text:
    76459.
    MOORE et al. v. GOLDOME CREDIT CORPORATION et al.
    (370 SE2d 843)
   Birdsong, Chief Judge.

This is an appeal from the order of the superior court granting summary judgment to the appellee Goldome Credit Corporation (GCC). Appellants assert that the trial court erred in concluding that appellee GCC was a holder in due course, and that GCC was not a holder in due course and thus was subject to the claims which appellant had against KBS Homes. Moreover, appellant asserts that appellee GCC’s motion for summary judgment specifically relied upon the non-existence of any agency relationship between GCC and KBS, and speculates that the trial court’s order “was based solely on the theory that since GCC had no agency-employment relationship then [appellant’s] ‘personal defenses’ [of fraud in the inducement and failure of consideration] were not available against GCC’s status as HIDC.” Finally, appellants assert that GCC’s status as a HIDC is immaterial as GCC waived all benefits or advantages thereof by virtue of a waiver clause contained in the security agreement which it was assigned by KBS.

Appellants contracted with KBS Homes to purchase a partially prefabricated “Cedric” model home, which was to be erected on appellants’ land. Appellants, during the course of their transaction with KBS, executed a certain note, security agreement, and other security paper. The security agreement was subsequently assigned to the appellee. The document contained the required notice that “ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER. . . .” It is averred that KBS constructed another model home on appellants’ property, using defective materials. Appellant subsequently brought suit against both KBS and GCC, alleging that “KBS was an agent of Goldome.” In their complaint appellants aver fraud, fraudulent misrepresentation, and give notice of failure of consideration. Appellants seek the remedies of rescission of the loan documents, damages, and temporary and permanent injunctive relief to preclude foreclosure of the security instruments. KBS did not file defensive pleadings and is in default. GCC answered and counterclaimed. Subsequently, GCC filed a motion for summary judgment. Appellants did not respond to the motion, instead relying on the information already before the trial court and their complaint which was sworn to before a notary by appellant Mary Frances Moore.

Appellants enumerate as error that the trial court erred by granting summary judgment in favor of appellee GCC. Held:

Appellee asserts that appellants failed to follow certain procedural rules found in the Uniform Rules of Superior Courts. Although appellants apparently failed to comply with the technical provisions of Rules 6.2 and 6.5, Uniform Rules for the Superior Courts, particularly by failing to file any affidavit or similar responsive material to appellee’s motion for summary judgment, this failure does not entitle appellee automatically to receive favorable consideration of his motion. Rather, it results in the appellants losing a very valuable opportunity to persuade the trial court in their favor. See generally Spikes v. Citizens State Bank, 179 Ga. App. 479 (1) (347 SE2d 310), holding that “appellant’s failure to comply . . . resulted in his loss of opportunity to persuade the trial court. . . . Since appellant failed to comply in any way with the [r]ules ... he cannot be heard to complain that the wheels of justice have rolled over him.” “[0]n summary judgment, the movant has the burden of showing ‘there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.’ [Cit.] When, as in the instant case, the movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint.” Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637). In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Bridges v. Interstate Truck Leasing, 171 Ga. App. 361 (319 SE2d 531); see Dickson v. Dickson, 238 Ga. 672, 675 (235 SE2d 479), citing Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442).

Appellee also attacks appellants’ complaint as being inadequately verified for summary judgment purposes. A properly verified pleading containing specific factual allegations “must be considered in opposition to affidavits filed in support of a motion for summary judgment and may defeat the motion.” Davis & Shulman’s, Ga. Practice & Procedure (5th ed.), Complaints, § 7-17, citing Foskey v. Smith, 159 Ga. App. 163, 164 (283 SE2d 33), cert. vacated, 249 Ga. 32 (289 SE2d 248). However, a verified pleading has no greater effect than an affidavit tendered pursuant to OCGA § 9-11-56 (e), and must comply with the Rule 56 (e) requirement that both supporting and opposing affidavits shall be made on “personal knowledge.” Foskey, supra at 164.

In this case, appellant Mary Frances Moore attempted to verify the complaint in the following manner: “[T]he undersigned . . . after being duly sworn on oath deposes and says that the facts contained in the . . . petition are true and correct to the best of her knowledge and belief.” Unsworn allegations in pleadings that have not been admitted by the opposing party are not evidence for purposes of summary judgment resolution, Behar v. Aero Med Intl., 185 Ga. App. 845 (366 SE2d 223), nor do they rise to that level merely because an attempt has been made to verify the pleadings, not upon personal knowledge, but upon “ ‘ “the best of [affiant’s] knowledge” [and belief], which is just a variation of our old friend “information and belief.” ’ ” Spires v. Relco Inc., 165 Ga. App. 4 (2) (299 SE2d 58); see Carter v. Hayes, 214 Ga. 782 (2) (107 SE2d 799); Stinchcomb v. Hoard, 221 Ga. 77, 80 (143 SE2d 174). Thus, we conclude that the appellants’ pleadings were not adequately verified so as to meet the requirement of personal knowledge, and therefore could not be considered on equal footing with an affidavit in resolution of the motion for summary judgment. However, “[t]he requirement of personal knowledge . . . may be met where the contents of the pleading indicate that material parts of it are statements within the personal knowledge of the party. Spires, supra at 5. To the extent appellants’ complaint meets this test, we will give those factual statements due consideration.

Applying the above rules, we conclude that no genuine issue of material fact exists regarding the question of appellee’s liability on any theory of principal-agent relationship existing between appellee GCC and the builder KBS.

Decided June 21, 1988.

E. Herman Warnock, for appellants.

Thomas H. Hinson II, for appellees.

Appellants have expressly asserted, for the first time on appeal, that appellee has waived its holder in due course status, pursuant to the terms of the security documents of which it is an assignee. This assertion is not without certain merit. But, our review of appellants’ complaint discloses that suit was not instituted against the appellee on that express ground or on any ground anchored on appellee’s status as an assignee of the security documents. In fact, a review of the pleadings shows on their face a complete absence of an averment of any justiciable issue concerning the assignment of the security documents. “The Civil Practice Act abolished ‘issue pleading,’ substituted in lieu thereof ‘notice pleading,’ authorized the pleading of conclusions, and directed that ‘all pleadings shall be construed so as to do substantial justice.’ ” Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287 (5) (241 SE2d 256). The test to be applied in determining whether the complaint states a specific claim for relief under which the plaintiff may recover is whether on its four corners the complaint “places the defendant on notice of the claim against him.” See Walton v. James & Dean, Inc., 177 Ga. App. 77 (1) (338 SE2d 516); Acker v. Veal, 183 Ga. App. 297 (359 SE2d 7). We find that appellants’ pleadings were not sufficient to place appellee on notice of any claim grounded on waiver of holder in due course status whether arising by virtue of the terms contained in the assigned security documents or otherwise. Accordingly, we need not resolve the merits of appellants’ contention at this time. We are satisfied that in view of the somewhat limited scope of appellants’ notice pleadings, as above discussed, the trial court did not err in granting summary judgment to the appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    76514.
    HOLDEN v. THE STATE.
    (370 SE2d 847)
   Carley, Judge.

Appellant was tried before a jury and found guilty of the offense of child molestation. Appellant appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. A witness for the State was allowed to give certain testimony over appellant’s relevancy objection. The trial court’s failure to sustain the objection so as to disallow the testimony is enumerated as error.

“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. [Cits.]’ [Cit.] . . . [Appellant also] argues that the testimony should not have been admitted on grounds not raised at trial. ‘ “A reason why evidence should not be admitted will not be considered on appeal unless the reason was urged below.” [Cits.]’ [Cit.]” Croom v. State, 165 Ga. App. 676, 677 (3) (302 SE2d 598) (1983).

2. The step-sister of the victim was allowed to testify that she too had been sexually molested by appellant. This testimony was admitted for the limited evidentiary purpose of showing appellant’s course of conduct and his common design of child abuse. Over appellant’s hearsay objection, a child counselor was then allowed to testify that the victim’s step-sister had told her of having been molested by appellant. Appellant enumerates as error the trial court’s admission into evidence of the counselor’s testimony.

Under the authority of OCGA § 24-3-16, it has been held that prior consistent out-of-court statements of the victim concerning the sexual abuse suffered at the hands of the defendant are not susceptible to a hearsay objection. See Reynolds v. State, 257 Ga. 725 (1) (363 SE2d 249) (1988); Lovell v. State, 185 Ga. App. 521, 522 (2) (365 SE2d 133) (1988). See also Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). It is undisputed that the victim’s step-sister was under the age of fourteen and that she was available for the purposes of cross-examination. Appellant does not contest the trial court’s finding that the circumstances surrounding the statement which was made by the victim’s step-sister to the counselor provided “sufficient indicia of reliability.” Accordingly, the only issue for determination is whether OCGA § 24-3-16 extends to out-of-court statements concerning sexual abuse that have been made by a child under the age of 14 who is not the actual victim in the case.

“When a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it but must construe it according to its terms. [Cits.]” Richmond County Bd. of Tax Assessors v. Ga. R. Bank &c. Co., 242 Ga. 23, 24 (247 SE2d 761) (1978). By its own terms, the hearsay exception created by OCGA § 24-3-16 applies to statements made by “a child under the age of 14 years.” Nowhere in the text of the statute itself or in its preamble did the legislature implicitly or explicitly limit the statute’s applicability to those statements which have been made by a child who is under the age of 14 and who is also the victim, in the criminal action. Accordingly, we hold that the hearsay exception that is created by OCGA § 24-3-16 applies to the out-of-court statements made by a child under the age of 14 concerning the sexual abuse that he or she may have suffered, regardless of whether or not the child is the actual victim in the case. It follows that appellant’s enumeration is without merit.

Decided June 21, 1988.

Rickie L. Brown, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    76621.
    WHITT v. THE STATE.
    (370 SE2d 848)
   Carley, Judge.

