text:
    A93A1501.
    VICKERS v. ROADWAY EXPRESS, INC. et al.
    (435 SE2d 253)
   Birdsong, Presiding Judge.

A. W. Vickers appeals the order granting summary judgment to appellees. Mr. Vickers was injured when a truck driven by an employee of Roadway Express, a common carrier, collided with Vickers’ motorcycle. Protective Insurance Corporation (PIC) is the insurer of Roadway Express. Vickers was x-rayed at the Urgent Care Center shortly after the accident and was informed that his x-rays were negative. Later the same day he was contacted by phone by an insurance adjuster representing PIC. The adjuster met with him the next day. The adjuster allegedly told Vickers that she was happy his x-rays were negative (although she had not seen either the x-rays or any report pertaining thereto); the adjuster also informed Mr. and Mrs. Vickers that Mr. Vickers’ no-fault insurance would be responsible for paying his medical bills provided Vickers had full coverage. Vickers stated that he had all the coverage one can buy. Mrs. Vickers got out their automobile policy, but the adjuster did not look at it. Within a week of the accident, the adjuster settled the claim for $3,500 and obtained a general release of all of Vickers’ property damage and personal injury claims, whether known or unknown and foreseen or unforeseen. Subsequently, Vickers learned that he had to have a back operation for a ruptured disk sustained during the collision. Vickers’ own insurance company denied liability on the grounds that the motorcycle was not a covered vehicle under the policy. Vickers brought suit, and appellees defended on the basis that they were released from liability. Appellant contends the release was not binding due to mutual mistake and the adjuster’s misrepresentation; specifically, appellant argues that both he and the adjuster were mistaken about the extent of appellant’s injuries and about the availability of no-fault medical payment insurance for injuries sustained in a motorcycle accident. We agree with the superior court’s detailed analysis and affirm. Held:

1. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) establishes the standard for grant of summary judgment to a movant-defendant.

2. “Constructive fraud is legal fraud, but does not require knowledge or scienter: ‘Misrepresentation of a material fact, made willfully to deceive or recklessly without knowledge and acted on by the opposite party, or made innocently and mistakenly and acted on by the opposite party, constitutes legal fraud’ [Cit.] . . . ‘Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.’ [Cit.]” Macon-Bibb County Hosp. Auth. v. Ga. Kaolin Co., 646 FSupp. 90, 93 (M.D. Ga. 1986), aff’d 817 F2d 98 (11th Cir. 1987). Appellant and the adjuster negotiated the settlement at arms length; there existed no confidential or fiduciary relationship between them. Compare Macon-Bibb County at 93; see Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 60 (239 SE2d 381). No evidence of record exists from which it can be inferred that the adjuster knew or should have known that any of her statements regarding appellant’s medical condition were false at the time made, or that she made such statements recklessly. Further, no genuine issue of material fact exists that Vickers relied and acted upon the statements of the adjuster, regarding his medical condition, in electing to accept the $3,500 settlement. See generally OCGA § 23-2-52. The record establishes that Vickers subsequently called personnel at the emergency medical facility and verified that his x-rays appeared negative before accepting the settlement offer; he also contacted an attorney and discussed the settlement offer before electing to accept it. In view of the clear and palpable evidence of record, there exists no genuine issue of material fact as to fraud, actual or constructive, or misrepresentation of any material fact by the adjuster regarding Vickers’ medical condition.

Further, as appellant was not prevented by the adjuster from making independent inquiry and verifying the scope of his insurance coverage, he has no viable defense based on fraud on the grounds that the adjuster misrepresented the scope of his insurance coverage. In fact, appellant was quite familiar with his insurance agent and made no attempt to contact that individual before executing the release and accepting settlement. “ ‘ “One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. (Cits.) Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar (a defense) based on fraud.” ’ ” (Citations omitted.) Gardiner v. McDaniel, 202 Ga. App. 663 (1) (415 SE2d 303). Appellant failed to exercise ordinary diligence by making an independent verification of the terms and extent of coverage of his insurance policy.

3. Appellant further asserts there existed a mutual mistake of fact, as both he and the adjuster believed his medical expenses would be covered under the terms of his own insurance policy. Parol evidence is admissible to demonstrate that the parties to a release were honestly mistaken as to the legal effect of the instrument. Roberson v. Henderson Chemical Co., 171 Ga. App. 722, 724 (3) (320 SE2d 835); compare Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697 (377 SE2d 210). However, appellant is not challenging the scope of the terms of the release, but rather the circumstances underpinning its execution. “ ‘ “[A] release of a claim for personal injuries cannot be avoided merely because the injuries have proved more serious than the releasor, at the time of executing the release, believed them to be, or because the releasor made a bad bargain on account of a wrong estimate of the damages which would accrue.” ’ ” (Citations omitted.) Powell v. Southern Trust Ins. Co., 156 Ga. App. 106, 107 (274 SE2d 110); accord Kennedy v. Bateman, 217 Ga. 458, 461 (123 SE2d 656). “Under Georgia law, absent special circumstances plaintiffs may attack a contract in a court of law on grounds of fraud only where they have exercised due diligence in protecting themselves, instead of merely relying blindly upon representations of another later claimed to have been false. [Cits.] The same rule requiring diligence applies where plaintiff alleges no fraud but a mutual mistake of fact, [cit.], and it applies in the specific situation in which plaintiff claims that what was misrepresented to him was the contents of a contract which he could have read for himself but failed to read. [Cit.] ‘Where from all the allegations of the pleader it appears that he showed no diligence in ascertaining the nature of the contract he signed, neither a court of law nor equity will relieve him of the consequences.’ ” Walsh v. Campbell, 130 Ga. App. 194, 197 (202 SE2d 657). Appellant had reasonable access to his insurance agent and to his policy of insurance, yet failed to exercise diligence to ascertain the scope of his insurance coverage before accepting settlement and executing the release. Neither law nor equity will provide relief in such instances. Id.; Powell, supra.

Decided August 5, 1993

Reconsideration denied August 20, 1993

Dozier, Akin, Lee & Graham, Lester Z. Dozier, Jr., for appellant.

