and RDF at trial had been primarily responsible for the pre-trial preparation of the case. “Thus, we are not confronted with the situation of an entirely new counsel being presented with a complex case and having absolutely no familiarity with the case or being totally unprepared. It is apparent that the counsel who did most of the case preparation was present [and tried the case], even though he might not have been the . . . ostensible ‘lead’ counsel. . . . [A] motion for continuance is addressed to the sound discretion of the trial court and a denial will not be disturbed in the absence of a manifest abuse of discretion. [Cits.]” Rutledge v. State, 152 Ga. App. 755, 757 (264 SE2d 244) (1979). “Continuances for the absence of counsel are not favored. A strict compliance is required, particularly where competent counsel other than the absent counsel has been secured, and it is not shown that the defendant was injured by the absence of his original counsel. [Cits.]” Curry v. State, 17 Ga. App. 377 (2) (87 SE 685) (1915). See also Blair v. State, 166 Ga. App. 434 (1) (304 SE2d 535) (1983). As there has been no showing that the Opatuts and RDF were injured by the absence of their third counsel from trial, we find that the trial court did not abuse its discretion in denying the motion for continuance.

2. The trial court denied the Opatuts’ and RDF’s request that they be granted additional peremptory strikes in connection with the third-party action against Evanston. This ruling is enumerated as error.

“Where, as here, a third-party claim can be severed, OCGA § 9-11-42 (b), the trial court may grant additional strikes to the defendants in the exercise of a legal discretion. [Cits.] A legal discretion ‘ “means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.” [Cits.]’ [Cit.]” Keller Indus. v. Summers Roofing Co., 179 Ga. App. 288, 290 (1) (346 SE2d 99) (1986). A review of the record clearly shows that the trial court was aware of its discretion in the matter and that, in refusing to allow additional peremptory strikes, it considered the “posture of the case, the respective claims of the parties, and the adverse nature of those claims.” Keller Indus. v. Summers Roofing Co., supra at 290. Accordingly, we find no abuse of discretion in the trial court’s ruling.

3. A witness for GPC testified on direct examination that he had fished in GPC’s pond numerous times. On cross-examination, the witness was asked it he had ever fished in Bank’s Pond. GPC objected, urging that, in the absence of any evidence that the two ponds were similar, inquiry as to Bank’s Pond would be irrelevant. The trial court ruled that GPC’s witnesses could not be cross-examined as to other ponds until there was evidence introduced to show that they were similar to GPC’s. Once this evidence of similarity had been introduced, the trial court ruled that the Opatuts and RDF would then be allowed to recall any of GPC’s witnesses and question them as to the other ponds. The trial court’s ruling is enumerated as an erroneous curtailment of the cross-examination of GPC’s witnesses.

The Opatuts and RDF, “of course, had the right to a thorough and sifting cross-examination of any witness called against [them]. OCGA § 24-9-64 ([cit.]). However, the extent of cross-examination can be curtailed if the inquiry is not relevant or material, and such restriction lies within the discretion of the trial court which will not be disturbed on appeal unless manifestly abused. [Cits.]” Fitzgerald v. State, 166 Ga. App. 307, 310 (304 SE2d 114) (1983). Evidence as to other ponds would not be relevant until it was established that the other ponds were similar to GPC’s. See generally Green v. Gaydon, 174 Ga. App. 796, 797 (1) (331 SE2d 106) (1985). Under the trial court’s ruling, had such evidence of similarity been introduced, the Opatuts and RDF would have been allowed to recall GPC’s witnesses and elicit testimony as to the other ponds. Accordingly, we find that the trial court did not abuse its discretion in limiting the cross-examination of GPC’s witnesses until the relevancy of the line of questioning was shown.

4. During direct examination, a witness for GPC was asked if GPC had the funds to restore the pond to its original condition. The witness replied that GPC had no assets and was in debt. The Opatuts and RDF moved for a mistrial, on the ground that evidence of GPC’s financial condition was irrelevant. The trial court denied the motion, but did instruct the jury to disregard the testimony. The Opatuts and RDF enumerate the denial of their motion for a mistrial as error.

“ ‘Where illegal evidence is admitted at the trial, it is not error to refuse the grant of mistrial if the illegal or harmful testimony can be corrected by proper instructions to the jury . . . [Cits.] The decision not to declare a mistrial is within the discretion of the trial court, and this discretion should not be interfered with unless manifestly abused.’ [Cit.]” Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158) (1977). The trial court’s curative instructions were sufficient under the circumstances and there was no abuse of its discretion in denying the motion for a mistrial.

5. The Opatuts and GPC moved for a mistrial, on the ground that GPC’s counsel had violated the “Golden Rule” in his closing argument. The trial court denied the motion and this ruling is enumerated as error.

A review of the transcript shows that GPC’s attorney was merely flamboyantly arguing the facts of the case and that he at no point urged “the jurors to place themselves in the position of [GPC] or to allow such recovery as they would wish if in the same position. [Cit.]” Earl v. Edwards, 117 Ga. App. 559, 560 (3) (161 SE2d 438) (1968). Accordingly, this enumeration is without merit.

6. At the outset of its charge to the jury, the trial court read the contentions of all of the parties in the case. The Opatuts and RDF enumerate this portion of the trial court’s charge as error.

“The trial court made it clear to the jury that the allegations were merely the contention[s] of the [parties], [and that they] were not evidence. ... It is not improper in a charge to the jury to state the contentions [of the parties], even though some of the contentions be unsupported by the evidence. [Cit.]” Ledbetter Bros. v. Holmes, 122 Ga. App. 514, 515 (1) (177 SE2d 824) (1970). Accordingly, this enumeration is without merit.

7. The Opatuts and RDF moved for directed verdict against Evanston. The denial of their motion is enumerated as error.

“The directing of a verdict is a ‘very, very, grave matter’ [cit.], and as a vehicle of justice, is proper only where ‘there is no issue of (material) fact, or unless the proved facts, viewed from every possible legal point, would sustain no other finding than the one so directed.’ [Cit.]” Able-Craft v. Bradshaw, 167 Ga. App. 725, 726 (1) (307 SE2d 671) (1983). See also OCGA § 9-11-50 (a). The record reveals that there was sufficient evidence introduced at trial to authorize the submission to the jury of the issue of Evanston’s liability to the Opatuts and RDF. Accordingly, the trial court correctly denied the motion for a directed verdict.

8. The trial court’s giving of two of Evanston’s requested jury instructions is enumerated as error, the contentions being that the instructions were argumentative, were not adjusted to the evidence, were incorrect statements of the law, and were prejudicial. A review of the contested instructions reveals, however, that they are not subject to the objections urged by the Opatuts and RDF. Accordingly, these enumerations are without merit.