After a bench trial, appellant was found guilty of aggravated assault but mentally ill. Appellant appeals from the judgment of conviction and sentence entered by the trial court on its finding of guilty but mentally ill. In his sole enumeration of error, appellant raises the general grounds. He urges that the evidence demanded a finding that, at the time of the crime, he could not distinguish right from wrong.

At trial, there was expert opinion testimony that appellant suffered from chronic schizophrenia. There was also lay testimony that appellant had acted somewhat crazed on the day of the crime. There was, however, no affirmative evidence that appellant lacked the ability to distinguish between right and wrong at the time he committed the act. “In reviewing a verdict of guilty but mentally ill in a case where the defense is not guilty by reason of insanity, this court determines whether, construing the evidence in favor of the verdict, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime. [Cit.] The only two situations authorizing a verdict of not guilty by reason of insanity are where the defendant does not have the ability to distinguish between right and wrong at the time of the crime, OCGA § 16-3-2, and where at the time of the crime the defendant acted under a delusional compulsion which overmastered his will to resist committing the crime, OCGA § 16-3-3. We conclude that under the foregoing evidence, a rational trier of fact could have found that the defendant did not show by a preponderance of the evidence that [he] was legally insane at the time of the [crime]. [Cits.]” Caldwell v. State, 257 Ga. 10, 11 (1) (354 SE2d 124) (1987). See also Wilson v. State, 257 Ga. 444, 449 (11) (359 SE2d 891) (1987). Compare Stevens v. State, 256 Ga. 440 (350 SE2d 21) (1986).

Decided June 21, 1988.

Robert G. Rubin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, L. Dee Williams, Assistant District Attorneys, for appellee.

Based upon a review of the entire record, we find from the evidence produced at trial that a rational trior of fact could have found appellant guilty but mentally ill beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: McMurray, Presiding Judge. Pope, Judge,

text:
    75782.
    CHEWS v. THE STATE.
    (371 SE2d 124)
   McMurray, Presiding Judge.

In the summer of 1986 Gregory Lewis was approached in a Ft. Lauderdale, Florida pool hall by a young woman known to him as “Cathy.” She told Lewis that he could make some money if he called a certain telephone number and asked for “Dred.” Lewis dialed the number and spoke with an individual who identified himself as “Dred.” Dred told Lewis to rent an automobile and leave it overnight in a K-Mart parking lot in Ft. Lauderdale. Lewis was not able to rent an automobile himself (he did not have a credit card), so a friend, Lisa Walker, rented one for him.

Lewis took the automobile to the K-Mart parking lot and left it (with the keys) pursuant to Dred’s instructions. The following morning, July 27, 1986, Lewis retrieved the automobile and found a map inside of it. The route to Macon, Georgia was highlighted on the map. Lewis picked up two friends, Louvenia Johnson and Errol Hines, and left for Macon. That afternoon, he was stopped for speeding in Crisp County.

The suspicions of the officer who stopped Lewis for speeding were aroused when he learned that the person who rented the automobile was not traveling with Lewis and that the rental agreement contained a provision that the automobile was not to be driven outside of Florida. The officer asked Lewis if he could search the automobile and Lewis gave his consent. During the search, a quantity of cocaine was discovered in a brown bag under the rear seat. Lewis and his friends were arrested and taken to the Crisp County jail.

Georgia Bureau of Investigation (“GBI”) agent John Whitaker spoke with Lewis in the jail. He explained that Lewis could help himself and his friends if he was willing to cooperate with the GBI. Lewis was willing.

A team of GBI agents was assembled for a “drug bust.” The plan called for Lewis to make his delivery in Cordele, instead of Macon. To achieve that end, Lewis telephoned Dred and told him that his automobile had broken down in Cordele. Meanwhile, adjoining rooms were taken by the GBI at the Cordele Ramada Inn. At about 10:45 p.m., Lewis again phoned Dred. In that conversation, Lewis told Dred that he was in Room 208 at the Ramada Inn. Dred replied that he would send a man to make the pickup in Cordele. He also told Lewis that the man would use the name “Dred” when he came to the door.

At about 12:20 a.m. on July 28,1986, two automobiles pulled into the parking area of the Cordele Ramada Inn. The lead automobile was a Buick; it was driven by Bobby Turner. The second was a Lincoln; it was driven by defendant Chews. There were two passengers in the Lincoln: Robert Paul Robertson and Deborah Tracie Cowins.

The Buick parked near Room 208. Simultaneously, the Lincoln approached the registration area. Robertson got out of the Lincoln, went to the night registration window and asked the motel clerk where Room 208 was located. When Robertson returned, the Lincoln left the Ramada Inn and proceeded down the highway.

A GBI agent ascertained the nature of Robertson’s inquiry and concluded that the occupants of the Lincoln were “involved.” He followed the Lincoln to the Colonial Inn. There, defendant Chews, Robertson and Cowins were arrested. At the time of the arrest Robertson produced identification showing his name to be “Henry Booker.”

Each occupant of the Lincoln was asked what they were doing in Cordele. Defendant replied that they were going to buy shoes in Miami, Florida and Nashville, Tennessee; Robertson responded that they were on their way to a shoe show in Lakeland, Florida; Cowins said they were visiting defendant’s aunt in Cordele.

A search of the Lincoln revealed $11,720 in cash and a loaded pistol. The cash was in the following denominations: 16 one hundred dollar bills, 27 fifty dollar bills, 412 twenty dollar bills, 51 ten dollar bills and 4 five dollar bills. Defendant stated that the money was his; he said he borrowed the pistol from a friend.

In the meantime, Turner exited the Buick and went to Room 208. Using the name “Dred,” Turner entered the room. He gave Lewis $200 and took a package which Lewis pointed out to him. At that point, the GBI agents entered the room and arrested Turner. Searching Turner, the agents found a one dollar bill and some change.

Defendant, along with Bobby Lewis Turner, Robert Paul Robertson and Deborah Tracie Cowins, was indicted for trafficking in cocaine and for conspiring to traffic in cocaine. Bobby Lewis Turner and Robert Paul Robertson entered pleas of guilty to the lesser offense of Possession of Cocaine with intent to distribute. At defendant Chews’ separate trial, evidence was introduced to show that on July 27, 1986, a “Henry Booker” checked into a Howard Johnson motel in Macon; that on the same day, Deborah Cowins was also registered there; and that the motel registration cards showed “Booker” to be driving a 1985 Lincoln and Cowins to be driving a 1986 Buick. The evidence also demonstrated that long distance telephone calls were made from the room registered to “Booker”; and that one of the calls was made to the same number at which Lewis reached Dred. Finally, the evidence showed that sales of cocaine are usually made in increments of $20.

Defendant took the witness stand on his own behalf. He testified that he owned a shoe business in Huntsville, Alabama and that at the time of his arrest he was on a trip to buy shoes in Florida and Tennessee; that he had been selling shoes to persons between the ages of 10 and 19 and that he was making the trip in order to put in a whole new line of shoes; that he took cash on the trip because he had written bad checks in the past and wholesalers would only deal with him on a cash basis; that in addition to buying shoes, he was going to use the money to cover the bad checks he had written; that he borrowed the gun for the trip because he was carrying such a large amount of cash; that Robertson worked for him occasionally and that Cowins worked for him on a part-time basis; and that Robertson went on the trip to help load shoes while Cowins went along to help select ladies’ shoes.

Defendant also testified that Turner was Cowins’ boyfriend; that on July 27, 1986, Turner and Cowins were fighting because he (defendant) was trying to “make it” with Cowins; that Turner left the Howard Johnson motel in Cowins’ automobile and that he was following Turner to get Cowins’ automobile back for her; that he followed Turner all the way to the Ramada Inn in Cordele; that he gave up the chase at that point because Cowins said to “forget about him”; and that he was planning to “make it” with Cowins at the Colonial Inn when he was arrested by the GBI.

Finally, defendant testified that he was drunk when he took a room with Robertson at the Howard Johnson motel in Macon; that he did not know what name was used to register for the room; that he could not remember whether he spent the night in the Macon motel before he left to follow Turner; and that he did not know what Robertson said to the motel clerk at the Ramada Inn in Cordele.

Upon the conclusion of the trial, the jury returned guilty verdicts upon the trafficking and conspiracy charges. Determining that the convictions merged, the trial court sentenced defendant to serve 30 years (15 in confinement) for the offense of trafficking in cocaine. Defendant moved for a new trial. The new trial motion was overruled and defendant appealed. Held:

1. In his first enumeration of error, defendant contends the evidence was insufficient to support the verdicts. In this regard, defendant argues that the only evidence implicating him was circumstantial and that that evidence does not exclude every reasonable hypothesis except defendant’s guilt.

“ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ OCGA § 24-4-6. ‘This does not mean that the (S)tate must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence.’ Robinson v. State, 168 Ga. App. 569, 571 (309 SE2d 845) (1983). Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the jury. ‘(T)his court will not substitute its judgment as to what is a reasonable hypothesis for that of the jury or the trial court.’ Id. Neither is the jury obliged to accept defendant’s explanation of circumstantial facts. Barfield v. State, 160 Ga. App. 228 (3) (286 SE2d 516) (1981). ‘After having heard the witnesses and having observed them testify, (the jury is) more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant’s statement, than is a court of law.’ Bogan v. State, 158 Ga. App. 1, 3 (279 SE2d 229) (1981).” Henderson v. State, 184 Ga. App. 834, 835, 836 (363 SE2d 52).

In our view, the circumstantial evidence of defendant’s guilt was overwhelming. Compare Rutland v. State, 129 Ga. App. 313 (199 SE2d 595). It was more than sufficient to enable the jury to find defendant guilty of the crimes charged beyond a reasonable doubt. Heath v. State, 186 Ga. App. 655 (368 SE2d 346). See Henderson v. State, 184 Ga. App. 834, 836, supra; Phillips v. State, 185 Ga. App. 54 (363 SE2d 283). The jury was not required to accept defendant’s version of the facts. Phillips v. State, 185 Ga. App. 54, supra.