Appellant’s reliance on Bass v. Seaboard &c. R. Co., 205 Ga. 458 (53 SE2d 895) and Turner v. Kraft, 95 Ga. App. 543 (98 SE2d 204) is not persuasive. The trial court, citing Powell, supra, concluded that “the factual situations which persuaded the Supreme Court to void the release in Bass and the Court of Appeals to void the release in Turner are not present here. The instant case is more analogous to Powell because Vickers signed the release in reliance on the mistaken diagnosis of the independent medical personnel who were treating him.” We agree. Although none of the cases cited by the parties are directly in point, under the circumstances of this case, we find more persuasive and controlling the authority of Gardiner, supra; Powell, supra; and Walsh, supra.

Appellant’s various contentions in support of his enumeration of error are without merit.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Dennis, Corry, Porter & Gray, Grant B. Smith, for appellees.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A1587.
    HOLT v. THE STATE.
    (435 SE2d 288)
   McMurray, Presiding Judge.

Defendant was convicted of burglary and he appealed. Held:

1. In his first enumeration of error, defendant contends the trial court erred in admitting a bloodstained towel into evidence, arguing that it was not relevant. We disagree. The evidence demonstrated that a burglar entered the victim’s house by breaking a windowpane; that the towel was in the house, serving as a buffer between a television set and a wooden table; and that the towel did not have bloodstains on it before the burglary. It follows that the towel was relevant to show the forcible and unauthorized nature of the burglar’s entry into the victim’s house. See Harris v. State, 142 Ga. App. 37, 41 (7) (234 SE2d 798) (evidence is relevant if it logically tends to prove or disprove a material fact at issue in the case). The trial court did not abuse its discretion in admitting the towel into evidence. See Johnson v. State, 148 Ga. App. 702 (1), 703 (252 SE2d 205) (if relevancy is doubtful, evidence should be admitted).

2. The trial court did not err in permitting a police officer to testify that the State’s witnesses picked defendant’s photograph out of a photographic line-up. “A law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.” Bruce v. State, 142 Ga. App. 211, 212 (2), 213 (235 SE2d 606).

3. Two thirteen-year-old witnesses testified that they saw defendant leaving the victim’s house. No objection was raised as to the competency of these witnesses. It cannot be said, therefore, that the trial court erred in failing to determine the competency of these witnesses at trial. Dunn v. State, 83 Ga. App. 682 (1) (64 SE2d 478).

4. Inasmuch as the trial court fully and appropriately charged the jury on the principle of “reasonable doubt,” it did not err in refusing to give the defendant’s proposed instruction on “reasonable doubt.” Fowler v. State, 188 Ga. App. 873 (1) (374 SE2d 805).

5. We decline defendant’s invitation to revisit and overrule Ross v. State, 192 Ga. App. 65, 67 (5) (383 SE2d 627). The trial court’s charge on alibi was not unconstitutionally burden-shifting. It did not shift the burden to defendant to prove that he was not at the scene of the burglary.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided August 20, 1993.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, for appellee.


author: Blackburn, Judge.

text:
    A93A1623.
    WALTON v. PRUDENTIAL INSURANCE COMPANY et al.
    (435 SE2d 289)
   Blackburn, Judge.

Appellant Annie Walton appeals the trial court’s award of summary judgment to appellee Prudential Insurance Company And Servicemen’s Veterans Group Life Insurance (hereinafter referred to as Prudential). The underlying action was brought by Walton against Prudential to obtain benefits on an alleged life insurance policy issued to John Walton.

The undisputed facts show that in May 1986, Mr. Walton applied for and eventually received a life insurance policy from Prudential. In October 1986, Mr. Walton failed to pay the full $20 premium, and in January 1987, Mr. Walton’s policy was terminated for failure to pay premiums.

In July 1987, Mr. Walton was diagnosed with lung cancer and a brain tumor. Thereafter, in August 1987, Mr. Walton requested a reinstatement application from Prudential. On August 31, 1987, Mr. Walton signed an incomplete application and submitted it to Prudential, along with a $60 reinstatement fee, and $6 as a monthly premium. It is undisputed that Mr. Walton did not complete questions 1-6 of the application, which relate to the health of the applicant.

On November 12, 1987, Mr. Walton died as a result of lung cancer. Thereafter, on December 2, 1987, Prudential, unaware of Mr. Walton’s death, returned the reinstatement application for completion by Mr. Walton and noted that it could not consider his application due to the incomplete information and his failure to provide the full monthly premium of $20. The health questions were honestly completed, with the exception that Mr. Walton’s death was not noted, and the application was submitted to Prudential’s underwriting department for a determination. Prudential underwriters determined that Mr. Walton was uninsurable due to his inability to provide evidence of his good health.

The life insurance policy issued to Mr. Walton in October 1986, provided that upon termination for failure to pay premiums, “the member’s Full-Time Coverage may be reinstated within 3 years after termination thereof . . . under the following conditions: (a) evidence of good health of the member satisfactory to the Insurance Company is furnished to the Office, without expense to the Insurance Company, and (b) payment of (i) the premium for the period commencing on the effective date of the reinstatement and extending to the premium due date occurring one month or more after the effective date of the reinstatement, and (ii) the monthly premium for the grace period allowed immediately following the due date of the premium for nonpayment of which the member’s Full-Time Coverage terminated.”

Decided August 20, 1993.

Lee, Black, Scheer & Hart, Steven E. Scheer, Christopher L. Rouse, for appellant.

On appeal, Walton asserts that the lapse of time between the submission of Mr. Walton’s reinstatement application and any notice of problems with the application, combined with Prudential’s retention of $6 for the first month’s premium manifests Prudential’s acceptance of his application. We cannot agree. “The general rule is that an application for insurance, even with the concurrent prepayment of premiums creates no binding contract of insurance until the insurer manifests its acceptance.” (Citations and punctuation omitted.) Academy Life Ins. Co. v. Johnson, 206 Ga. App. 551, 553 (426 SE2d 34) (1992).