9. GPC called Paul King as a rebuttal witness. The Opatuts and RDF objected on the ground that, after they had made a pre-trial identification of King as one of their expert witnesses, GPC had made “ex parte” contact with him in violation of § 9-11-26 (b) (4). The trial court overruled the objection and allowed King to testify as a rebuttal witness for GPC. This ruling is enumerated as error, the contention being that the trial court should have excluded King’s testimony as a sanction against GPC for improper discovery methods.

Trial courts have broad discretionary powers under the discovery provisions of the Civil Practice Act and appellate courts have consistently refused to interfere with the exercise of a trial court’s discretion except in cases of clear abuse. See generally Rucker v. Blakey, 157 Ga. App. 615, 616 (278 SE2d 158) (1981). We find no abuse of the trial court’s discretion in refusing to exclude King’s testimony as a sanction for GPC’s alleged violation of discovery rules.

10. The Opatuts and RDF enumerate as error the trial court’s allowing of Evanston to participate in the trial of the main action.

OCGA § 9-11-14 (a) provides that “[t]he third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim.” Since Evanston would be liable to GPC only if the Opatuts and RDF were found to have caused damage to GPC’s property, Evanston was clearly entitled to assert the Opatuts’ and RDF’s lack of liability as a defense to the main action. Accordingly, the trial court did not err in allowing Evanston to participate in the trial of the main action.

11. The trial court did not err in entering judgment on the jury’s verdicts in the main action and in the third-party action.

Decided September 6, 1988

Rehearing denied September 21, 1988.

W. Emory Walters, J. Harvey Davis, Thomas E. Pujadas, for Opatuts.

Berrien L. Sutton, Robert D. Sumner, for Guest Pond.

Susan A. Cahoon, Stephen E. Hudson, for Evanston.

Case No. 76650

12. Evanston’s cross-appeal is moot by virtue of our affirmance in the main appeal of the judgment on the third-party action.

Judgment affirmed in Case No. 76649.

Appeal dismissed in Case No. 76650. Deen, P. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    76682.
    DEVER v. LEE.
    (373 SE2d 224)
   Deen, Presiding Judge.

Appellant Alan Dever, a Ph.D. with expertise in epidemiology and related biomedical specialties, in 1982 agreed with appellee Ralph Lee, a medical doctor in general practice, to open an institution to be known as the Center for Preventive Medicine (CPM). According to their agreement, Lee would serve as medical director, working two to two-and-one-half days per week, for the nominal salary of $2,000 per month while also working part-time elsewhere. Also according to their agreed-upon arrangement, Dever would devote between 20 percent and 30 percent of his time to the Center while at the same time teaching at Mercer University’s medical school and working as a consultant on certain health issues.

In order to finance the opening of the Center, Dever and Lee, in their respective capacities as president and vice-president of CPM, executed a promissory note for $40,000 to the First National Bank of Atlanta. Each gave his personal guaranty, and the note was further secured by a second mortgage on Dever’s house. Dever and Lee also executed a three-year lease on the property where CPM was to be located. The Center opened in June 1982, with Dever taking care of operations, including expenses. Some months later he informed Lee that, because of low revenues from patients, it would be necessary to cut Lee’s salary in half. Finding himself unable to subsist on this sum in conjunction with his other salary, Lee informed Dever that it would be necessary for him to make other employment arrangements, and that he would leave the Center as of March 25, 1983.

After termination of his employment at the Center, Lee was informed by Dever’s attorney that he was still liable on the lease and note and would be expected to make regular payments. In the meanwhile, Dever unilaterally approached the bank with a view to extending the term of the note and changing it from a variable to a fixed-rate instrument, thereby reducing the monthly payments from the original $1,100-plus to $700-plus. A bank officer marked the original note “paid” and on April 29, 1983, issued a new note in the amount of $33,000, this being the amount of the unpaid balance on the original note at that time. The new note was signed by Dever; it is undisputed that Lee had no knowledge of these negotiations or of the existence of the second note. CPM continued to operate at a loss and closed its doors a few months after Lee’s departure.

After Lee had declined to pay on the note or the lease, Dever arranged a compromise settlement of the lease for $5,000. He brought an action for contribution against Lee on both the lease and the note, seeking $2,500 on the lease and something in excess of $26,000 towards the approximately $53,000 which Dever had paid on the notes. Lee’s counsel filed an untimely answer, and the case went into default. Dever moved for a default judgment, which was denied. The trial court subsequently opened the default, holding that the sheriff had failed to enter the return date and that counsel, consequently, had mistaken the date the answer was due. Both parties moved for directed verdicts, and the trial court granted Dever a directed verdict on the lease in the amount of $2,995.63. He directed a verdict for Lee with respect to the note, holding that as a matter of law the second note was a novation and that Lee’s personal guaranty inured only to the bank and to Lee himself (or his heirs and assigns) and was not binding with respect to his co-obligor.

Dever appeals from the directed verdict on the note, enumerating as error (1) the trial court’s holding that the new note was a novation discharging Lee from his obligation under the original note; (2) the holding that any waiver or consent given by Lee in the original note did not inure to Dever’s benefit; (3) the trial court’s determination that Lee was an uncompensated surety; (4) the holding that the change in duration and interest rate of the note constituted an increase in Lee’s risk, which operated to discharge him; (5) the trial court’s opening Lee’s default allegedly without compliance with the statutory requirements. Held:

1. We initially call appellant’s attention to Court of Appeals Rule 15 (a) (2), which requires that a copy of the enumeration of errors be filed as an integral part of the brief, in addition to the copy required under Rule 27.

2. We first address appellant’s fifth enumeration, which assigns error to the trial court’s ruling opening the default which occurred when appellee’s answer was filed on January 16, 1985. The ,answer, according to appellant’s allegation, was six days late. The trial court, however, opened the default on the ground of excusable neglect despite non-compliance with OCGA § 9-11-55 (a). Through a series of incidents involving unclear handwriting and the failure of the process-server either to leave with Lee a copy of the return of service or to indicate the date of service on the papers themselves, Lee’s answer was filed either six days late or three days early. Because he was unaware of the possibility that he might be considered in default, Lee’s counsel did not follow the procedure for opening default as of right within fifteen days, as set forth in OCGA § 9-11-55 (a). The trial court found this oversight or mix-up not attributable to Lee or his counsel and therefore opened the default. Excusable neglect can be determined not by any fixed rule, but rather by the circumstances of each individual case. Snow v. Conley, 113 Ga. App. 486 (148 SE2d 484) (1966). This determination is within the sound discretion of the trial court, and will not be disturbed by the appellate court absent abuse of discretion. Alex v. Parkway-Blvd. Corp,, 157 Ga. App. 269 (277 SE2d 276) (1981). We find no abuse of discretion here. This enumeration is therefore without merit.