2. Relying upon OCGA § 24-3-5, defendant contends the trial court erred in admitting the statements of Robertson and Cowins into evidence. In this regard, defendant points out that the statements (as to what defendant, Robertson and Cowins were doing in Cordele) were made after the three conspirators were taken into custody. Thus, defendant argues, the statements were inadmissible against him because they were not made “during the pendency of the criminal project.” OCGA § 24-3-5. We disagree. The rule is that a conspiracy does not necessarily end simply because one or more of the conspirators have been arrested. Mooney v. State, 243 Ga. 373, 392 (254 SE2d 337). ‘[S]o long as the conspiracy to conceal the fact that a crime has been committed or the identity of the perpetrators of the offense continues, the parties to such conspiracy are to be considered so much a unit that the declarations of either are admissible against the other.’ [Cit.]” Evans v. State, 222 Ga. 392, 402 (150 SE2d 240). At the time the statements were made by Robertson and Cowins the conspirators were trying to conceal the fact that a crime was committed and that they were involved in the crime. In fact, the statements themselves were an attempt by Robertson and Cowins to cover up the fact that they were conspiring to traffic in cocaine.

3. In his third enumeration of error, defendant contends the trial court erred in restricting his cross-examination of witnesses during a motion to suppress hearing. Even if defendant’s right of cross-examination was unduly restricted during the hearing, defendant cannot demonstrate harm since he does not contend that the overruling of his motion to suppress was error. See Owens v. Svc. Fire Ins. Co., 90 Ga. App. 553 (3) (83 SE2d 249). The third enumeration of error is without merit.

4. The assistant district attorney, in his closing argument, stated the following: “[Defendant] said he sold shoes to certain age groups, he sold them from 10 to 19. I thought shoes came in sizes. I didn’t think shoes came in age groups. Now, different age group folks may like different styles but I submit to you that those same young folks that he was using to do the running around is some of the same young folks he was using to sell the cocaine to, some of those from 10 to 19.” This statement prompted defense counsel to object and move for a mistrial. The motion was overruled without curative instructions.

Defendant asserts the trial court erred in permitting the assistant district attorney to make the foregoing argument. We disagree. A prosecutor is permitted to argue inferences from the evidence, even if such inferences are remote, illogical or unreasonable. Hunt v. State, 180 Ga. App. 103, 106 (3) (348 SE2d 467); Callahan v. State, 179 Ga. App. 556, 563 (347 SE2d 269). Given the facts of this case, we find the inference drawn by the assistant district attorney to be a permissible one. Lee v. State, 181 Ga. App. 570, 571 (2) (353 SE2d 67). The trial court did not abuse its discretion in denying the motion for mistrial. O’Neal v. State, 170 Ga. App. 637, 638 (2) (318 SE2d 66).

5. The trial court did not err in refusing to permit defense counsel to state, during closing argument, that no telephone calls had been placed from defendant’s house or business in Huntsville, Alabama, to the telephone number at which Dred had been reached. No such fact was introduced at the trial and no such inference can be drawn from the record. See generally Patterson v. State, 124 Ga. 408, 409 (52 SE 534).

6. The trial court charged the jury: “[T]he law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law also recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, then the possession is sole. If two or more persons share actual or constructive possession of a thing, then the possession is joint. The jury would be authorized to convict only if they should find beyond a reasonable doubt that the defendant knowingly had actual or constructive possession either alone or jointly with others.”

In his seventh enumeration of error, defendant contends the trial court’s charge was erroneous since OCGA § 16-13-31 (a) only speaks in terms of “actual” possession of cocaine. In its decision in Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574), the Supreme Court held that the trial court erred in charging that a trafficking in cocaine conviction was authorized if the jury found beyond a reasonable doubt that defendant had actual or constructive possession of cocaine. The charge in Lockwood v. State, 257 Ga. 796, supra, was nearly identical to the trial court’s charge in the case sub judice. Accordingly, Lockwood v. State, 257 Ga. 796, supra, mandates our holding that in the case sub judice the trial court erred in its charge to the jury and the conviction must be reversed. Lockwood v. State, 257 Ga. 796, supra. In deference to the learned trial judge, we note that the trial in the case sub judice took place prior to the date of the Supreme Court’s decision in Lockwood v. State, 257 Ga. 796, supra.

7. The trial court charged the jury that witnesses are presumed to speak the truth unless they are impeached as provided by law. Such a charge is not erroneous; it can be misleading, however, and our Supreme Court has recommended that it no longer be used. See Noggle v. State, 256 Ga. 383, 385 (4) (349 SE2d 175). Accordingly, this charge should not be employed upon a retrial.

8. In the remaining enumeration of error, defendant contends the trial court erred in denying his motion for a continuance. This alleged error is not likely to recur upon a retrial and it need not be considered.

Judgment reversed.

Benham, J., concurs and also concurs specially. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

Although I agree that the charge as given requires reversal in this case, I am compelled nevertheless by what I perceive as continued confusion in this area to elaborate on why the erroneous charge necessitated the reversal here, in hopes of avoiding this problem in future cases.

Decided June 22, 1988.

Richard E. Thomas, Harvey D. Harkness, for appellant.

In Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988) our Supreme Court reiterated the long established maxim that evidence of actual possession is necessary to uphold a conviction of trafficking in cocaine, and held that a charge to the effect that a conviction may be based on either actual or constructive possession constitutes reversible error. Such was the error also committed here. Note, however, that even if the trial court gives a charge on the definition of constructive possession, the conviction may be upheld so long as the court correctly charges that a conviction can be had only upon a showing of actual possession. Raines v. State, 186 Ga. App. 239 (4b) (366 SE2d 841) (1988). However, inasmuch as the charge on the definition of constructive possession is mere surplusage, the better practice would be to eliminate it entirely in cases involving actual possession offenses.

It does not follow, however, that only the perpetrator who has physical custody of illegal contraband can be convicted of the offense of trafficking. Rather, as with other crimes, a conviction may also be had based upon either OCGA § 16-2-20 (party to a crime) or a theory of conspiracy. See, e.g., Thomas v. State, 255 Ga. 38 (2) (334 SE2d 675) (1985); Heath v. State, 186 Ga. App. 655 (1) (368 SE2d 346) (1988); Raines, supra; Ceaser v. State, 184 Ga. App. 599 (362 SE2d 156) (1987); Pryor v. State, 179 Ga. App. 293 (1) (346 SE2d 104) (1986); Ramsey v. State, 175 Ga. Ap. 97 (7) (332 SE2d 390) (1985); Evans v. State, 167 Ga. App. 396 (1) (306 SE2d 691) (1983). Clearly, in the present case the evidence authorized a conviction under either of these theories. Indeed, the record shows that in addition to instructing the jury on the substantive offense of conspiracy, with which defendant was also charged, the trial court also charged the jury that defendant could be convicted as a party to a crime, and correctly charged the jury in the language contained in OCGA § 16-2-20 and § 16-2-21. However, because the trial court also erroneously charged the jury that defendant could be convicted based upon a finding of either actual or constructive possession, we have no way of determining which theory formed the basis of the jury’s decision. Hence, I reluctantly agree that reversal is required.

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

John C. Pridgen, District Attorney, for appellee.


author: Sognier, Judge.

text:
    76489.
    DICKENS et al. v. FIRST CAPITAL INCOME PROPERTIES, LTD., SERIES IX.
    (371 SE2d 130)
   Sognier, Judge.

First Capital Income Properties, Ltd., Series IX (the “Landlord”) instituted dispossessory proceedings against Robert Dickens, Chris G. Nicholson, and Ben J. Cheek. The named individuals answered within the time allowed by law, and denied that any amount of rent was past due and owing, as well as alleging that the Landlord’s tenant was Chewarco, Inc., and not the individuals named in the dispossessory warrant. Before the hearing held on that dispossessory action, the Landlord swore out a second dispossessory warrant covering the same premises, this time naming as defendants Robert Dickens and Chewarco. Dickens was served by tacking and mailing, and service on Chewarco, was accomplished by personally leaving a copy of the summons and affidavit with its registered agent. No answer was filed to this second dispossessory warrant. Both actions were heard on the same date, and the trial court dismissed the first action and entered a default judgment in the second against Chewarco for the past due rent prayed for, awarding the Landlord possession of the premises. Dickens and Chewarco appeal.

1. Appellants contend the trial court erred by granting appellee a writ of possession because the facts in the second action are the same as those in the first, and, therefore, the dismissal in the first action acts as a bar to recovery by appellee in the second action under OCGA § 9-2-5 (a). We do not agree. Assuming without deciding that OCGA § 9-2-5 (a) would constitute a good defense to the second action, appellants’ argument misses the mark insofar as it asserts that the second action was entirely void because of the prior pending action. This is not to be inferred from OCGA § 9-2-5. To the contrary, OCGA § 9-2-5 (a) merely provides that “[i]f two [identical] actions are commenced at different times, the pendency of the former shall be a good defense to the latter.” (Emphasis supplied.) See also Parsons, Brinckerhoff &c. Inc. v. Johnson, 161 Ga. App. 634, 635 (288 SE2d 320) (1982). The proper place for appellants to have asserted their argument based on OCGA § 9-2-5 was as a defense to the second dispossessory. “ ‘The doctrine that a defendant should not be vexed by two or more pending suits for the same cause of action is universally recognized, and a plea in abatement is the proper remedy for obtaining the benefit of that doctrine.’ [Cits.]” Hose v. Jason Property Mgt. Co., 178 Ga. App. 661, 663 (344 SE2d 483) (1986). Thus, we find no merit in appellants’ contention that despite having failed to raise the pendency of the prior action as a defense in the case at bar, this action should nevertheless be barred. It was incumbent upon appellants to answer this action and raise whatever defenses they thought applicable. No answer having been filed, the trial court properly granted judgment by default. OCGA § 9-11-55 (a).

Decided June 22, 1988.

Christopher G. Nicholson, for appellants.