Walton argues that the express mention in the insurance contract of non-binding acceptance of a reinstatement fee implies that demand and receipt of additional fees must be binding. Walton cites to the Supreme Court’s decision in Sovereign Camp Woodmen of the World v. Heflin, 188 Ga. 234, 235 (3 SE2d 559) (1939) for the maxim, expressio unius est exclusio alterius, meaning the express mention of one thing implies the exclusion of another, contending that it supports her position. The facts in Heflin are distinguishable from the present case. In Heflin, the insurance policy provided for reinstatement of the policy forfeited for non-payment of premiums by payment of the reinstatement premium within a prescribed period. The policy further noted that the premium was taken as a warranty that the applicant was in good health and would remain in good health for 30 days. Id. The court held that “the unconditional acceptance of premiums accruing after the 30-day period will operate to estop the association from raising the question that the insured did not remain in good health during the 30-day period. . . .” Id. at 236. In the present case, Prudential’s policy required evidence of good health prior to its reinstatement. Therefore, the general rule discussed in Johnson, supra, applies and it supports the trial court’s award of summary judgment to Prudential.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Miller, Simpson & Tatum, John M. Tatum, for appellees.


author: Pope, Chief Judge.

text:
    A93A0149, A93A0150.
    TILLETT BROTHERS CONSTRUCTION COMPANY, INC. v. DEPARTMENT OF TRANSPORTATION; and vice versa.
    (435 SE2d 241)
   Pope, Chief Judge.

The case giving rise to these cross-appeals is a renewal action of a previous case which was dismissed pursuant to OCGA § 9-2-60 (b) because no written order had been taken in the case for a period of five years. The complaint in this renewal action was filed on May 31, 1991. The complaint in the previous case was filed July 22, 1985 by the Georgia Department of Transportation (“DOT”) against Tillett Brothers Construction Company, Inc. (“Tillett”), a contractor on a certain DOT project. On August 22, 1985 Tillett filed an answer and counterclaim against DOT. On December 4, 1985, the trial judge entered the following “order” in that case: “The court orders this case to be on the inactive list until further order of court.” Although the parties dispute when the complaint and counterclaim were dismissed pursuant to OCGA § 9-2-60 (b), the case was dismissed automatically under that statute no later than December 4, 1990.

Case No. A93A0149

1. The issue presented in this appeal is whether the December 4, 1985 order in the previous case is an order within the meaning of OCGA § 9-2-60 (b). If it is, this renewal action filed on May 31, 1991 would be timely filed pursuant to OCGA §§ 9-2-60 (c) and 9-2-61 (a). Tillett contends that the trial court erred in holding the December 4, 1985 order of the trial court was not an order as contemplated by OCGA § 9-2-60 (b) and dismissing this renewal action as untimely filed. We agree and reverse.

The trial court made the following findings of fact and conclusions of law regarding that order: “In the previous case, DOT moved to have the case placed on an inactive list until further order of the court. The court granted DOT’s motion. DOT contends that the 1985 order did not grant ‘affirmative relief.’ The Court finds that the 1985 order was, at most, a notice to the parties that the case would npt be tried in the foreseeable future. There is no such legal status, calendar, or docket known as an ‘inactive list.’ It had no binding legal impact on either the case or the parties.” (Paragraph indentation omitted.)

The five-year dormancy period authorizing dismissal of a case is broken whenever a written order which is signed by the trial judge is filed by the clerk of the court. The document in question is styled as an order, was signed by the trial judge and filed by the clerk of court. Cf. Beck v. Dean, 177 Ga. App. 144 (338 SE2d 693) (1985) (document was a rule nisi). The purpose of the document was to grant DOT’s motion to place the case on an “inactive list.” Although trial courts may not maintain an actual “inactive list,” the effect of the disputed “order” was to remove the case from the trial court’s active cases and to continue (rather than dismiss) the case until further order. Subsection (a) of OCGA § 9-2-60 clearly provides that an order granting a continuance is an order for purposes of subsection (b). It is not necessary for an order to advance or resolve a litigation matter for the order to be an order within the meaning of OCGA § 9-2-60. See Loftin v. Prudential Property &c. Ins. Co., 193 Ga. App. 514 (388 SE2d 525) (1989) (holding a written order granting a leave of absence to defense counsel is an order within the meaning of OCGA § 9-2-60). To the extent the dicta in our decision in Beck v. Dean, supra at 144 (1) suggest that an order granting a continuance or any order that would delay the resolution of pending litigation is not an order within the meaning of OCGA § 9-2-60 that case is disapproved.

Because the last order filed in the previous case, the December 4, 1985 order, is an order within the meaning of OCGA § 9-2-60, the previous case would have been automatically dismissed pursuant to OCGA § 9-2-60 (b) on December 4, 1990. Therefore this renewal action filed on May 31, 1991 is timely filed pursuant to OCGA §§ 9-2-60 (c) and 9-2-61 (a). The trial court’s dismissal of the renewal action on the basis that it was untimely filed was erroneous.

Case No. A93A0150

2. This appeal presents the issue of whether the trial court erred in holding Tillett, a Tennessee corporation whose certificate of authority to transact business in Georgia was revoked in 1989, can maintain this renewal action filed in 1991. The trial court held that because Tillett filed its counterclaim in the previous case while it possessed a valid certificate of authority, a timely renewal of Tillett’s counterclaim in the previous case would not be barred because Tillett did not possess a certificate of authority to transact business in Georgia at the time it filed this renewal action.

OCGA § 14-2-1502 sets forth the consequences of transacting business in Georgia without a certificate of authority. Subsection (a) of that statute provides: “A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.” That statute must be read in conjunction with OCGA § 14-2-1501 (b) (1) which provides that “ [maintaining or defending any action or any administrative or arbitration proceeding or effecting the settlement thereof or the settlement of claims or disputes” does not constitute transacting business in this state. While these statutes appear inconsistent, when the comments to those statutes are also considered those statutes can be read consistently. OCGA § 14-2-1501 (b) allows a foreign corporation which has not transacted and is currently not transacting business in Georgia to maintain or defend a suit in this state even though such a corporation does not have a certificate of authority to transact business in this state. On the other hand, OCGA § 14-2-1502 bars a foreign corporation which is transacting, or has transacted, business in Georgia from filing or maintaining a lawsuit in this state unless the foreign corporation obtained the requisite certificate to transact business in Georgia either (1) before or while it was transacting business in the state, or (2) if it did not obtain the requisite certificate before or while transacting business in this state and sought to maintain a proceeding in a court of this state after it was no longer transacting business in this state before that action was filed. In this case, although Tillett did not have a certificate to transact business in this state in 1991 when it filed this renewal action, it had the requisite certificate at all times it transacted business in Georgia. Accordingly, the trial court correctly held that Tillett’s failure to obtain a certificate of authority to transact business in Georgia in 1991 does not bar this action since Tillett possessed a certificate to transact business in Georgia at all times it transacted business in Georgia.