3. We shall address appellant’s first four enumerations together, since they are part and parcel of the same matter and must be subjected to the same analysis. Appellant Dever contends that appellee’s defense of novation and release is ill-founded. We find it unnecessary to decide whether the second note was a novation. It is undisputed that the original note was an agreement between the Center for Preventive Medicine (CPM) and the bank. In connection with that note, both appellant and appellee signed personal guaranties. The guaranty agreement signed by appellee purports to cover the indebtedness of the principal, which is identified as CPM, and provides that “[t]his instrument is continuing, absolute and unconditional and shall remain in full force and effect as to the Undersigned, subject to discontinuance as to any of the Undersigned . . . only” upon receipt of written notice by the bank from the undersigned of discontinuance of the obligation. The instrument further provides that the undersigned consents and agrees that the bank may at any time, without notice to the undersigned, “extend or renew for any period (whether or not longer than the original period), alter, modify or exchange, any of the Obligations, or any writing evidencing the Obligations, or any of them”; that the undersigned expressly waives “notice of the existence or creation of all or any of the Obligations”; and that “[t]he liability and obligations of the Undersigned hereunder shall not be released, impaired or affected in any manner by reason of . . . [t]he taking of any action consented to or permitted by the Undersigned herein or otherwise.”

The second note is also an agreement between CPM and the bank. It is true that, whereas the first note was signed by both appellant and appellee in their respective corporate capacities, the second was signed only by appellant, in his capacity as president of CPM, but we do not find this difference significant. The note clearly obligates the corporation,, and the evidence is undisputed that no new funds were advanced to the corporation on the second note. Further, no question of appellant’s authority to execute such a note may be raised by appellee, since the guaranty instrument signed by appellee also provides that “if the Principal is a corporation, . . . this instrument covers all obligations to the Bank purporting to be made in behalf of such organization by any officer or agent of the same, without regard to the actual authority of such officer or agent.” Thus, since appellee consented in advance to be responsible for just such an instrument as the second note, he cannot have been discharged as a surety by its execution, even if under other circumstances such a note could be considered a novation. See generally Bullard v. Carreras, 183 Ga. App. 539, 543 (359 SE2d 429) (1987).

We find no merit in appellee’s argument that appellant may not rely on the consent contained in the guaranty because the language of the guaranty provides that its benefits inure only to the bank and to the undersigned, i.e., appellee, since appellant’s right to contribution stems not from any language in the guaranty, but from operation of law. Because appellee was not discharged by the execution of the second note, appellant and appellee remained co-sureties, and OCGA § 10-7-50, a codification of the common law, provides that “[w]here several are sureties for the same principal for the same sum of money, either by one or by distinct instruments, and one pays more than an equal share of the sum, he may compel contribution from his cosureties. ...” Thus the fact that appellant and appellee were not signatories to the same guaranty agreement but rather signed separate agreements, each of which contains language providing that the agreement inures only to the benefit of the bank and the undersigned, is of no consequence here. Because both appellant and appellee were sureties for the obligations of CPM, and appellant paid CPM’s obligation to the bank, appellant is entitled to contribution from appellee, and the trial court erred by directing a verdict in appellee’s favor on this issue. See Hall v. Rome Auto. Co., 181 Ga. App. 621, 623-624 (3) (353 SE2d 542) (1987). Accordingly, the judgment must be reversed.

4. Appellee has filed a motion for a penalty pursuant to OCGA § 5-6-6. This Code section permits but does not require the imposition of a 10 percent penalty in certain circumstances in which the court considers the appeal to have been taken solely for the purpose of delay. The facts of the instant case do not constitute such circumstances as would authorize the imposition of the penalty, and we therefore deny the motion.

Decided September 6, 1988

Rehearing denied September 21, 1988

Larry S. McReynolds, J. Michael Welch, Frederic S. Beloin, for appellant.

William H. Arroyo, for appellee.

Judgment reversed.

Sognier and Pope, JJ., concur. Parley, J., disqualified.


text:
    76774.
    BLITCH v. THE STATE.
    (373 SE2d 227)
   Beasley, Judge.

Following the overruling of his motion for new trial, Blitch appeals his conviction and sentence for manufacture of marijuana, OCGA § 16-13-30 (j) (1). He contends that the court erred in not granting a directed verdict of acquittal and/or his motion for new trial because, except for the marijuana plants growing in the woods adjacent to the residence, the plants were portable and there was equal access by others to the contraband. He argues that the State showed nothing more than his presence in proximity to the plants, which was insufficient to support the conviction.

The State’s evidence was that as part of the Governor’s Task Force on Drug Suppression, GBI agents were conducting aerial and ground reconnaissance in Bryan County. One of the agents aerially spotted a patch of suspected marijuana plants between some short pine trees. When the helicopter circled, the agent saw four or five plants in black buckets near a brown and white mobile home. The home was occupied by Blitch, his wife and their twelve-year-old son. The Blitches’ twenty-one-year-old daughter, who had been living away for approximately three years, was in the process of moving in on that day. The Georgia State Patrol pilot accompanying the agent directed a ground team in.

The team found 51 marijuana plants, 22 of which were growing in a patch in a wooded area at the end of a path, approximately seventeen “steps” long, which began at the rear of the Blitch’s property near a dog pen owned by Blitch in which he kept his hunting dogs. The remaining plants were growing in white buckets with red markings and black buckets located along the rear and side borders of Blitch’s yard, at the line where the mowed yard ended and the wooded area began. Several plants in buckets were on the right-hand side of the woods line beside the mobile home. One plant-filled bucket was within a couple of steps of the dog pen. The buckets containing the marijuana plants were visible from Blitch’s yard. No buckets were found randomly strewn through the woods. Identical empty white and red buckets were found inside the dog pen and one on top of the air conditioning-heater unit attached to Blitch’s mobile home. These types of buckets were used by Blitch at his job and he brought them home to use to water and feed his dogs.

The plants found growing in the buckets were well watered and well cared for. Fertilizer had been mixed in with the mulch and the potting soil. The grass underneath the buckets was dead, indicating that the buckets had been in their locations for quite some time. Blitch maintained a vegetable garden in a cleared spot behind the mobile home.

The Blitch residence was rather isolated. There were no immediate neighbors on either side. Blitch’s daughter testified that no one ever came out to Blitch’s land.