J. Patrick Claiborne, for appellee.

2. Appellants also enumerate as error the refusal of the trial court to include in the record of this appeal the proceedings in the prior dispossessory action. Although no argument or citation of authority is presented as to this enumeration and it is therefore deemed abandoned under Rule 15 (c) (2) of the Rules of this court, we note that those records were not introduced into evidence below. Although a trial court may take judicial notice of records in its own court without the formal necessity of having those records certified and admitted into evidence, see Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984), it is not required to do so. Id. at 108-109. Moreover, appellants never reached that stage of the proceedings where the trial court’s discretion as to such evidentiary matters would be called into play, as their failure to answer within the prescribed time or to open the default necessarily resulted in a judgment against them. See Division 1.

3. Appellee has moved this court to impose a penalty for frivolous appeal pursuant to OCGA § 5-6-6. Appellants having failed to file an answer in this case, “[w]e see no valid reason for [appellants] to have anticipated reversal of the trial court’s findings and judgment; therefore, we must conclude that the appeal to this court was for the purpose of delay only. Accordingly, we hereby grant [appellee’s] motion for damages in the amount of 10 percent of the judgment.” St. Amour v. Roberts, 170 Ga. App. 717, 718 (318 SE2d 313) (1984).

Judgment affirmed with direction.

Deen, P. J., and Carley, J., concur.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    76561.
    JENKINS v. THE STATE.
    (371 SE2d 132)
   Banke, Presiding Judge.

The appellant was convicted of violating the Controlled Substances Act by possessing cocaine with intent to distribute, as well as by possessing marijuana.

The arresting officer testified that he was made aware of information which had been provided to another officer by a confidential informant to the effect that cocaine was being sold from two rooms located at a particular motel; that he and the other officer then proceeded to the motel in the company of the informant to attempt a drug purchase; that, after ascertaining that the informant was not currently in possession of any drugs, they gave her $125 and observed her enter and exit the two motel rooms; and that upon her return she was carrying a plastic bag containing two white colored “rocks” which proved to be cocaine. The arresting officer thereupon obtained a warrant for the search of the two motel rooms; and during the subsequent execution of that warrant, the appellant was present, alone, in one of the rooms. Several plastic bags containing cocaine and a quantity of marijuana were discovered inside a jacket found hanging in the closet of that room. According to the arresting officer, the appellant claimed ownership of the jacket.

On appeal, the appellant contends that the trial court erred in refusing to require the state to disclose the identity of the informant and in failing to charge the jury that he could riot be convicted of possessing the drugs in question absent proof that he knew of their presence in the jacket. Held:

1. The appellant argues that the informant’s testimony would have been material to his defense in that it would have corroborated his testimony that he was not in the motel room at the time the informant made her drug purchases. However, the appellant was not charged with actually selling drugs, and no evidence was introduced suggesting that he had been identified by the informant as one of the persons who was selling drugs from the two motel rooms. Thus, the presence vel non of the appellant in the motel room at the time the informant made her drug purchases was of only tangential relevance to the issues being tried. Weighing the public interest in protecting the free flow of information to law enforcement officers against the right of the accused to a full and fair opportunity to defend himself, we accordingly hold that the trial judge did not abuse his discretion in refusing to order the disclosure of the informant’s identity. See generally Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957); Thornton v. State, 238 Ga. 160, 164-165 (231 SE2d 729) (1977).

2. An examination of the trial transcript reveals that, in charging on the elements of actual and constructive possession, the trial court clearly and unambiguously informed the jurors of the knowledge requirement. Consequently, the appellant’s remaining enumeration of error is also without merit.

Judgment affirmed.

Birdsong, C. J., Been, P. J., McMurray, P. J., Carley, Sognier, Pope, and Benham, JJ., concur. Beasley, J., dissents.

Decided June 22, 1988.

Harry J. Bowden, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, John G. Isom, Assistant District Attorneys, for appellee.

Beasley, Judge,

dissenting.

I respectfully dissent because it is nay view that this appeal should be dismissed for lack of jurisdiction, for the reasons set out in the dissent in Johnson v. State, 182 Ga. App. 477, 479 (356 SE2d 101) (1987).

In the instant case, there is not even a motion made or reason given for the out-of-time appeal. New counsel simply filed an “Out-of-Time Notice of Appeal” on January 29, 1987, after the Sentence Review Panel denied a reduction on November 25 and over eight months after judgment was entered. The trial court allowed it, there being no opposition from the State. Why the standard notice was not or could not have been filed within thirty days does not appear. At the least, even if allowed by law, judicial departures from statutory jurisdictional prerequisites ought not be routine or unexplained.

The Code, the Constitution, and the Uniform Court Rules promulgated in response to the mandate for “the speedy, efficient, and inexpensive resolution of disputes and prosecutions” in Art. VI, Sec. IX, Par. I of the Georgia Constitution of 1983, all exhibit a policy promoting early finality according to an orderly scheme. Open-ended opportunity to appeal disserves this policy.


author: Banke, Presiding Judge.

text:
    76713.
    In the Interest of L. D. J.
    (371 SE2d 133)
   Banke, Presiding Judge.

The appellant was arrested and charged in juvenile court with armed robbery, possession of a firearm during the commission of a crime, pointing a pistol at another, carrying a pistol without a license, carrying a concealed weapon, and theft by receiving stolen property. The juvenile court entered an order transferring the case to superior court for prosecution of the appellant as an adult; and the appellant filed this appeal, contending that there were no reasonable grounds to believe he was not committable to an institution for the mentally ill or mentally retarded, as required by OCGA § 15-11-39 (a) (3) (B), and that the state failed to establish the non-availability of rehabilitative alternatives through the juvenile justice system.

Decided June 22, 1988.

Steven A. Hathorn, for appellant.

John M. Ott, District Attorney, for appellee.

It was shown that the appellant had twice been placed in community-based rehabilitation programs but had failed in both instances to successfully complete the program’s trial period. It was further shown that the appellant had been committed to a Youth Development Center (YDC) as a sentence for prior criminal misconduct, that he had served his maximum sentence there without reduction for good behavior, and that he had been arrested on the present charges while on probation after being released from the YDC. A court services worker who had worked with the appellant prior to his arrest on the present charges testified that the YDC was the harshest treatment alternative available in the juvenile justice system and that if the appellant were sent back to a YDC, the services and treatment available to him would be essentially the same as before. A clinical psychologist who had examined and evaluated the appellant testified that although the appellant was of relatively low intelligence, he was not retarded, and that he “would not be committable to a mental hospital at this time.” There was no testimony to the contrary. Held:

Based on the foregoing evidence, as well as other evidence introduced in support of the transfer motion, the trial court was authorized to conclude that all of the statutory requirements imposed by OCGA § 15-11-39 for the transfer of the case to superior court had been met and that it would be fruitless to attempt further rehabilitative efforts through the juvenile justice system. We accordingly hold that the court did not abusé its discretion in granting the transfer motion. Accord D. T. R. v. State of Ga., 174 Ga. App. 695 (331 SE2d 70) (1985). See also In the Interest of J. J. S., 246 Ga. 617, 618 (272 SE2d 294) (1980).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Birdsong, Chief Judge.

text:
    77260.
    STATE OF GEORGIA et al. v. BALDWIN.
    (371 SE2d 135)
   Birdsong, Chief Judge.

The State brings this direct appeal from a judgment of the Ware County Superior Court affirming the award of the State Board of Workers’ Compensation. Appeals “from decisions of the superior courts reviewing decisions of the [State] Board of Workers’ Compensation” must be made in accordance with the discretionary appeal procedure of OCGA § 5-6-35 (a) (1). The requirements of this code section are jurisdictional and in the absence of compliance, this court is without authority to accept an appeal. Crimminger v. Habif, 174 Ga. App. 440, 441 (330 SE2d 164). As the procedure mandated by OCGA § 5-6-35 was not followed, this appeal must be dismissed. DePass v. Bd. of Review, 172 Ga. App. 561 (324 SE2d 505).

Decided June 22, 1988.

A. Mark Lee, Michael J. Bowers, Attorney General, for appellants.

Rudolph J. Chambless, for appellee.

Appeal dismissed.

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


author: McMurray, Presiding Judge.

text:
    75944.
    JACKSON v. PEACHTREE HOUSING DIVISION OF C. O. SMITH INDUSTRIES et al.
    (371 SE2d 112)
   McMurray, Presiding Judge.

We granted a discretionary appeal in this workers’ compensation case. The issues are threefold: (1) Whether claimant’s request for a change in condition was barred by the statute of limitation? (2) Whether the evidence supports the award of the board denying claimant’s request for a change in condition? (3) Whether the board properly awarded claimant rehabilitation benefits?

Claimant, a truck driver, suffered a compensable injury to his back on February 25, 1980. The employer/insurer accepted claimant’s workers’ compensation claim and he was paid income benefits beginning on February 25, 1980. On August 21, 1980, benefits were suspended pursuant to a Form WC 2 which was filed on August 13, 1980. The form stated that benefits were suspended because claimant was “able to return to work.” Following a hearing, the Administrative Law Judge determined that claimant’s income benefits had been “properly suspended.” That award was affirmed by the full board.

Thereafter, claimant sought the board’s authorization for a change in the treating physician. On December 1, 1982, claimant’s request was denied. The employer/insurer was ordered, however, to have the claimant evaluated for rehabilitation services and to bear the cost of any such services. The employer/insurer appealed from that portion of the Administrative Law Judge’s order.

Before the rehabilitation issue was heard by the full board, it was advised that the parties settled the case. Accordingly, the full board postponed a decision on the rehabilitation issue. The settlement was never consummated, however, and no further action was taken in the case until October 1985. At that time, claimant requested a hearing to consider issues of change in condition, partial/permanent disability, medical expenses and rehabilitation.