3. We must also consider whether Tillett is a proper party plaintiff in this renewal action. In the first paragraph of its complaint Tillett pleads it “is a Tennessee corporation registered to do business in the [S]tate of Georgia during the time when the events set out herein arose. Tillett ... is now inactive.” DOT argues that because Tillett was a defunct corporation at the time this renewal action was commenced, this action is a nullity because it is not being prosecuted in the name of the real party in interest. Tillett argues that because under both Georgia and Tennessee law a dissolved corporation is entitled to wind up its affairs, it can properly prosecute this action. With regard to this issue the trial court held that because Tillett was administratively dissolved by the Georgia Secretary of State in July 1989 and this action is a renewal of an action that was pending at that time, this suit can proceed as if dissolution of Tillett had never taken place.

We initially note that the Georgia Secretary of State does not have authority to dissolve a Tennessee corporation. The Secretary, however, may revoke the certificate of authority of a foreign corporation to transact business in Georgia, which the record reveals the Secretary did on July 24, 1989. This renewal action was filed on May 31, 1991. With the exception that the renewal action relates back to the filing of the complaint in the previous case with regard to the applicable statute of limitation, any action which is renewed pursuant to OCGA §§ 9-2-60 and 9-2-61 (a) is an action de novo. Therefore, the trial court’s reliance on Rosing v. Dwoskin Decorating Co., 141 Ga. App. 617, 618 (234 SE2d 128) (1977) is misplaced since that case involved an action that was pending at the time of the dissolution of the corporate plaintiff and subsequent transfer of assets to another corporation.

We also note that there is no evidence in the record showing that Tillett has been dissolved under Tennessee law. The parties do not argue and we are not aware of any legal significance of Tillett’s admission in the complaint that it is an “inactive” corporation. In its brief, however, Tillett argues that a corporation which has been “dissolved” under either Georgia or Tennessee law may maintain an action to wind up its affairs. For purposes of this discussion, we will assume that Tillett has been dissolved pursuant to the Tennessee Business Corporation Act.

We must decide whether a foreign corporation which has been dissolved pursuant to the law of its state of incorporation may assert a cause of action in Georgia after it has been dissolved. We look first to OCGA § 9-11-17 which provides in pertinent part, “[e]very action shall be prosecuted in the name of the real party in interest. . . . The (capacity of a corporation to bring or defend an action shall be determined by the law under which it was organized, unless a statute of this state provides to the contrary.” This statute applies to dissolved as well as active corporations. See generally Oklahoma Natural Gas Co. v. Oklahoma, 273 U. S. 257, 260 (47 SC 391, 71 LE 634) (1927). Tillett was incorporated in Tennessee and its capacity to sue and be sued is governed by the law of that state.

At common law the dissolution of a corporation terminated its legal existence. Melrose Distillers v. United States, 359 U. S. 271, 272 (79 SC 763, 3 LE2d 800) (1959). Consequently, parties having claims against the dissolved corporation then brought suits in equity against directors and shareholders on the principle of tracing the funds of the dissolved corporation. Ultimately all states adopted statutes which prolong the life of a corporation after dissolution to allow the corporation to dispose of its affairs in an orderly fashion. Model Business Corporation Act Ann. 2d, § 205, p. 2 (1971). Both Georgia and Tennessee have adopted statutes which provide in pertinent part that dissolved corporations may continue their corporate existence but may not carry on any business except that necessary to wind up and liquidate their business and affairs. OCGA § 14-2-1421 and Tenn. Code § 48-24-105. Because a dissolved corporation would retain capacity under Tennessee law to prosecute an action to wind up its affairs, the trial court correctly held that Tillett had the capacity to bring this renewal action. See generally Johnson v. Helicopter &c. Svcs. Corp., 404 FSupp. 726 (D. Md. 1975); compare Trust Co. of Ga. v. Mortgage-Bond Co. of N.Y., 203 Ga. 461 (46 SE2d 883) (1948) (holding that Section 36 of the Corporation Act of 1938, which allowed a corporation to be continued for a term of three years after dissolution, did not apply to a foreign corporation that had never done business in Georgia) with Employers’ Liability Assur. Corp. v. Keelin, 132 Ga. App. 459, 462 (208 SE2d 328) (1974) (a decision rendered before Georgia adopted the Model Business Corporation Act holding that after a corporation has dissolved and disposed of all of its assets it cannot prosecute a suit in its name). A judgment that is right for any reason will be affirmed by this court. Turner v. MCI Telecommunications Corp., 203 Ga. App. 71, 76 (416 SE2d 370) (1992). Accordingly, we affirm the trial court’s holding that Tillett had capacity to bring this action.

Decided July 30, 1993

Reconsiderations denied August 23, 1993

Smith, Currie & Hancock, Robert B. Ansley, Jr., Fredric W. Stearns, Joseph P. Henner, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, William G. Cromwell, Lisa H. O’Day, Staff Attorneys, for appellee.

Judgment reversed in Case No. A93A0149. Judgment affirmed in Case No. A93A0150.

Birdsong, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge. Andrews, Judge,

text:
    A93A0800.
    REPUBLIC CLAIMS SERVICE COMPANY v. HOYAL.
    (435 SE2d 612)
   Birdsong, Presiding Judge.

We granted interlocutory appeal to review the trial court’s refusal to dismiss this lawsuit under OCGA § 9-2-60.