Appellant argues that the equal access rule applies. It does not apply to “ ‘marijuana plants growing outside, which require a period of months to grow, mature, and be harvested.’ [Cits.]” Hendrixson v. State, 167 Ga. App. 517, 519 (4) (306 SE2d 349) (1983). As to the plants in buckets, even if the doctrine applies to them because they were portable (see Hendrixson, supra, and the cases cited therein, as well as the physical precedent of Shreve v. State, 172 Ga. App. 190, 191 (322 SE2d 362) (1984)), this does not help appellant.

It is true that “ ‘[m]erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.’ [Cit.]” Prescott v. State, 164 Ga. App. 671, 673 (297 SE2d 362) (1982). However, “[w]here there is evidence other than ‘equal access’ connecting an accused to contraband, it is for the jury to determine guilt or innocence.” Fears v. State, 169 Ga. App. 172, 174 (1) (312 SE2d 174) (1983).

There was substantial other evidence of possession of the “portable” contraband by Blitch, such as that Blitch was linked to ownership of the containers in which some of the plants were growing, that some of the plant-filled buckets were on the boundaries of Blitch’s yard within feet of his dog pen and his garden, all visible from his yard, and that Blitch was a gardener and had a readily available water source.

As to the twenty-two plants found growing in the ground, they were at the end of a beaten path several steps from Blitch’s dog pen. “[T]he ‘beaten path’ doctrine . . . allows connection of contraband found in close vicinity to a house so as to authorize rational jurors to conclude beyond reasonable doubt that the primary resident of that house owned or had control over the contraband. [Cits.]” Franklin v. State, 166 Ga. App. 375, 376 (1) (304 SE2d 501) (1983).

Decided September 6, 1988

Rehearing denied September 21, 1988

Lloyd D. Murray, Laura A. Marcantonio, for appellant.

Dupont K. Cheney, District Attorney, James S. Archer, Assistant District Attorney, for appellee.

“To sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond reasonable doubt, of guilt. [Cit.] Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb the finding, unless the verdict is unsupportable as a matter of law. [Cits.]” Butler v. State, 150 Ga. App. 751, 753 (258 SE2d 691) (1979).

The evidence, viewed in a light most favorable to the verdict, was sufficient to enable a rational trier of fact to find defendant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err in refusing to direct a verdict of acquittal or in refusing to grant a new trial based upon the general grounds.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


text:
    76785.
    STOKELY v. THE STATE.
    (373 SE2d 230)
   Carley, Judge.

After a bench trial, appellant was found guilty of theft by deception. He appeals pro se from the judgment of conviction and sentence entered by the trial court on its determination of guilt.

1. Appellant enumerates the general grounds. After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court’s admission into evidence of certain documents is enumerated as error. Appellant’s contention on appeal is that the documents were illegible. A review of the record shows, however, that appellant did not make any objection to the legibility of the documents when they were offered into evidence at trial. “Appellant has thus waived any error by [his] failure at any time during trial to object. . . . Tt is well established that objections to evidence cannot be raised for the first time on appeal. [Cit.]’ [Cit.] . . . ‘Stated otherwise, appellate courts exist for the correction of trial error, where proper objection is taken. [Cit.] Where enumerated errors on appeal attempt to raise for the first time questions not raised in the trial court, they present nothing for decision. [Cits.]’ [Cit.]” Merry Shipping Co. v. Sparks, 160 Ga. App. 376, 378 (287 SE2d 89) (1981). Moreover, an examination of the record reveals that the documents in question were legible. Accordingly, there is no merit in this enumeration.

Decided September 6, 1988

Rehearing denied September 21, 1988

Freddie Stokely, pro se.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

3. The trial court’s admission into evidence of appellant’s out-of-court statements is enumerated as error. A review of the transcript shows, however, that appellant made no objection to the admission of his out-of-court statements at trial. Appellant’s failure to object at trial precludes appellate review of the alleged error. See Merry Shipping Co. v. Sparks, supra.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    76795.
    BRIARD v. THE STATE.
    (373 SE2d 239)
   Carley, Judge.

Appellant was tried before a jury and found guilty of five counts of aggravated assault and five counts of kidnapping. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. Appellant enumerates the general grounds as to four of his five kidnapping convictions, urging that the asportation element was not established by the evidence.

A review of the record shows the following: Appellant entered the emergency room of the Douglas County Hospital and demanded to be examined by his personal physician. When the nurse on duty informed him that he would have to be examined by one of the staff physicians, appellant drew a gun and pointed it at the nurse. Appellant then forced the nurse into the office of the emergency room. There were three women in the office at the time that appellant and the nurse entered. Upon seeing that appellant was armed, the three women were unable to escape but they ran to a location in the office where they felt they would be afforded a degree of relative safety. Appellant in no way directed or ordered the three women to move from their original location in the office and they were allowed to remain at their chosen place of safety throughout the ordeal. Appellant subsequently demanded that a hospital security guard come into the office, threatening that he would kill the women if this demand was not met. Once the security guard was in the office, the appellant pointed a gun at him and ordered that he sit on the floor.

“A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). “For a kidnapping conviction, the [S]tate must prove an unlawful asportation of a person against his will. [Cit.]” Chambley v. State, 163 Ga. App. 502, 504 (2) (295 SE2d 166) (1982). The determinative factor with regard to the element of asportation is whether “appellant even momentarily caused the victim[s], ‘without lawful authority or warrant,’ through intimidation and coercion, to engage in actions (including moving from one place to another) ‘against [their] will[s].’ [Cit.]” Padgett v. State, 170 Ga. App. 98, 100 (316 SE2d 523) (1984). The evidence clearly authorized a finding that the nurse was forced, against her will, to enter the office and appellant does not contend otherwise. The evidence also shows, however, that the other three women, who were already in the office, acted on their own volition when they moved from one location to another. Compare Haynes v. State, 249 Ga. 119 (1) (288 SE2d 185) (1982); Morris v. State, 179 Ga. App. 228, 229 (4) (345 SE2d 686) (1986); Williams v. State, 178 Ga. App. 581, 591 (12) (344 SE2d 247) (1986); Chambley v. State, supra at 503 (1); Brown v. State, 132 Ga. App. 399, 401 (2) (208 SE2d 183) (1974). Accordingly, as to the counts alleging the kidnapping of these three women, the asportation element was not established and the trial court erred in denying appellant’s motion for a directed verdict.

The evidence did, however, show the unlawful asportation of the security guard. The security guard was coerced into entering the office against his will by appellant’s threats to injure his female captives. See generally Strozier v. State, 156 Ga. App. 241 (274 SE2d 633) (1980). Moreover, once the security guard was in the office, appellant threatened him with a gun and directed him to sit down. See Haynes v. State, supra at 119; Chambley v. State, supra at 502-503. Accordingly, as to the count alleging the kidnapping of the security guard, the trial court correctly denied appellant’s motion for a directed verdict.