Pursuant to claimant’s request, a hearing was held on January 14, 1986. At the hearing, the employer/insurer defended on the ground that, inter alia, the claimant’s request for a change in condition was barred by the two-year statute of limitation (OCGA § 34-9-104 (b)). The Administrative Law Judge determined that the change in condition request was not time barred. He found, however, that claimant did not undergo a change in condition requiring the employer/insurer to recommence the payment of compensation benefits. In this regard, the Administrative Law Judge found “that the claimant suffered a concussion to his spinal cord in the cervical region as a result of his February 25, 1980 injury [and] that as a result of this the claimant has developed a certain amount of spasticity which impairs his fine coordination of his left leg and arm. Despite these problems . . . the claimant has continued to perform work driving a tractor when called upon to do so by a local farmer. The claimant has also been able to mow lawns, both at his own home, his mother’s home and at a third person’s home. The claimant is paid for mowing the lawn of the third person.” The Administrative Law Judge concluded: “Although the claimant is able to do work which is suitable to his impaired condition, I do not find that the claimant has made any effort to find other work suitable to his impaired condition other than those employments previously mentioned. I do not find that the claimant has made a sincere effort to find other suitable employment by which he could reduce or terminate his economic disability . . . Therefore, I do not find that the claimant has shown he has experienced such a change in condition . . . which would require the employer/insurer to recommence payment of total disability income benefits to him.”

With regard to the rehabilitation issue, the Administrative Law Judge determined that claimant was in need of rehabilitation services. Accordingly, he directed the employer/insurer to supply claimant with a vocational rehabilitation evaluation and “such other rehabilitative services as may be necessary to restore the claimant to suitable employment.”

Claimant appealed to the full board; so did the employer/insurer. The board adopted the award of the Administrative Law Judge (one member dissented with regard to the rehabilitation directive) and the parties appealed to the superior court.

Based on the any evidence rule, the superior court affirmed that portion of the board’s award finding that claimant did not undergo a change in condition. It reversed the award of the board, however, in two respects. First, it ruled that claimant’s request for a change in condition was barred by the two-year limitation provision of OCGA § 34-9-104 (b). Second, it held that claimant was not entitled to rehabilitation benefits since the board determined that he was no longer economically disabled as a result of his 1980 injury.

Claimant sought discretionary review of the superior court’s judgment. We granted claimant’s discretionary appeal application and this appeal followed. Held:

1. Pursuant to OCGA § 34-9-104 (b), a party may apply for a decision based on a change in condition so long as the application is brought within two years of “the date of final payment of income benefits due under this chapter.” Did the employer/insurer make final payment of the income benefits due claimant under Chapter 9 (the Workers’ Compensation Act)? Apparently not.

OCGA § 34-9-221 (i) (formerly Code Ann. § 114-705 (i); Ga. L. 1978, pp. 2220, 2229) provides: “Where compensation is being paid with or without an award and an employer or insurer elects to controvert on the grounds of a change in condition or newly discovered evidence, the employer shall, not later than ten days prior to the due date of the first omitted payment of income benefits, file with the board and the employee or beneficiary a notice to controvert the claim in the manner prescribed by the board.” Pursuant to this Code section, an employer/insurer must give advance notice of 10 days before suspending benefits on the grounds of change in condition.

In the case sub judice, income benefits were suspended on August 21, 1980, pursuant to a Form WC 2 which was filed on August 13, 1980. Accordingly, benefits were suspended prematurely by two days. Under the Act, claimant is entitled to an additional two days of income benefits. See Rule 221 (i) of the Rules & Regulations of the State Board of Workers’ Compensation.

Since final payment of income benefits due under the Act has not been made by the employer/insurer it cannot be said that the two-year statute of limitation has run. Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 159 (3) (338 SE2d 742). It follows that the superior court erred in ruling that claimant’s request for a change in condition was time barred.

The employer/insurer contends that the board was estopped from ruling that benefits were still due under the Act since it initially found that claimant’s income benefits were “properly suspended.” We cannot accept this analysis. The issue at the initial hearing was whether benefits were properly suspended on the ground that claimant was able to return to work. The focus of the board was on claimant’s disability vel non. Finding that claimant was able to work, the board approved of the suspension of income benefits. In so doing, the board gave no consideration whatsoever as to whether claimant’s benefits were “properly suspended” in accordance with OCGA § 34-9-221 (i). Since that issue was not decided at the initial hearing, it cannot be said the board was estopped from considering it later.

The employer/insurer also contends that benefits are not due under the Act because the medical evidence shows claimant was no longer disabled after August 1, 1980. Completing the argument, the employer/insurer asserts that claimant actually received more benefits than he was entitled to receive since benefits were not suspended until August 21, 1980. This argument misses the mark. The Act requires 10 days notice before the suspension of benefits. It matters not when the employer/insurer was entitled to suspend benefits. Notice of the suspension is the key. The claimant is entitled to benefits for 10 days following the filing of such notice.

2. “A finding of fact by the board, when supported by any evidence, is conclusive and binding upon the court, and a judge of the superior court does not have authority to set aside an award based on those findings of fact. [Cits.]” Banks v. Royal Globe Ins. Co., 160 Ga. App. 18 (286 SE2d 309). The evidence supports the board’s finding that claimant was able to return to work. Accordingly, the superior court did not err in affirming that portion of the board’s award denying claimant’s request for a change in condition.

3. “Rehabilitation services” means many things. Generally speaking, the term is applied to both medical rehabilitation services and vocational rehabilitation services. More particularly, it embodies medical treatment, vocational evaluation and counseling, psychological evaluation, job planning, job placement and additional training. See generally Rule 200.1 of the Rules & Regulations of the State Board of Workers’ Compensation; Ranger Ins. Co. v. Speck, 145 Ga. App. 327, 328 (2) (243 SE2d 593). The goal of such services is to restore (1) maximum physical function and (2) suitable employment. OCGA § 34-9-200.1 (a); Rule 200.1 of the Rules & Regulations of the State Board of Workers’ Compensation. In short, “rehabilitation services” undertake “the task of restoring the man himself to the maximum usefulness that he can attain under his physical impairment.” 2 Larson, The Law of Workmen’s Compensation, § 61.21. To accomplish that task, employers must furnish employees with rehabilitation services which the board, in its discretion, deems necessary and practical. OCGA § 34-9-200.1; Ranger Ins. Co. v. Speck, 145 Ga. App. 327, supra.

It is contended that the board abused its discretion in this case by directing the employer to furnish a rehabilitation evaluation and other necessary rehabilitative services. In this regard, it is argued that such a directive flies in the face of the board’s finding that “claimant is able to do work which is suitable to his impaired condition.”

Decided June 13, 1988

Rehearing denied June 23, 1988

G. Gerald Kunes, for appellant.

Daniel C. Kniffen, for appellees.

This argument is based on a myopic view of rehabilitation services. The mere fact that claimant is able to work at a job “suitable to his impaired condition” does not mean that he is not in need of medical, psychological or vocational services. After all, claimant is still physically impaired as a result of his compensable injury. Moreover, he has not found suitable work. True, claimant has not made any effort to find such work. But perhaps, with proper vocational guidance and counseling, claimant will be motivated to make such an effort. And, perhaps, with proper job planning and placement, he will succeed.

The board was authorized to require the furnishing of a rehabilitation evaluation and other rehabilitation services deemed necessary. Ranger Ins. Co. v. Speck, 145 Ga. App. 327, supra. The superior court erred in ruling otherwise.

4. The superior court erred in ruling that claimant’s request for a change in condition was time barred and that claimant was not entitled to rehabilitation benefits. It correctly ruled that the evidence supported the board’s finding that claimant did not undergo a change in condition.

Judgment affirmed in part and reversed in part.

Pope and Ben-ham, JJ., concur.


text:
    76036.
    LANZO v. THE STATE.
    (371 SE2d 119)
   McMurray, Presiding Judge.

Defendant Anthony James Lanzo and co-defendant George T. Hudson were charged with possession of cocaine with the intent to distribute in violation of the Georgia Controlled Substances Act. Following a jury trial, defendant was found guilty; the co-defendant was found guilty but mentally ill. Defendant’s motion for a new trial was overruled and he now appeals. Held:

1. “Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321). Accordingly, the trial court did not err in admitting evidence that defendant engaged in other cocaine transactions (with the same agent of the Georgia Bureau of Investigation (GBI) who testified against defendant in this case) only months before the transaction in question.

2. In his second enumeration of error, defendant contends the trial court erred in allowing evidence which prejudicially placed his character in issue. This enumeration is made up of several parts.

(a) First, defendant complains that his character was impermissibly placed in evidence when a GBI agent testified that he was told by a confidential informant that defendant could obtain large quantities of cocaine. We cannot consider this complaint because it was not raised in the trial court. “It is well-settled that this court will not consider questions raised for the first time on review. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698).” Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525).

(b) Next, defendant asserts the trial court erred in denying a motion for mistrial which was made following an allusion to a “probation hearing.” The reference was made by a GBI agent upon direct examination. The agent was asked if a tape recording had ever been removed from the evidence room. The agent replied: “It was taken out during a probation —” At that point, the prosecutor interrupted: “Was it taken out for a hearing of some sort?” Thereupon, defense counsel informed the court she wished to make a motion outside the presence of the jury. The trial court instructed the jury to disregard the prosecutor’s question and it instructed the officer not to respond to it. Then the jury was sent out and defense counsel moved for a mistrial. The trial court heard argument upon the mistrial motion and it was denied. Before the jury returned, the trial court asked defense counsel whether further curative instructions were desired. She replied negatively.

“A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb the court’s ruling absent a manifest abuse of discretion which requires a mistrial to preserve the defendant’s right to a fair trial. Weaver v. State, 178 Ga. App. 91, 93 (2) (341 SE2d 921).” Devine v. State, 183 Ga. App. 322, 323 (359 SE2d 6). It cannot be said the trial court abused its discretion in this case. In the first place, the allusion to a “probation hearing” did not necessarily put defendant’s character in issue. See generally Yarber v. State, 159 Ga. App. 392 (283 SE2d 620); Heaton v. State, 180 Ga. App. 718 (1) (350 SE2d 480). Such a hearing could have been held with regard to others. (Defendant was indicted with four individuals. The jury was aware that they were involved in this transaction.) Additionally, the trial court immediately instructed the jury to disregard the prosecutor’s question and it instructed the officer not to answer the question. Finally, the trial court offered to take further corrective action if defendant’s counsel deemed it necessary. Under these circumstances, we find no error. See Hambrick v. State, 256 Ga. 148, 149 (1) (344 SE2d 639).