Joe Hoyal, pro se, filed suit against Republic Claims Service Company in March 1987. Republic answered and filed a counterclaim for Hoyal’s “wilfully” filing a lawsuit “without substantial justification.” Trial was set for August 27, 1987, but Republic got an oral continuance. The parties then agreed to a settlement but Republic’s counsel refused to send the settlement and release by mail. Never having received a settlement, Hoyal amended his complaint in January 1991. Republic answered and Hoyal moved for trial in August 1991. From then until March 1992, he pressed for trial. In February 1992, Republic filed a conflict letter, and thereafter the trial was continued again. In April 1992, Republic filed a motion to dismiss the case for lack of a “written order” in five years.

The trial court denied Republic’s motion, finding: “There have been several recent filings in the case by both plaintiff and defendant. ... As plaintiff has announced ready for trial on numerous occasions, and the case has not been reached for trial by this court through no fault of plaintiff, plaintiff should not be penalized in the dismissal of his action.” The court’s docket sheet, showing several continuances and trial resettings, was forwarded to this court by Hoyal as an attachment to his brief. The court docket sheet is not a part of this record and in construing the statute, we do not consider matters aliunde the record (Sunn v. Trophy Marine, 176 Ga. App. 68 (334 SE2d 884)); but we take judicial notice that orders of continuance are entered in the court docket and Republic does not contend the orders of continuance in this case were not entered in the docket.

OCGA § 9-2-60 (b) provides: “Any action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.” Republic contends this language is unambiguous and that dismissal is mandated. Dept. of Med. Assistance v. Columbia Convalescent Center, 203 Ga. App. 535, 536 (417 SE2d 195). Held:

1. If defendant’s “orders” of continuance “written” in the docket were good enough to stop plaintiff from getting a trial for five years, they are good enough to stop defendant from being rewarded with a dismissal. The term “written order” in OCGA § 9-2-60 is too uncertain to justify penalizing the plaintiff in this case. This case does not deserve to be dismissed. It was gravid with life. It was not settled because defendant refused to send the settlement in the mail, and it never went to trial because defendant kept getting oral continuances until it could move for dismissal on grounds the case was “dead.”

Joe Hoyal contends Republic contrived to put him off and kept the case confused, and so it appears. For instance, Republic on June 19, 1987, wrote: “[This is] an unconditional offer to settle all of your claims. . . . [T]he offer to settle your claims ... is a firm offer.” (Emphasis supplied.) Hoyal replied: “You have failed to mention in your letter the fact that [you] . . . filed a counterclaim against me.” Republic’s attorney replied: “You have misconstrued the terms of my letter of June 19, 1987. My letter . . . was an offer to settle all claims.” (Emphasis supplied.) As is evident, however, Hoyal did not misconstrue that letter’s terms.

OCGA § 9-2-60 was intended to prevent court records from being cluttered by “unresolved and inactive litigation.” Swint v. Smith, 219 Ga. 532, 534 (3) (134 SE2d 595); Lewis v. Price, 104 Ga. App. 473 (122 SE2d 129). It was designed to protect litigants from dilatory counsel (Swint, supra), not to reward a dilatory defendant for dragging a case out. The plaintiff in Swint let his case languish for nine years before seeking trial, but this case was neither inactive nor unresolved.

OCGA § 9-11-1 requires us to construe the Civil Practice Act to secure the just determination, not merely the speedy determination, of every matter. OCGA § 9-2-60 is a forfeiture statute, in derogation of common law and it must be strictly construed. This means we cannot make more of the term “written order” than strictly appears. It is also a remedial statute in derogation of a party’s constitutional rights, and is to be applied liberally so as not to damage those rights. See Chance v. Planters Rural Tel. &c., 219 Ga. 1, 3 (131 SE2d 541). It should not be used to punish a party who strove to resolve his litigation and to reward the party who leached the life out of it.

The first rule of statutory construction is to “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). The cardinal rule in construction of laws is, “ ‘ “ ‘first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.’ [Cit.]” ’ ” (Emphasis supplied.) Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430). The “evil” addressed by OCGA § 9-2-60 — the prolongation of inactive or unresolved cases — does not exist here. This case was vibrant. The lack of a “written order,” whatever that means, does not prove a case is inactive, and the existence of a “written order” does not prove a case is active. An illusory construction of the variable words “written order” will penalize Joe Hoyal for Republic’s actions in prolonging the case orally until it could be dismissed. We may not presume the legislature intended such an absurd construction of the statute, leading to wholly impracticable and unjust consequences. Hollowell, supra; State v. Livingston, 222 Ga. 441, 442 (150 SE2d 648).

It is suggested that we may not consider equities, for equity follows the law and cannot be used to violate express provisions of a statute. See Persoll v. Scott, 64 Ga. 767. This might be the case if by some “express provision” OCGA 9-2-60 defined a “written order” as one signed by the judge, but it does not. The meaning of “written order” in OCGA § 9-2-60 is so unclear that it has been debated often and with too varied results, as proved by the many cases annotated to the statute and by the cases cited by the dissent. The idea that the judge must sign a written order does not come from the statute but from case law. See Ga. Power Co. v. Whitmire, 146 Ga. App. 29, 30-31 (245 SE2d 324); Majors v. Lewis, 135 Ga. App. 420 (218 SE2d 130). There being no “express provision” in the statute defining the words “written” and “order,” the equities of the parties may be considered in order to effect the true purpose of OCGA § 9-2-60. See Persoll, supra. Moreover, OCGA § 1-3-1 (c) provides: “A substantial compliance with any statutory requirement . . . shall be deemed and held sufficient.”

A grant of continuance is an “order.” OCGA § 9-2-60 (a). When it is entered in the docket, it is “written” and has the force of law. OCGA § 9-10-169. According to OCGA § 1-3-3 (23), “ ‘[w]riting’ includes printing.” The dismissal statute does not specify who must write an “order” or where it must be “written.” It does not even require an “order” to be filed, but merely “taken.” The term “written order” is so cloudy it has been deemed satisfied by a thing as unsubstantive (and dilatory) as a grant of leave of absence (Loftin v. Prudential Property &c. Ins. Co., 193 Ga. App. 514 (388 SE2d 525)), or not satisfied by a thing as important (and diligent) as a rule nisi. Beck v. Dean, 177 Ga. App. 144 (338 SE2d 693).