2. Over objection, the trial court allowed one of the victims to give her opinion as to appellant’s sanity. This ruling is enumerated as error.

“ ‘Sanity or insanity is a proper subject for opinion evidence, and where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor. [Cits.]’ [Cit.] ‘ “A lay witness can give opinion testimony as long as he gives sufficient facts to form the basis of his opinion.” [Cits.]’ [Cit.]” Chancellor v. State, 165 Ga. App. 365, 369 (17) (301 SE2d 294) (1983). “ ‘This court has repeatedly held that a person’s state of mind or mental condition is properly the subject of opinion testimony and that after narrating the facts and circumstances upon which his conclusion is based, a nonexpert witness may express his opinion as to the state of mind or mental condition of another. [Cits.]’ [Cit.]” Leonard v. State, 157 Ga. App. 37, 38 (1) (276 SE2d 94) (1981). The victim in the present case had ample opportunity to observe the behavior of appellant at the time of the incident and she stated the facts upon which her opinion as to appellant’s sanity was based. Accordingly, the trial court correctly admitted the opinion testimony of the victim into evidence.

3. Appellant enumerates as error the denial of three of his motions for mistrial.

A motion for mistrial was made on the ground that a deputy’s testimony had implied that appellant had been present at the scene of a drug sale. Pretermitting the issue of whether the testimony was such as to place appellant’s character in issue, the record shows that it was appellant’s own counsel who had introduced the topic of appellant’s knowledge of the deputy’s involvement in undercover drug transactions. Once appellant introduced this topic, the State was entitled to pursue it. See generally Chatman v. State, 162 Ga. App. 582 (2) (291 SE2d 745) (1982); Martin v. State, 143 Ga. App. 848 (1) (240 SE2d 219) (1977). Accordingly, the trial court correctly denied this motion for mistrial.

Appellant moved for a mistrial on the ground that the trial court had expressed an impermissible opinion as to the facts of the case during its ruling on the admissibility of certain evidence. “[Rjemarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence. [Cits.]” Johnson v. State, 246 Ga. 126, 128 (269 SE2d 18) (1980). See also Troutman v. State, 178 Ga. App. 314, 315 (2) (342 SE2d 785) (1986); Havard v. State, 175 Ga. App. 798 (334 SE2d 381) (1985). Accordingly, the trial court correctly denied this motion for mistrial.

During cross-examination of one of appellant’s doctors, the State asked the witness if he knew that appellant had been “busted” for the offense of possession of 300 pounds of marijuana. Appellant moved for a mistrial on the ground that his character had been impermissibly placed into issue by the State’s question. The record shows, however, that it was appellant himself who had previously introduced the topic of his “bust.” “A party cannot complain about evidence brought out in cross-examination where the evidence was first explored on direct examination. [Cits.]” Hughes v. Newell, 152 Ga. App. 618, 623 (3) (263 SE2d 505) (1979). Accordingly, the trial court correctly denied this motion for mistrial.

4. The trial court’s admission into evidence of testimony concerning appellant’s habit of using vulgar language when intoxicated is enumerated as error.

“The objection to this testimony, without further specification, was that it was irrelevant. . . . An objection to evidence on the ground that it is irrelevant ... is ‘entirely too vague and general to present any question for determination by the trial court, and the overruling of this objection did not constitute reversible error. [Cit.]’ [Cit.]” Croom v. State, 165 Ga. App. 676, 677 (302 SE2d 598) (1983).

5. Appellant enumerates as error the trial court’s refusal to give a requested charge on the misdemeanor offense of reckless conduct, OCGA § 16-5-60, as a lesser included offense of aggravated assault.

“Appellant relies on Bowers v. State, 177 Ga. App. 36 (338 SE2d 457) (1985), in which this court held that the trial court erred in refusing to give such a charge. In Bowers, the charge on reckless conduct was appropriate because the jury was authorized to find that the defendant engaged in target practice with a gun while consciously disregarding the risk to the nearby victim. One is guilty of reckless conduct who ‘causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause the harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .’ OCGA § 16-5-60. The crime of reckless conduct is one of criminal negligence. [Cit.]” Riley v. State, 181 Ga. App. 667, 669-670 (353 SE2d 598) (1987). The present case is readily distinguishable from Bowers. The record here shows that appellant, while holding the victims at gunpoint, intentionally fired what he termed “warning shots” into a wall and a trash can. “ ‘Using a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury amounts to an aggravated assault, absent justification. [Cits.] The act [of] appellant was either [an act of insanity] or constituted a felony.’ [Cit.] The jury was fully and completely instructed on [the insanity defense]. The trial court did not err in refusing to give the requested charge.” (Emphasis in original.) Riley v. State, supra at 670. See also Weaver v. State, 185 Ga. App. 573 (365 SE2d 130) (1988).

6. Appellant enumerates as error the trial court’s refusal to charge the jury that “ ‘[t]he act itself may be so utterly senseless and abnormal as to furnish satisfactory proof of a diseased mind.’ [Cits.] The trial court fully charged on the law of insanity and did not err in refusing the requested instruction. There is no merit in this contention.” Wilson v. State, 229 Ga. 224, 225-226 (190 SE2d 78) (1972), overruled on other grounds, Holcomb v. State, 230 Ga. 525 (198 SE2d 179) (1973). See also Freeman v. State, 132 Ga. App. 742, 744 (209 SE2d 127) (1974).

Decided September 7, 1988

Rehearing denied September 21, 1988

William H. Turner, Jr., for appellant.

Frank C. Winn, District Attorney, for appellee.

7. The trial court correctly refused to charge the jury on the principle of jury nullification. See generally Harris v. State, 190 Ga. 258, 260 (6) (9 SE2d 183) (1940); Bryant v. State, 163 Ga. App. 872 (1) (296 SE2d 168) (1982).

8. The trial court’s making of what appellant asserts to be an impermissible comment on the evidence while recharging the jury is enumerated as error. A review of the record shows, however, that the trial court made no comment on the evidence, but merely gave, pursuant to the jury’s request, an additional instruction. “When the jury is confused and in doubt and requests further instructions on a particular point, it is the duty of the court to further instruct them. [Cits.]” Freeman v. State, 142 Ga. App. 293, 294-295 (235 SE2d 560) (1977).