(c) Defendant also contends it was error for the trial court to permit the introduction into evidence of a tape recorded conversation between defendant and a GBI agent. In this regard, defendant points out that the tape put defendant’s character in issue since he was heard to brag about his cocaine and heroin connections. No such objection to the taped conversation was raised in the trial court. It will not be considered for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51). Even if such an objection had been raised, we would find no error. “Where evidence is otherwise relevant and material to the issues being tried, it is not rendered inadmissible merely because it may incidentally place the defendant’s character in issue. [Cits.]” Worthy v. State, 180 Ga. App. 506, 508 (3) (349 SE2d 529).

(d) Finally, defendant posits that it was error to allow the State to introduce a “prejudicial” photograph depicting defendant on the day of his arrest “with long hair.” We find no error. See Dorsey v. State, 183 Ga. App. 409 (1) (359 SE2d 195).

3. In his third enumeration of error, defendant contends the trial court erred in charging the jury on three occasions (twice during the trial and in the general charge) concerning the law of “similar transactions.” We cannot see how defendant was harmed by these correct statements of the law. The third enumeration of error is without merit.

4. In its charge to the jury, the trial court often referred to defendant and his co-defendant plurally. For example, the jury was charged: “You and you alone make the decision as to what the evidence in this case shows, and whether or not the defendants are guilty or not guilty of the charge that’s charged in the indictment or the lesser included offense of possession without the intent to distribute ... If you should find beyond a reasonable doubt that the defendant, and you will make a verdict as to each of them and you will make separate findings, beyond a reasonable doubt that the defendants are guilty of possessing the cocaine with intent to distribute beyond a reasonable doubt, then it would be your duty to return a verdict of guilty. Now, in [the co-defendant’s] case, you . . . may find him guilty of that, but you also have the option of finding whether or not he is guilty but mentally ill. You have the right to find the [co-defendant] not guilty by reason of insanity at the time it was committed, both defendants you have the right to find each defendant not guilty.” Additionally, the trial court charged the jury at length on the law of conspiracy. In this regard, the trial court charged, in part: “A conspiracy is an agreement between two or more persons to do an unlawful act . . . Where persons associate themselves in an unlawful enterprise, any act done in furtherance of the unlawful enterprise by any party to the conspiracy is, in legal contemplation, the act of all . . .” At times, the trial court did instruct the jury separately with respect to each defendant. (After all, they had different defenses and the evidence was different as to each defendant.) And the court informed the jury that it was to return a separate verdict as to each defendant. At no point, however, did the trial court make it clear that under the evidence the jury was authorized to convict one defendant and acquit the other.

In his fourth assignment of error, defendant asserts the trial court erred by failing to charge that the conviction of one defendant did not necessitate the conviction of the other. We agree. “Because the evidence against defendant and his co-defendant was not identical.. . the trial court’s plural reference to the defendants, combined with the failure to charge distinctly that the conviction of one defendant did not necessarily require the conviction of the other, was error. [Cits.]” Porter v. State, 182 Ga. App. 624 (1) (356 SE2d 703); Scott v. State, 182 Ga. App. 844 (1) (357 SE2d 297). The error becomes even more apparent when the conspiracy charge is examined. That charge tended to lump the defendants together as co-conspirators. Thus, the need for a distinct charge that the conviction of one defendant did not require the conviction of the other was even greater than it otherwise would have been. A retrial is in order.

5. The evidence was sufficient to enable a rational trier of fact to find defendant guilty of the crime charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The general grounds are without merit.

6. The trial court did not err in admitting into evidence two sound recordings of conversations between defendant and a GBI agent. The proper foundation was laid for the admission of such evidence. Smith v. State, 171 Ga. App. 758, 761 (5) (321 SE2d 213); Hall v. State, 176 Ga. App. 428 (1) (336 SE2d 291).

7. Defendant contends in his final enumeration of error that his sentence is excessive when compared to the sentence meted out to his co-defendant and the other individuals who were indicted with him. Inasmuch as defendant’s sentence is within the statutory limit, it will not be reviewed by this court. Branch v. State, 182 Ga. App. 818, 819 (3) (357 SE2d 136). Questions concerning the severity of a sentence, within legal limits, should be addressed to the sentence review panel. Tommie v. State, 158 Ga. App. 216 (1) (279 SE2d 510).

Judgment reversed.

Pope and Benham, JJ., concur.

Decided June 15, 1988

Rehearing denied June 23, 1988

Cliffe L. Gort, for appellant.

Thomas C. Lawler III, District Attorney, Scott A. Smeal, Thomas A. Devlin, Jr., Assistant District Attorneys, for appellee.


text:
    76120.
    MAGEE et al. v. FEDERATED DEPARTMENT STORES, INC.
    (371 SE2d 99)
   Banke, Presiding Judge.

Suzanne Magee and her husband brought this action to recover damages for injuries Mrs. Magee allegedly sustained as the result of a fall which occurred when she tripped over a cement barrier in the parking lot of the appellee’s store. The Magees appeal the grant of the appellee’s motion for summary judgment.

Mrs. Magee drove her automobile onto the parking lot during daylight hours and parked it approximately 150 to 200 feet from the store entrance. She had been a frequent shopper at the store in the past. On this occasion, she was accompanied by her 4-year-old grandson and her 15-year-old daughter. Located between the space where she had parked and the entrance to the store were raised, yellow-painted cement barriers, six inches in height, creating an enclosure used for temporary shopping cart storage. There were no signs designating this area as a depository for shopping carts, and no carts were contained in the enclosure at the time in question. The enclosure was located adjacent and parallel to one of the parking spaces. There was a car parked in the space directly adjacent to the barrier; however, the barrier projected out beyond that car for a distance of approximately two feet. Mrs. Magee’s daughter and grandchild, who were proceeding several feet ahead of her, walked past the cement barrier without incident. However, Mrs. Magee tripped over it, assertedly because her attention was diverted by a car which was being driven in her direction. Held:

“The doctrine that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril is well recognized. From this stems the rule that a lesser degree of prudence may be sufficient to constitute ordinary care where there are circumstances causing stress or excitement. [Cit.] The doctrine is further broadened to cover situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (124 SE2d 688) (1962). See also Robinson v. Western Intl. Hotels, 170 Ga. App. 812, 815 (318 SE2d 235) (1984). “The distraction theory may apply even when the injured party has prior actual knowledge of the existence of a defective condition. [Cits.] A possible confrontation with vehicular traffic on the property may be a significant ‘distraction’ for a pedestrian-invitee on the premises.” Shackelford v. DeKalb Farmers’ Market, 180 Ga. App. 348, 351 (349 SE2d 241) (1986). See also Globe Oil Co., USA v. DeLong, 182 Ga. App. 395 (1) (356 SE2d 47) (1987).

Decided June 1, 1988

Rehearing denied June 23, 1988

Samuel D. Ozburn, for appellants.

R. Jerry Kirkpatrick, Lawrie E. Demorest, for appellee.

Based on these authorities, we hold that a question of fact remains as to whether Mrs. Magee exercised ordinary care for her own safety under the circumstances.

Judgment reversed.

Birdsong, C. J., concurs. Beasley, J., concurs in judgment only.


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

text:
    76136.
    PENNINGTON v. CECIL N. BROWN COMPANY, INC. et al.
    (371 SE2d 106)
   Carley, Judge.

Appellant-plaintiff is a member of the congregation of appelleedefendant Mount Paran Church of God, Inc. (Church). As appellant was leaving a worship service in February of 1985, she slipped and fell on a patch of ice which had accumulated on a Church parking lot. The parking lot was one of several improvements which had been constructed for the Church by appellee-defendant Cecil N. Brown Co., Inc. (Contractor) and which the Church had, at the time of appellant’s fall, already accepted from the Contractor as completed projects. As the result of her fall on the ice, appellant initiated this tort action against both appellees. Appellant alleged three theories of recovery: Negligence; Nuisance; and, Strict liability. Both appellees answered, denying the material allegations of the complaint, and each subsequently moved for summary judgment. The trial court granted appellees’ motions. Appellant appeals from the order which granted summary judgment in favor of appellees.

1. Urging that genuine issues of material fact remain as to the Contractor’s liability, appellant enumerates the grant of summary judgment in favor of that appellee as error.

Appellant cites extensively to foreign authority. Regardless of the law in other jurisdictions, however, the law of Georgia is settled with regard to a contractor’s liability for finished projects which have been accepted by his employer. “The general rule in such circumstances as exist in the instant case is that ‘the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection. [Cits.] There are, of course, well recognized exceptions to this general rule. One such exception is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous. Another is that the contractor is liable where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons. [Cits.] If the work performed by the contractor is not shown to come within one of the exceptions to the general rule, when the work is finished by him and accepted by his employer, the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from the defective conditions of the work. [Cit.]’ [Cits.]” Derryberry v. Robinson, 154 Ga. App. 694, 695-696 (2) (269 SE2d 525) (1980).

The undisputed evidence of record is that, at the time of appellant’s fall, the Contractor had long since finished the parking lot and the other improvements which it had been engaged to build on the Church property and that the Church had accepted those improvements. The evidence also shows without dispute that any alleged “defects” in those improvements made to the Church property by the Contractor could not be considered to be hidden. See generally Tison v. Eskew, 114 Ga. App. 550 (151 SE2d 901) (1966). The undisputed evidence of record further negates the applicability of any exception to the general rule of the Contractor’s non-liability for such observable and allegedly defective conditions in those improvements which had previously been accepted by the Church. See generally Young v. Smith & Kelly Co., 124 Ga. 475 (52 SE 765) (1905); PPG Indus. v. Genson, 135 Ga. App. 248, 250 (2) (217 SE2d 479) (1975); Cox v. Ray M. Lee Co., 100 Ga. App. 333 (111 SE2d 246) (1959). Accordingly, the trial court correctly granted summary judgment in favor of the Contractor as to appellant’s negligence count and as to her nuisance count as well. See generally Cox v. Ray M. Lee Co., supra at 335 (2).