On such flimsy words as “written order,” we are not authorized to interpret OCGA § 9-2-60 (a) to deprive Joe Hoyal of his lawsuit, on the fiction that it was lifeless.

2. The “remedy” in OCGA § 9-2-60 (c), which allows plaintiff to refile his suit in six months, is a fictitious remedy for an illusory evil. If a case is really dead, it ought to be dismissed and not spawn more litigation. Under OCGA § 9-2-60 (c), a truly dead case can be refilled even though it is dead. The idea that OCGA § 9-2-60 (b) resolves inactive litigation by working a “mandatory automatic dismissal” is thus fairly ludicrous.

On the other hand, it is nonsensical to dismiss a living case on the fiction that it is dead, only to have it refiled because it was really not dead, with new claims for damages for a dismissal caused by unfair tactics (see OCGA § 23-2-56) or for acts imposed for delay or harassment or which “unnecessarily expanded the proceeding by . . . improper conduct.” See OCGA § 9-15-14 (b), as amended. The “remedy” of OCGA § 9-2-60 (c), invoked when a living case is dismissed as “dead,” creates unnecessary litigation. Even if plaintiff was unable to refile his case in six months, the prolongation of the case and defendant’s invocation of a dismissal when it was defendant who refused to send the settlement or go to trial, might still be laid at defendant’s feet by an excess litigation claim filed within forty-five days after “final disposition” on this appeal. OCGA § 9-15-14 (e).

The dismissal of Hoyal’s case under a punitive, illusory interpretation of the vague words “written order” would do nothing to resolve this litigation. It would work an unnecessary injustice for an evil that never existed, on the justification that plaintiff has a feeble remedy. It would make no sense, for the refiling of a case which was dismissed as “lifeless” is simply more of the same litigation, exacerbated, which the legislature hoped to end. We will therefore not interpret the loose language of OCGA § 9-2-60 to reward defendant for prolonging the case, for this would thwart the purpose of the statute, do real injustice to the plaintiff, and incite more litigation.

Judgment affirmed.

Pope, C. J., Beasley, P. J., Cooper, Blackburn and Smith, JJ., concur. McMurray, P. J., and Andrews, J., dissent. Johnson, J., not participating.

Andrews, Judge,

dissenting.

I respectfully dissent. OCGA § 9-2-60 (b) unambiguously provides: “[a]ny action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.” The dismissal provided for in the statute is automatic and it is mandatory. Loftin v. Prudential Property &c. Ins. Co., 193 Ga. App. 514 (388 SE2d 525) (1989). The dismissal results as a “matter of law, and the court has no discretion to order it reinstated.” Dept. of Med. Assistance v. Columbia Convalescent Center, 203 Ga. App. 535, 536 (417 SE2d 195) (1992). The statute should be construed according to its explicit terms and the trial court erred in not dismissing this case since no order had been entered in more than five years. See generally Swint v. Smith, 219 Ga. 532 (134 SE2d 595) (1964); Stephens v. Stovall & Co., 184 Ga. App. 78 (360 SE2d 638) (1987).

The handwritten entry in the docket of the court-ordered continuance is not a written order under OCGA § 9-2-60 (b). Compare Tillett Bros. Constr. Co. v. Dept. of Transp., 210 Ga. App. 84 (435 SE2d 241) (1993). Although subsection (a) of the statute provides that “an order of continuance will be deemed an order,” no such order was entered here. See Ga. Power Co. v. Whitmire, 146 Ga. App. 29 (245 SE2d 324) (1978) (neither the judge’s notation of continuance in docket, nor calendar assigning case for trial constituted an order under the statute); Harris v. Moody, 144 Ga. App. 656 (242 SE2d 321) (1978) (dismissal affirmed despite plaintiffs’ contention that an agreement to continue the case between counsel was sufficient to avoid the mandatory dismissal provisions, since the plaintiffs had the duty to obtain a written order to that effect and enter it in the record); Salter v. Chatham County, 136 Ga. App. 914 (1) (222 SE2d 638) (1975) (the rule is mandatory and “places squarely upon the plaintiff the duty to comply with the law and to obtain a written order of continuance or other written order at some time during a five-year period and to make sure the same is entered in the record”); Johnson v. McCauley, 123 Ga. App. 393 (181 SE2d 111) (1971) (no written order of continuance contained in the record; therefore denial of motion to set aside the judgment of dismissal affirmed).

The concern the majority expresses regarding the harshness of this rule is ameliorated by subsection (c) of the statute. This subsection evidences a general legislative intent to avoid unfairness and harsh results, and provides a specific remedy in situations like the instant one, in which an active case falls under the mandates of OCGA § 9-2-60 (b).

I am authorized to state that Presiding Judge McMurray joins in this dissent.

On Motion for Reconsideration.

Republic contends we based our decision on evidence outside the record. The decision, however, is based on a strict construction of the term “written order” in OCGA § 9-2-60, which is not expressly defined and which is too uncertain to mandate a dismissal of a suit which was neither inactive nor unresolved. OCGA § 9-2-60 is a forfeiture statute; it must be strictly construed and liberally applied to work a just determination of every suit. OCGA § 9-11-1.

Contrary to Republic’s assertions, evidence of Republic’s dilatory ' tactics is in the record and is relevant to show the injustice that can be worked by a careless construction of OCGA § 9-2-60. Republic’s counsel’s June 19, 1987 letter offering to settle only Hoyal’s claims appears in the record. On motion for reconsideration, Republic urges facts not in the record, to wit, that its counsel “offered to go to Hoyal’s house to deliver the release and settlement check [or] to meet Hoyal in counsel’s office to pay the settlement in exchange for the signed release. . . . The obvious danger ... in mailing the release and settlement check to Hoyal is that Hoyal would cash the settlement check and refuse to sign the release.” However, Republic could have sent the release to be executed before it sent any money. The record shows Hoyal wrote Republic’s counsel in July 1991, asking him to “send me the release by mail and I will sign it and return it to you”; and Republic’s counsel wrote Hoyal instructing him to come to Republic’s counsel’s office, and “I shall prepare a Release . . . and [pay] the settlement funds of $300.00 after you have signed the Release.” (Emphasis supplied.) Hoyal filed these letters in the record, with a letter to the clerk asking that the case be put on the next jury calendar and stating that he had tried every way he knew to settle the case but that Republic’s counsel was “just playing games” and that “I have [phoned and written] him many times and ask[ed] that he please send me the release by mail and I will sign it and return it to him — however he always finds a way to continue this harassment towards me. ... I would never invite anyone to my home that has treated me like [he] has done for the past few years. He can send me the money by mail or we will go to court.” The record thus shows that Republic would not effect the settlement without forcing Hoyal to a personal confrontation which Hoyal found harassing and oppressive.