9. All remaining enumerations not specifically addressed have been considered and have been found to be without merit.

10. Appellant’s convictions for the kidnapping of the three women who were already in the office when he entered are reversed for the reasons set forth in Division 1. Appellant’s remaining convictions are affirmed.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Sognier, J., concur.


text:
    74483, 74484.
    EMORY UNIVERSITY v. HOUSTON; and vice versa.
    (373 SE2d 236)
   Beasley, Judge.

On certiorari our decision affirming in part and reversing in part the trial court in Emory Univ. v. Houston, 185 Ga. App. 289 (364 SE2d 70) (1987) was reversed in Emory Clinic v. Houston, 258 Ga. 434 (369 SE2d 914) (1988). Accordingly, our decision is vacated insofar as it conflicts with that of the Supreme Court and the judgment of the Supreme Court is made the judgment of this court.

Decided September 21, 1988.

Sidney F. Wheeler, J. M. Hudgins IV, Earl W. Gunn, for appellant.

Timothy R. Brennan, Taylor W. Jones, for appellee.

Judgment affirmed in part, reversed in part, and case remanded.

McMurray, P. J., and Sognier, J., concur.


text:
    76502.
    In the Interest of S. M.
    (373 SE2d 280)
   McMurray, Presiding Judge.

The mother of S. M. appeals from an order of the juvenile court terminating her parental rights in the child.

S. M. was born on April 10, 1982. On July 26, 1982, S. M. was placed in her first foster home. Thereafter, S. M. has been in the continuous custody of the DeKalb County Department of Family and Children Services.

Since the child has been in the custody of the department the mother has had a sporadic record of visitation. The mother had three visits in 1983, five visits in 1984, and two visits in 1985. The mother did not visit or make any attempt to see the child for a period of 20 months from April 1985 through December of 1986. All of the visits which did occur were due to the efforts of the department where the caseworker took the child to the mother’s home.

During the years the child has been in the custody of the department, the mother has abused alcohol, failed to obtain employment, and failed to obtain a safe and stable home.

The department introduced evidence of 10 different case reviews and plans for improvement designed to facilitate the return of custody of S. M. to the mother. However, the mother made no progress toward the goals established therein.

Based on these facts, the juvenile court terminated the parental rights of the mother to S. M. The mother appeals from the judgment of the juvenile court. Held:

“The termination of parental rights is a decision of drastic significance which requires deliberate scrutiny and caution. In re N. F. R., 179 Ga. App. 346, 348 (346 SE2d 121) (1986). It is done based only on clear and convincing evidence. Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982). On review of such a decision, the standard

Decided September 21, 1988.

Chandler R. Bridges, for appellant.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

is whether after viewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. Blackburn, supra at 694.” In the Interest of J. L. Y., 184 Ga. App. 254, 255 (1) (361 SE2d 246). We find that the evidence in the transcript and detailed in the juvenile court’s order constitutes clear and convincing evidence which authorized the juvenile court to reach its determination of parental misconduct or inability, and that termination is in the child’s best interest. There is no lack of evidence as to the mother’s present circumstances. There is clear and convincing evidence that the child’s past deprivation will continue. Compare In re N. F. R., 179 Ga. App. 346, 348, 349 (2) (346 SE2d 121). Contrary to the mother’s contention the development of successive case plans for reuniting mother and child did not produce any deprivation of due process of law or conflict of interest. In re J. S. C., 182 Ga. App. 721 (356 SE2d 754), may be distinguished on the facts. Also, the transcript and juvenile court’s order show compliance with OCGA § 15-11-90 (a) and that there was no suitable family member with whom the child could have been placed. The juvenile court was authorized by the evidence to terminate the mother’s parental rights in the child. OCGA § 15-11-81; In re R. L. Y., 184 Ga. App. 69 (360 SE2d 636); In the Interest of B. M., 184 Ga. App. 291 (361 SE2d 269); In re G. M. N. & D. M. N., 183 Ga. App. 458 (359 SE2d 217); In re J. L. L. & M. A. M., 179 Ga. App. 313 (346 SE2d 106).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76763.
    WILLIAMS v. THE STATE.
    (373 SE2d 281)
   McMurray, Presiding Judge.

Defendant was convicted of the offense of robbery. The evidence at trial was as follows:

At about 3:15 during the morning of July 19,1986, the victim and her “four-year-old child . . .” drove into the “Racetrac filling station . . . .” on Jonesboro Road to purchase gasoline. After the victim fueled her vehicle, she entered her car and defendant approached the driver’s window and asked the victim for a ride. She refused and defendant displayed a knife, threatened the victim with a gun and demanded a ride. Again, the victim did not comply and defendant “climbed through the [car] window . . .” and attempted to gain control of the vehicle. During the struggle the victim “pulled the car in drive and . . . raced the motor . . . ,” causing the vehicle to collide into a “pole” at the filling station. After the collision, defendant attempted to engage the vehicle’s damaged engine and the victim tried to escape with her child. However, the car did not start and defendant grabbed the victim’s purse, “waving the knife and he took off running.”

Shortly thereafter, Officer G. H. Hooper of the Atlanta Police Department arrived at the scene, obtained a description of defendant and was directed to the area where defendant was observed fleeing. The officer began a vehicular surveillance and, after patrolling the area, spotted defendant “standing behind” a nearby “Spur service station,” observed that defendant matched the description of the assailant and “noticed that [defendant] was sweating rather profusely . . .” Officer Hooper approached defendant, identified himself and requested defendant’s identification. Defendant complied and Officer Hooper informed defendant that he matched the description of a man who had committed a robbery at the Racetrac filling station. Defendant denied involvement in the crime and agreed to accompany the officer back to the scene of the crime. After defendant returned with Officer Hooper, the victim immediately identified defendant as the perpetrator of the robbery. Defendant was then placed under arrest and a search of defendant at the scene revealed several items that were contained in the victim’s purse. From this and other evidence adduced at trial, defendant was found guilty of the crime charged. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first contends the trial court erred in denying his motion to suppress, arguing that “there was no specific, reasonable and articulable facts to support Officer Hooper stopping and questioning [defendant].” We do not agree.

“ ‘It is clear that in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention.’ Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294). It is also clear that what is a ‘reasonable articulable ground’ for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. Brisbane v. State, 233 Ga. 339, 342, supra. Each case depends on its own facts. ‘The point at which the routine protection of the public becomes an invasion of the right of privacy of the individual must rest on the particular circumstances involved.’ Anderson v. State, 123 Ga. App. 57, 61 (179 SE2d 286).” Allen v. State, 140 Ga. App. 828, 829 (1), 830 (232 SE2d 250).