As to appellant’s strict liability claim, it is clear that the Contractor is not the manufacturer of any allegedly defective personal property which it sold as new property. The Contractor is, instead, merely the builder of improvements to real property. Compare Mike Bajalia, Inc. v. Amos Constr. Co., 142 Ga. App. 225 (235 SE2d 664) (1977); Long Mfg., N.C. v. Grady Tractor Co., 140 Ga. App. 320 (231 SE2d 105) (1976). It would, therefore, necessarily follow that the grant of summary judgment in favor of the Contractor was also correct as to this third theory of recovery which was advanced by appellant..

2. Appellant also urges that the trial court’s grant of summary judgment in favor of the Church was erroneous.

Our analysis in Division 1 would be equally applicable with regard to the disposition of the nuisance and strict liability claims which appellant asserts against the Church. Therefore, we now hold that the trial court likewise correctly granted summary judgment in favor of the Church as to those claims and our holding in this regard needs no further elaboration.

3. Our holding in Division 1 with regard to the negligence claim that was asserted against the Contractor would not, however, necessarily be dispositive of the negligence claim which appellant asserts against the Church. While the duties and responsibilities of appellees are similar, they are distinguishable and different. See Mullis v. Southern Co. Svcs., 250 Ga. 90, 92-93 (3) (296 SE2d 579) (1982). The Church is the owner and the occupier of the land and, as such, it has the duty to exercise ordinary care to keep the premises safe for its invitees. See OCGA § 51-3-1. Thus, the issue to be resolved is whether, construing the evidence most favorably for appellant, a genuine issue remains as the Church’s breach of the duty, which it owed as a landowner, to keep the premises safe for appellant, who was an invitee thereon.

As indicated, appellant was, at the time of her fall, an invitee of the Church. See generally Cox v. DeJarnette, 104 Ga. App. 664 (123 SE2d 16) (1961); American Legion Dept. of Ga. v. Simonton, 94 Ga. App. 184 (94 SE2d 66) (1956). Thus, cases which concern the duty owed by landowners to licensees, such as Nixon v. Edmonson, 177 Ga. App. 662 (340 SE2d 278) (1986) and Evans v. Parker, 172 Ga. App. 416 (323 SE2d 276) (1984), are factually distinguishable and inapplicable authority in this case. Accordingly, reliance upon such cases is misplaced as authority for the grant to the Church of summary judgment as to appellant’s negligence claim.

The Church urges that the trial court nevertheless correctly held that the decision in Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193) (1970) and McIntyre v. Corp. Prop. Investors, 160 Ga. App. 868 (288 SE2d 584) (1982) mandated the grant of the motion for summary judgment as to appellant’s negligence claim. Those cases do concern invitees rather than licensees. In both Auerbach and McIntyre, the plaintiff-invitee made a conscious decision to step upon a surface which she visually perceived to be different from the surface of the immediate surrounding premises. The plaintiff in Auerbach deliberately stepped into what appeared to her to be a “wet place” on a walkway, the surface of which walkway was otherwise dry. Underneath the “wet place” on the walkway, however, there was ice. The plaintiff in McIntyre deliberately stepped into what appeared to her to be a “dark patch” on the surface of a parking lot, the surface of which parking lot was otherwise dry and free of ice or any other dark patches. The “dark patch” on the parking lot proved, however, to be ice. In each case, the conscious decision of the plaintiff to step into the “patches” which differed from the surrounding surface, coupled with her awareness of the existing climatic conditions, showed that her knowledge of the alleged defect causing the fall was at least equal to that of the defendant-landowner.

When the evidence in this case is construed most strongly in appellant’s favor, she, entirely unlike the plaintiffs in Auerbach and McIntyre, did not consciously choose to step^onto a “wet” or “dark” surface which appeared to her to be visually different from the immediately surrounding surface. Appellant testified that, notwithstanding her maintenance of a lookout ahead, it appeared to her that she was stepping down onto the black asphalt of the parking lot and that, “[p]rior to [her] fall, [she] did not and could not see any ice in the area. After [she] fell, [she] looked back and saw that [she] had fallen on ice, which was black, and which was up against the curb, but not thick enough to reach the top of the curb so that the same was invisible while walking along the walkway north toward the asphalt area, but could be seen only after passing the curb and looking back towards [the C]hurch.” (Emphasis supplied.) Thus, according to appellant, it had appeared to her that she was stepping down onto the black asphalt surface of the parking lot, not that she was stepping down onto a surface which differed from the black asphalt of the parking lot. It was only after she had fallen and viewed the area from the other side of the curb that appellant could determine that the surface upon which she had placed her foot was not the black asphalt of the parking lot, but black ice. This evidence does not demand the conclusion that appellant had at least equal knowledge of the icy condition which caused her to fall. To the contrary, it raises the issue of optical illusion. “This court cannot say, as a matter of law, that such illusion, alleged to have been presented to [appellant], while approaching her car for the purpose of entering therein on that part of the parking lot in question, was not or could not have been so presented to the [appellant]. Such question is for the jury.” Smith v. Swann, 73 Ga. App. 144, 145 (3) (35 SE2d 787) (1945). This evidence of optical illusion would preclude a finding that, as a matter of law, appellant had at least equal knowledge of the alleged defect which caused her to fall. See Shackelford v. DeKalb Farmers’ Market, 180 Ga. App. 348, 350 (2) (349 SE2d 241) (1986). Compare Bowman v. Richardson, 176 Ga. App. 864 (338 SE2d 297) (1985); Anderson v. Dunwoody North &c. Club, 176 Ga. App. 210 (335 SE2d 451) (1985); Purvis v. Holiday Hills &c. Assn., 163 Ga. App. 387 (294 SE2d 592) (1982). Accordingly, the decisions in Auerbach, supra, and in McIntyre, supra, are factually distinguishable and are, therefore, inapplicable authority in this case. The trial court erred in relying upon those cases in granting the Church summary judgment as to appellant’s negligence claim.

4. In granting the motion for summary judgment, the trial court further held that there was no evidence that the Church had superior knowledge of the black ice. However, the evidentiary burden as to the Church’s superior knowledge is not one which appellant would be required to bear before trial, unless and until the Church, as the movant for summary judgment, had met its initial evidentiary burden of showing its lack of superior knowledge of the black ice. It would appear that the trial court concluded that the Church had met its initial evidentiary burden based, in part, upon certain affidavits submitted by the Contractor in support of its motion for summary judgment, wherein several Church members stated that the patch of ice had been obvious to them. The trial court apparently concluded that these affidavits would show that appellant’s knowledge of the black ice was, or at least should have been, equal to that which the Church had as to the existence of the defect.

For purposes of the Church’s motion for summary judgment, the evidence submitted by the Contractor to show that the black ice may have been obvious to others would, however, have no conclusive bearing upon appellant’s equal knowledge of the black ice onto which she stepped. The affidavits do not necessarily conflict with and certainly do not negate appellant’s own assertion that the black ice had presented an optical illusion to her as she approached it. The material issue is whether appellant, not the affiants, had been presented with an optical illusion under those circumstances which had surrounded her approach to the black ice. The black ice may have been obvious to others who encountered it, but, if, from appellant’s perspective, it had presented an optical illusion, a genuine issue of material fact would certainly remain as to her lack of equal knowledge. Construing the affidavits most favorably for appellant, they may have created a genuine issue of material fact as to the existence of an optical illusion, but they certainly did not eliminate the existence of a genuine issue of material fact as to appellant’s equal knowledge. The affidavits were, therefore, not a basis upon which the trial court could properly have based its grant of summary judgment in favor of the Church.

5. If the affidavits of the two Church members which were submitted by the Contractor cannot serve as the basis for the trial court’s grant of the Church’s motion for summary judgment, the question becomes whether those affidavits should have served as the basis for the trial court’s denial of the motion.

If the Church’s motion for summary judgment was erroneously granted, it was for one of two reasons: Either the Church failed to meet its initial evidentiary burden and the burden therefore never shifted to appellant or the Church did meet its initial evidentiary burden and appellant then successfully met the burden which had been shifted to her. The Church chose to meet its initial evidentiary burden by attempting to show that, under the evidence, appellant had at least equal knowledge of the black ice. As we have held, however, construing the evidence most favorably for appellant would show that, as the result of an optical illusion, she had no knowledge of the alleged defect.

This construction of the evidence of record as showing that the black ice had presented an optical illusion to appellant would not, however, also show that the Church must likewise have been without the requisite actual or constructive knowledge of its existence. The evidentiary effect of showing the existence of an optical illusion is merely to explain the plaintiff’s failure to have seen the defect. However, the evidence of the optical illusion does not demonstrate that the defendant likewise had no knowledge of the existence of the defect. See generally Shackelford v. DeKalb Farmers’ Market, supra, wherein a genuine issue of material fact remained as to the moving defendant’s “fault,” notwithstanding a favorable evidentiary construction for the non-moving plaintiff as to the existence of an optical illusion. Construing the evidence most favorably for appellant, the Church simply failed to show that appellant had equal knowledge, and the burden never shifted to appellant to come forward with any evidence that the Church’s knowledge was superior to hers.

Thus, even assuming that the affidavits of the other Church members submitted by the Contractor could be construed as evidence that the Church itself had knowledge of the black ice, that evidence is simply not relevant to any material issue which was raised in the context of this motion for summary judgment. The issue of the Church’s knowledge will, of course, become a material issue at trial when appellant must meet the evidentiary burden of showing that the Church had superior knowledge. It would be incorrect to intimate, however, that, in the absence of the affidavits of the other Church members submitted by the Contractor, the Church’s motion for summary judgment should have been granted. The proper disposition of this case is not to hold that the trial court erred because the affidavits of the other Church members demonstrate that appellant met her evidentiary burden of showing that a genuine issue of material fact remains as to the Church’s superior knowledge of the black ice. The proper disposition of this case is to hold that, construing the evidence most favorably for appellant, the Church, as the movant, failed to meet its initial evidentiary burden of showing that appellant had equal or superior knowledge of the alleged icy defect on its premises. See generally Shackelford v. DeKalb Farmers’ Market, supra. Compare Filmore v. Fulton-DeKalb Hasp. Auth., 170 Ga. App. 891 (318 SE2d 514) (1984). Accordingly, for this reason, we hold that the trial court erred in granting the Church’s motion for summary judgment as to appellant’s negligence theory of recovery.