Decided July 16, 1993

Reconsideration denied July 30, 1993

Parkerson, Shelfer & Connell, George H. Connell, Jr., for appellant.

Joe Hoyal, pro se.

To illustrate the unfairness of a dismissal of an active case which the defendant has prolonged, we note another letter apparently from Republic’s counsel attached to Hoyal’s brief, which, if authentic, shows that after the trial court denied Republic’s motion to dismiss and after Republic filed a notice of appeal, Republic’s counsel wrote Hoyal: “I am enclosing a copy of the October 5, 1992 letter [which you refused to accept by certified mail]. Please read the letter carefully. You have thirty days from the date of this letter to voluntary withdraw, abandon, discontinue, or dismiss [your] lawsuit.” (Emphasis supplied.) Inasmuch as Republic’s motion for dismissal had been denied and the case was still legally pending, this demand and the implicit threat by Republic’s counsel invite scrutiny under any claims Hoyal may file under OCGA § 9-15-14.

The record proves the parties agreed to settle this case for $300 in 1987, but Republic refused to effect the settlement and Hoyal’s efforts to get a trial were thwarted through no fault of his own, as the trial court found. This case is the paradigm to prove the injustice that would be worked by construing loose words in OCGA § 9-2-60 to reward a dilatory defendant with an automatic dismissal.

Motion for reconsideration denied.


text:
    A93A0535.
    HILLINGA v. INTERCREDIT CORPORATION.
    (435 SE2d 246)
   Pope, Chief Judge.

Plaintiff/appellant Roelof Hillinga appeals the trial court’s order granting summary judgment to defendant/appellee Intercredit Corporation.

1. The record shows that pursuant to the terms of the parties’ employment agreement plaintiff was employed by defendant as its vice-president for sales and marketing for a three-year term commencing September 1, 1989. In April 1991 plaintiff submitted his letter of resignation and subsequently brought the present action for breach of contract seeking to enforce paragraph 10 and other provisions of the parties’ employment agreement. Subsection A of paragraph 10, described by plaintiff as an “employment security” provision and defendant as a “golden parachute” provision, provides in relevant part as follows: “Change of Control of the Company. Notwithstanding anything to the contrary contained elsewhere in Section 10, in the event of a shift of 20% in equity ownership of the Company, or 33% or more in the membership of the Board of Directors occurs, the Employee shall be entitled to an amount equal to five (5) years of base salary and continuation of all benefits and perquisites in the event that: (1) the Employee is terminated without cause (no fault attributed to the Employee) or (ii) the Employee resigns voluntarily due to unique difficulties encountered under the new corporate ownership, such as (a) the status of Employee is markedly diminished (e.g., exclusion from the Executive Council); (b) undue harassment (e.g., an oppressively different travel schedule or forced transfer to an inconvenient location); (c) reduction in pay; or (d) loss of perquisites. . . .”

Defendant argues that the trial court’s grant of summary judgment should be upheld because the record does not establish a change in corporate ownership or control, which is a condition precedent to the enforcement of the contract provision. We agree and affirm the grant of summary judgment as to plaintiff’s claim under this provision. Although the parties presented conflicting evidence on the question of whether there had been the requisite shift in equity ownership or increase in the number of directors, the record establishes without dispute that the “unique difficulties” encountered by plaintiff were not “due to . . . new corporate ownership,” as is also required under the terms of the contract. Our review of the record shows that the incidents of “unique difficulties” recited by plaintiff in support of his right to recover under the contract were primarily attributable to the actions and policies of the president, CEO and largest shareholder of the corporation, Douglas Matthews. The record is likewise clear that Matthews occupied these positions during the entire period of plaintiff’s employment, and as plaintiff testified in his deposition, that the purpose of the provision in question was to protect certain management level employees in the event that Matthews lost control of the corporation. Lastly, we also note that some of the difficulties were neither “unique” to plaintiff nor precipitated by any alleged change in corporate control, but rather were the result of financial difficulties experienced by the corporation. Inasmuch as the record does not support plaintiff’s right to recover under paragraph 10 of the contract, the trial court’s order granting defendant’s motion for summary judgment as to that claim is affirmed.

2. Plaintiff also contends that defendant breached the terms of the employment agreement by improperly reducing his salary. Defendant does not dispute that plaintiff’s salary was reduced from that stated in the employment agreement, but argues that a portion of plaintiff’s salary, as well as that of other employees, was merely “deferred” because of financial difficulties the company was experiencing, but that plaintiff resigned before his full salary could be reinstated. Because the facts are in dispute as to this issue, we find summary judgment was improperly granted as to this claim, and plaintiff is entitled to have a jury resolve this issue.

Decided July 30, 1993

Reconsideration denied August 23, 1993

Love & Willingham, Allen S. Willingham, for appellant.

Paul, Hastings, Janofsky & Walker, John G. Parker, Debra J. Gross, for appellee.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1123.
    ETHERIDGE v. THE STATE.
    (435 SE2d 292)
   Blackburn, Judge.

The appellant, Bobby Joe Etheridge, was convicted of four counts of aggravated child molestation, five counts of child molestation, and four counts of solicitation of sodomy, involving five male victims ranging in age from ten years to seventeen years. His sole contention on appeal is that his trial attorney provided ineffective assistance of counsel.

All five victims testified at trial. The youngest testified that between August and November 1991, Etheridge showed him pornographic movies, put his mouth on the child’s penis, and made the boy masturbate him on three separate occasions. After each of these encounters, Etheridge purchased the boy gifts, including a fishing pole, cigarettes, snuff, and a knife.