In the case sub judice, Officer Hooper arrived at the scene less than an hour after the robbery, was given a general description of the perpetrator and was directed to the area where the perpetrator was observed fleeing the scene. No more than 20 minutes after Officer Hooper interviewed the victim, he observed defendant behind a filling station that was “a little better than a quarter of a mile” from the crime scene. Defendant was “sweating rather profusely ...” and he matched the general description of the perpetrator given by the victim. Considering these specific and articulable facts and in light of the time and place in which defendant was observed, we find reasonable Officer Hooper’s suspicion that defendant was involved in the robbery. Thus, the officer was authorized to stop defendant and briefly detain him for the purpose of further investigation. See Butts v. State, 149 Ga. App. 492 (2) (254 SE2d 719), and Baker v. State, 170 Ga. App. 700 (1) (318 SE2d 178). The trial court did not err in denying defendant’s motion to suppress.

2. Next, defendant contends the “show-up” identification that was conducted less than two hours after the robbery was overly suggestive and violated his rights under the United States Constitution. This contention is without merit. “ ‘ “(P)racticalities inherent in this type of situation suggest that an immediate on-the-scene confrontation between victim and suspect is essential both to law enforcement and to fairness toward innocent suspects.” (Cit.)’ Walker v. State, 139 Ga. App. 751 (1) (229 SE2d 546) (1976). Boyd v. State, 168 Ga. App. 246 (2) (308 SE2d 626) (1983).” Manora v. State, 179 Ga. App. 791, 792 (3) (347 SE2d 727). Moreover, considering the victim’s opportunity to observe her assailant during the robbery and considering two eyewitnesses who corroborated the victim’s identification of defendant as the perpetrator, we find that there was little likelihood of misidentification of defendant at the time of trial. Callaway v. State, 257 Ga. 12, 14 (3) (354 SE2d 118).

3. In his third enumeration of error, defendant contends the trial court erred in failing to grant his motion for continuance, arguing that he was prejudiced because “the assistant district attorney trying the case blatantly went against his pre-trial representation ... as to which case [the State] was going to try [first].”

“Our Code provides that cases on the criminal docket shall be called in the order in which they stand on the docket ‘or otherwise in the sound discretion of the Court.’ Code Ann. § 27-1301 (Code § 27-1301) [now OCGA § 17-8-1]. This code section is ‘directory and not mandatory . . .’ Rosenbrook v. State, 78 Ga. 111 (2); Barrentine v. State, 136 Ga. App. 802 (3) (222 SE2d 103); In re Pending Cases, Augusta Judicial Circuit, 234 Ga. 264, 268 (215 SE2d 473) (concurring opinion).” Rogers v. State, 155 Ga. App. 685 (1) (272 SE2d 549).

Decided September 21, 1988.

John A. Pickens, for appellant.

Lewis R. Slaton, District Attorney, R. Andrew Weathers, John M. Turner, Joseph J. Drolet, Assistant District Attorneys, for appellee.

In the case sub judice, there is nothing for this court to review since there is no showing of the docket or where defendant’s case was on the docket, or whether it was or was not called in its correct turn. “We will not presume error from a silent record. The defendant has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. Roach v. State, 221 Ga. 783 (4) (147 SE2d 299).” Rogers v. State, 155 Ga. App. 685 (1), supra.

4. In his fourth enumeration of error, defendant contends the trial court erred in overruling his objection to the State’s closing argument that “people like [defendant] is why you ladies can’t walk out in the street at night.” We do not agree. “ ‘Appeals to convict for the safety of the community have been upheld. See Minor v. State, 143 Ga. App. 457 (2) (238 SE2d 582) (1977) and cits.’ Whitaker v. State, 246 Ga. 163, 167 (11) (269 SE2d 436) (1980). Moreover, the State ‘ “may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.” (Cit.)’ Keys v. State, 156 Ga. App. 553, 554 (275 SE2d 128) (1980).” Nebbitt v. State, 187 Ga. App. 265, 268 (4) (370 SE2d 1).

5. In his final enumeration of error, defendant contends the evidence was insufficient to support the jury’s verdict. This argument is without merit. The evidence was sufficient to authorize the jury’s finding that defendant was guilty beyond a reasonable doubt of robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Pope, Judge.

text:
    76786.
    JOHNSON v. THE STATE.
    (373 SE2d 284)
   Pope, Judge.

Defendant Rufus Johnson brings this appeal following his convictions for the offenses of statutory rape (three counts) and child molestation (one count). Held:

1. Defendant first contends that the trial court erred in admitting into evidence his in-custody statement, in which defendant admitted he engaged in sexual intercourse with the three minor victims and molested a fourth victim. At the Jackson-Denno hearing conducted prior to the admission of defendant’s statement, it was revealed that the defendant was initially confused as to what constituted the offense of statutory rape; the defendant insisted he had committed no crime because he did not force anyone to engage in sexual intercourse with him. The officer conducting the interview testified at the hearing that he explained to defendant that the crime of statutory rape involved having sexual intercourse with someone under the legal age of fourteen and that issues of consent and force were irrelevant. The officer testified that defendant was repeatedly informed of his rights, that he appeared to understand his rights, that he did not appear to be under the influence of drugs or alcohol and that he had a tenth grade education. The officer also testified that neither threats nor promises were made to defendant in hopes of gaining his confession.

“In deciding the admissibility of a statement during a JacksonDenno hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard.” (Punctuation omitted). Howard v. State, 180 Ga. App. 817 (1) (350 SE2d 825) (1986). “Although not without conflict, the evidence produced at that hearing did support the trial court’s finding that [defendant’s] statement had been freely and voluntarily made. ‘A trial court’s findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld on appeal unless clearly erroneous. (Cit.)’ [Cits.] The trial court did not err in admitting [defendant’s] in-custody statement into evidence.” Hart v. State, 185 Ga. App. 141, 142 (363 SE2d 599) (1987). Accord Gaines v. State, 179 Ga. App. 623 (1) (347 SE2d 673) (1986); see also Sanders v. State, 182 Ga. App. 581 (1) (356 SE2d 537) (1987); Grayer v. State, 181 Ga. App. 845 (4) (354 SE2d 191) (1987); Newsome v. State, 180 Ga. App. 243 (3) (348 SE2d 759) (1986); Jones v. State, 178 Ga. App. 15 (2) (342 SE2d 5) (1986).

2. Defendant also complains of testimony by the mother of one of the victims, contending that such testimony was irrelevant and prejudicial. The record shows, however, that defendant did not object to this testimony at the time it was offered. “ ‘A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ [Cit.]” Sprayberry v. State, 174 Ga. App. 574, 575 (330 SE2d 731) (1985). See also Lovell v. State, 185 Ga. App. 521 (2) (365 SE2d 133) (1988); Hart v. State, supra at (2). This enumeration is without merit.