6. The trial court correctly granted summary judgment in favor of the Contractor as to all theories of recovery. The trial court correctly granted summary judgment in favor of the Church as to all theories of recovery except that of the Church’s alleged negligent breach of the duty that it owed to appellant pursuant to OCGA § 51-3-1.

Judgment affirmed in part and reversed in part.

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

Deen, Presiding Judge,

concurring specially.

While noting that it may be regarded by some as an anomaly of ambiguity that a church member should maintain an action for a slip and fall against the member’s own church, an institution so concerned with the original Slip and Fall, I concur with Judge Sognier’s special concurrence. The church was not entitled to summary judgment on the negligence claim only because of the affidavits of the other church members stating that the patch of ice on which the appellant slipped was obvious. Without those affidavits, construing the evidence most favorably for the plaintiff/appellant would have required a finding that the ice was not visible, which would have translated into summary judgment for the church because the parties’ knowledge of the invisible hazard would have been equal.

It should also be noted that two cases cited by the majority opinion are physical precedents only, under Rule 35 (b) of the Rules of the Court of Appeals, and should be identified as such. Those two cases are Mike Bajalia, Inc. v. Amos Constr. Co., 142 Ga. App. 225 (235 SE2d 664) (1977), and Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193) (1970).

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

Sognier, Judge,

concurring specially.

I concur specially because church members in several affidavits contained in the record stated that there was ice present but that it was visible. These affidavits thus presented evidence in direct conflict with appellant’s statement that the ice was invisible and further raised a material question of fact whether the church could reasonably be construed as having knowledge of the ice. Hence, summary judgment in favor of the church on the negligence issue was improper.

Decided June 8, 1988

Rehearing denied June 23, 1988

Charles E. Moore, Carolyn Mercer, for appellant.

Karen L. Jenkins, Arthur L. Myers, Jr., John M. Bovis, for appellees.


author: Pope, Judge.

text:
    76271.
    CHEROKEE INSURANCE COMPANY et al. v. LEWIS.
    (371 SE2d 103)
   Pope, Judge.

Thomas L. Lewis brought a tort action to recover for injuries he received in an automobile collision. At the time of his injury, Lewis was employed by the City of Chickamauga as a garbage collector and was standing on a platform on the back of the city’s garbage truck. The rear of the truck was struck by an automobile driven by Mary Purple Nelms. The tort action was defended by Nelms’ liability insurance carrier, Preferred Risk Mutual Insurance Company, and copies of the summons and complaint were served upon Lewis’ automobile insurance carrier, Atlanta Casualty Company, and the City of Chiekamauga’s carrier, Cherokee Insurance Company. Atlanta Casualty filed an answer in the tort action in its own name. Cherokee did not file an answer or make any appearance in the tort action in either its own name or the name of Nelms. During the pendency of the tort action, Nelms died and her administratrix, Nancy Lee VanProoyen, was substituted as a party defendant in the action.

Subsequent to filing its answer in the tort action, Atlanta Casualty moved for summary judgment contending that it owed Lewis no uninsured motorist benefits because the amount of its coverage, $10,000, was less than the amount of Nelms’ liability coverage. On the appeal of the grant of Atlanta Casualty’s motion for summary judgment, this court held that Lewis was entitled to stack the $10,000 uninsured motorist coverage provided by Atlanta Casualty with the $25,000 coverage provided by Cherokee, resulting in a total amount of $35,000 of uninsured motorist coverage. After deducting Nelms’ $15,000 liability coverage from the $35,000 of available uninsured motorist coverage, this court concluded that Lewis was entitled to recover a total of $20,000 in uninsured motorist benefits from these two insurance companies. The court further held that Atlanta Casualty would be primarily liable to Lewis in the amount of $10,000 under its uninsured motorist coverage and that Cherokee would be liable for the remaining $10,000. See Lewis v. Atlanta Cas. Co., 179 Ga. App. 185 (345 SE2d 858) (1986).

The tort action was tried before a jury and judgment entered in favor of Lewis and against defendant VanProoyen in the amount of $150,000. Subsequent to entry of the aforesaid judgment, Preferred Risk tendered to Lewis the full amount of its $15,000 in liability coverage thereby reducing the amount of the judgment against VanProoyen to $135,000. After probate, there remained in Nelms’ estate $97,512.75 available for payment of the $135,000 balance of the judgment obtained by Lewis.

Under OCGA § 33-7-11 (f), Atlanta Casualty and Cherokee asserted that they were subrogated to Lewis’ rights against Nelms’ estate to the extent of their obligations to pay Lewis uninsured motorist benefits. Because of the competing claims of Lewis, Cherokee, and Atlanta Casualty to the assets of Nelms’ estate, VanProoyen, as the administratrix of the estate, filed this interpleader action seeking to require the three to interplead their respective claims to the estate. VanProoyen was discharged as the plaintiff in interpleader from all liabilities to the defendants with respect to the fund, and the defendants were required to interplead their respective claims to said fund.

The defendants filed motions for summary judgment asserting their various rights to the interpled funds. The insurance companies also sought to avoid liability for penalties and attorney fees under OCGA § 33-7-11 (j). The trial court entered orders denying the motions for summary judgment filed by Cherokee and Atlanta Casualty with respect to their claims to the interpled funds. The trial court also entered an order which granted Lewis’ motion for summary judgment against Cherokee with respect to his entitlement to an award of penalties and attorney fees under OCGA § 33-7-11 (j) because Cherokee had failed to pay the amount of its available uninsured motorist coverage to Lewis within sixty days of the entry of judgment against VanProoyen. Cherokee Insurance Company and Atlanta Casualty Company filed a joint notice of appeal from the various orders of the trial court, but Atlanta Casualty has subsequently withdrawn its appeal.

1. Cherokee’s first enumeration assigns error to the trial court’s failure to enter judgment in its favor on its subrogation claim to the interpled funds. Cherokee relies on the provisions of OCGA § 33-7-11 (f): “An insurer paying a claim under the endorsement or provisions required by subsection (a) of this Code section [uninsured motorist coverage] shall be subrogated to the rights of the insured to whom the claim was paid against the person causing such injury, death, or damage to the extent that payment was made. ...” Cherokee argues that by virtue of having satisfied a portion of the tortfeasor’s (Nelms’) obligation to the insured (Lewis), it should have the right to recoup such payment to the extent the tortfeasor has assets available from which Cherokee’s right of subrogation can be satisfied.

We resolve this issue adversely to Cherokee, finding persuasive an opinion of the Fourth Circuit Court of Appeals in a comparable circumstance involving an identical Virginia statute: “ ‘The right of subrogation cannot be enforced until the whole debt is paid, and until the creditor be wholly satisfied, there ought to and can be no interference with his rights or his securities which might, even by bare possibility, prejudice or embarrass him in any way in the collection of the residue of his claim.’ [Cits.] . . . Thus no paramount right of subrogation arises until the insured has received full satisfaction of his judgment against the uninsured driver.” (Indention omitted.) White v. Nationwide Mut. Ins. Co., 361 F2d 785, 787 (4th Cir. 1966). A similar conclusion, although dicta, appears in Travelers Ins. Co. v. Commercial Union Ins. Co., 176 Ga. App. 305 (335 SE2d 681) (1985), noting that “where an uninsured motorist is involved, the full amount of economic and noneconomic losses must be paid to the injured insured by his insurer and/or by the tortfeasor before the insurer is subrogated to the rights of its insured.” Id. at 307. We find no merit in Cherokee’s first enumeration of error.

2. Cherokee’s remaining enumeration cites as error the trial court’s entry of summary judgment in favor of Lewis for bad faith penalties and attorney fees pursuant to OCGA § 33-7-11 (j). The trial court found that the judgment in favor of Lewis against the Nelms estate entered November 20, 1986 “constituted a demand on Cherokee Insurance Company” and that the check issued by Cherokee to Lewis on April 29, 1987 was properly returned because no post-judgment interest had been included. Under these circumstances, the trial court concluded that the tender by Cherokee was not timely and granted Lewis’ summary judgment motion.

The parties agree that Lewis made a demand on Cherokee at some time prior to the entry of judgment against the Nelms estate. This, however, was inadequate to constitute a proper demand under OCGA § 33-7-11 (j). The subject code section provides for penalties and attorney fees “[i]f the insurer shall refuse to pay any insured any loss covered by this Code section within 60 days after a demand has been made by the insured, and a finding has been made that such refusal was made in bad faith .... The question of bad faith, the amount of the penalty, if any, and the reasonable attorney’s fees, if any, shall be determined in a separate action filed by the insured against the insurer after a judgment has been rendered against the uninsured motorist in the original tort action.” (Emphasis supplied.) It follows that a demand purportedly made pursuant to the statute would be of no effect, a mere nullity, if made prior to the entry of judgment against the uninsured motorist. See Wallis v. Cotton States Mut. Ins. Co., 182 Ga. App. 147, 151 (354 SE2d 842) (1987) (on motion for rehearing); Allstate Ins. Co. v. McCall, 166 Ga. App. 833 (305 SE2d 413) (1983), aff’d 251 Ga. 869 (310 SE2d 513) (1984). See generally State v. Hicks, 183 Ga. App. 715 (359 SE2d 712) (1987). In the absence of a proper demand, the trial court erred in granting Lewis’ summary judgment action.

Decided June 7, 1988

Rehearing denied June 23, 1988

Brady D. Green, Douglas M. Campbell, for appellants.

Dennis D. Watson, John W. Davis, Jr., for appellee.

Judgment affirmed in part; reversed in part.

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