3. Defendant also enumerates as error the admission of evidence of other crimes, specifically incidences of sexual activity with the victims that were not included in the indictment.

As to the first instance complained of, the record shows that when the prosecutor realized the victim was testifying to an incident that occurred in another county, he immediately discontinued questioning the witness on that occurrence. In overruling defendant’s subsequent motion for mistrial, the trial court noted that defense counsel “sat right there and didn’t say a word, and then you cross-examined her on the same identical thing.” Under these circumstances, we find no error.

As to the second incident complained of on appeal, the record shows that as soon as it was evident that the witness was testifying to activity that occurred in another county, the trial court interrupted the examination of the witness and instructed that such testimony would not be allowed. The prosecutor also advised the witness to limit her testimony to events that occurred in the county in which the defendant was being tried. This enumeration affords no basis for reversal.

4. Defendant also challenges the sufficiency of the evidence (second enumeration) and, in a related argument, contends his conviction must be reversed because it was based on false testimony (fifth enumeration). As to these enumerations the record shows that several of the victims denied at trial that they had sex with the defendant, in contradiction to earlier statements given by them. The record also shows that the victims subsequently recanted their denials, testified that they had had sex with the defendant and explained their earlier denials were caused by fear of the defendant who, the record reveals, had contacted several of the victims the night before the trial. Although at trial defendant denied having sexual intercourse with or molesting the victims, their testimony was corroborated by defendant’s in-custody statement and by the testimony of other witnesses.

“If a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” (Emphasis supplied.) OCGA § 24-9-85 (b). “[0]n the question of the wilfulness of [the victims’] false swearing [they were] entitled to explain [their] reasons for doing so, and the jury could consider this explanation in passing on [their] credibility. [Cits.] The jury could have believed [their] explanation that [they] gave a false account of the [crimes] because [they] were afraid of the defendant. . . . Furthermore, [as stated above, their] testimony was corroborated [by both the in-custody statement of the defendant and the testimony of other witness].” (Paragraph indention omitted.) Montgomery v. State, 224 Ga. 845, 848 (165 SE2d 145) (1968). See also Mitchell v. State, 169 Ga. App. 630 (1) (314 SE2d 468) (1984). Consequently, there is no merit to defendant’s argument that this testimony should be disregarded. The evidence was sufficient. Accord Timmons v. State, 182 Ga. App. 556 (356 SE2d 523) (1987); Runion v. State, 180 Ga. App. 440 (1) (349 SE2d 288) (1986); Stewart v. State, 180 Ga. App. 266 (1) (349 SE2d 18) (1986); Newsome v. State, supra at (1).

Decided September 21, 1988.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Judgment affirmed.

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


text:
    76970.
    BENNETT ELECTRIC COMPANY v. SPEARS.
    (373 SE2d 286)
   Beasley, Judge.

The sole issue in this appeal, which was transferred from the Supreme Court, is whether OCGA § 9-12-60 (a) (2) refers to the general execution docket only of the county in which the original judgment was rendered or to the general execution docket of any county in Georgia.

On July 5, 1974, Bennett Electric Company obtained a judgment in the State Court of Fulton County against Spears and his company. A writ of fieri facias issued and on October 25, the execution issued on the judgment was entered on the general execution docket of Fulton County.

On February 11, 1980, and again on April 29, 1986, the execution entered on the judgment was entered on the general execution docket of Glynn County, where Spears owns property. On both occasions, a return of nulla bona was made by the Sheriff of Glynn County and such was entered on the general execution docket of that county. The judgment remained unsatisfied.

Spears filed a complaint seeking cancellation of the judgment as dormant in 1987. The trial court interpreted OCGA § 9-12-60 (a) (2) to require that entry on the execution be made in the county in which the judgment was rendered as referred to in subsection (a) (1) of the statute and ruled that the Glynn entries did not prevent dormancy.

Bennett argues that subsection (a) (2) means the general execution docket of any county in the state and not only the county in which the original judgment was rendered.

OCGA § 9-12-60 (a) provides as pertinent: “A judgment shall become dormant and shall not be enforced: (1) When seven years shall elapse after the rendition of the judgment before execution is issued thereon and is entered on the general execution docket of the county in which the judgment was rendered; (2) Unless entry is made on the execution by an officer authorized to levy return the same and the entry and the date thereof are entered by the clerk on the general execution docket within seven years after issuance of the execution and its record; . . .”

“In construing a statute a primary rule is that the courts must try to ascertain the purpose and intent of the legislature and then try to construe the law to implement that intent. [Cits.]” Mullins v. First Gen. Ins. Co., 253 Ga. 486, 487 (322 SE2d 265) (1984). “ ‘The construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole. . . .’ ” Board of Trustees &c. Fund of Atlanta v. Christy, 246 Ga. 553, 554 (1) (272 SE2d 288) (1980).

Subsections (a) (1) and (a) (2) when read together and in the context of the remainder of the statute make plain that the “entry” referred to in (a) (2) must be in the county in which the judgment was rendered. To hold otherwise would frustrate the purpose and intention of the legislature to provide, for the “protection of the public,” a mechanism for notice so that any interested person could “go to the original entry of the recording of the execution and determine whether or not the execution had become dormant.” Pope v. U. S. Fid. & Guar. Co., 198 Ga. 304, 307 (31 SE2d 602) (1944), later appeal, 200 Ga. 69 (35 SE2d 899) (1945). Otherwise such a person would have to check the docket of all one hundred fifty-nine counties because when the statute was enacted, and still today, there was no statewide comprehensive recording system. As repeated in Pope, supra: “ ‘The construction [of a statute] must square with common sense and sound reasoning.’ ” Such an interpretation comports with the statute’s predecessors requiring entries on the general execution docket of the originating court, to continue judgment vitality. Neely v. Ward, 26 Ga. App. 588 (107 SE 79) (1921); Oliver v. James, 131 Ga. 182 (62 SE 73) (1908). The latter case recognizes that the purpose of the framers of one of these predecessor acts was that “the execution docket of the court should affirmatively show, without further investigation or inquiry elsewhere, whether a judgment is alive, dormant, or dead.” Id. at 186. It also fits in with the rest of the scheme, which in subsection (c) requires re-recording to be noted on the original execution.

Contrary to appellant’s assertion, this construction works no hardship or inequity on judgment creditors in general. But all that is necessary is to record the returns from the other counties on the general execution docket of the county of the judgment-issuing court.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.

Decided September 21, 1988.

W. Fred Orr II, James G. Edwards II, for appellant.

John C. Williams, William E. Dismer, for appellee.