The above victim’s older brother also testified that on three or four occasions between May 1989 and November 1991, Etheridge showed him pornographic movies, masturbated the boy and had him masturbate Etheridge, and put his mouth on the boy’s penis. Etheridge also told the boy to put his mouth on Etheridge’s penis and requested anal sex with the boy, both of which desires were rejected by the victim. Etheridge had also purchased several items for the victim, including clothes, shoes, and a VCR.

Two other brothers, who were cousins of the above two victims, also recounted how during the summers of 1990 and 1991, Etheridge had shown them pornographic movies, touched their penises, and attempted to insert his penis into their anuses. The older child stated that Etheridge had put his mouth on the child’s penis more times than he could count, and had requested the child to do likewise to him. During the summer of 1991, the child had gone to Etheridge’s house almost every day and had sexual encounters with him more than three times per week. Also that summer, Etheridge had bought the older boy beer, cigarettes, and a pair of “skid pants.”

The fifth victim recounted that between June 1989 and December 1989, Etheridge showed him pornographic videotapes, got him drunk, touched the boy’s penis and attempted to measure it, put his mouth on the victim’s penis, had the victim put his penis in Etheridge’s anus on several occasions, and masturbated in front of the boy. After the sexual encounters, Etheridge purchased several gifts for the boy, including shoes, a Nintendo game with four game cartridges, clothes, and cigarettes. Etheridge told the victim not to reveal what had happened, or he would tell the boy’s father that he was a “fag-got.”

On appeal, Etheridge contends that his trial counsel was deficient in four respects: (1) in failing to interview or have testify several witnesses who gave written statements detailing episodes where one of the victims recanted his allegations; (2) in failing to interview any of the victims; (3) in failing to interview or have testify Etheridge’s father who was in the home at the time of the alleged incidents; and (4) in failing to object to or rebut the testimony of a rebuttal witness who was not on the witness list provided by the state prior to trial.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that defense counsel’s performance was deficient, and (2) that the defense was prejudiced by the deficient performance, i.e., show a reasonable probability that but for the trial counsel’s professional errors, the result of the proceeding would have been different. Hand v. State, 205 Ga. App. 467 (422 SE2d 316) (1992). There is a strong presumption that defense counsel’s conduct fell within the broad range of reasonable professional conduct. Bridges v. State, 205 Ga. App. 664 (423 SE2d 293) (1992).

1. With regard to the potential witnesses who gave statements about some of the victims recanting their allegations, during the hearing on the motion for new trial, Etheridge’s trial counsel explained that he had received the statements from these individuals and concluded that the central theme of the statements concerned the bad character of the victims, rather than the innocence of Etheridge. He chose not to call them as witnesses because he preferred not to present a defense focused on attacking the victims instead of promoting the innocence of the defendant.

Two of the potential witnesses indicated that while on a school bus, they overheard one of the boys claim that the allegations concerned only his brother. Etheridge’s trial counsel acknowledged that he did not attach much credit to these statements, out of a commonsense awareness that a boy on a school bus with his peers is not likely to admit to homosexual activity. Another potential witness reported overhearing one of the victims stating that the allegations against Etheridge “was all a joke to get out of paying the rent” that was owed to him. However, trial counsel aggressively pursued this possibility during cross-examination of that victim’s mother, and during direct examination of Etheridge.

Regarding trial counsel’s failure to call Etheridge’s father as a witness, there was no showing how the testimony of Etheridge’s father would have been of any benefit or relevance. Even Etheridge testified that his father had already gone to bed at the times the criminal activity was alleged to have occurred. Further, trial counsel stated that he talked with Etheridge’s father several times and realized the man was mentally disabled and incapable of testifying in a courtroom without causing more harm than good.

“ ‘The determination as to which defense witnesses will be called is a matter of trial strategy and tactics.’ [Cits.] ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result.’ ” Cauley v. State, 203 Ga. App. 299, 301 (416 SE2d 575) (1992). In the instant case, trial counsel articulated several valid reasons for not calling the potential witnesses discussed above, and that strategy did not constitute ineffective assistance.

2. Concerning his failure to interview the victims, Etheridge’s trial counsel noted that he thoroughly examined the state’s entire file, interviewed the investigating police officer, and reviewed copies of statements from all five victims. He did interview the father of two of the victims, who would not allow him to interview the victims without a court order. Also, as discussed above, at trial all five victims testified and trial counsel’s cross-examination of them was thorough. We find no deficiency of performance in this regard.

3. At trial, the mother of two of the victims testified that she had noticed that Etheridge quit attending church following a sermon on homosexuality. Etheridge disputed that testimony, and claimed that he attended church regularly up to the Sunday before his arrest, even driving the witness and her family to the church on occasion. The state then attempted to rebut Etheridge’s testimony by calling the church minister, who testified that he did not recognize Etheridge, had not seen him at church after the homosexuality sermon, and had never seen him at church with the mother of the two victims. Trial counsel did not object to the minister’s testimony or attempt to rebut it.

Contrary to Etheridge’s contention on appeal, there was no valid objection under OCGA § 17-7-110 concerning the state’s failure to in-elude the minister on its list of witnesses. The state’s need to call the minister for rebuttal did not arise until Etheridge testified about his regular church attendance, and there is no requirement to give the defendant the names of witnesses who will be used in rebuttal unless the state knows the witness will be called. Yeomans v. State, 229 Ga. 488 (2) (192 SE2d 362) (1972). Trial counsel explained that he did not try to rebut the minister’s testimony because he considered it insignificant compared to the primary evidence in the case, an acceptable explanation in view of the overwhelming evidence of Etheridge’s guilt. In short, Etheridge similarly has demonstrated no deficiency in this regard.

Decided August 23, 1993.

David A. Lamalva, A. Beth Ramshaw, for appellant.

Cheryl F. Custer, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1408.
    JOHNSON v. THE STATE. HALL v. THE STATE.
    A93A1409.
    (435 SE2d 458)
   Birdsong, Presiding Judge.

Michael Renard Johnson and Nicholas Fitzgerald Hall were tried jointly for armed robbery and possession of a firearm during the commission of certain crimes, but were convicted only of armed robbery. A grocery store in Augusta was robbed in November 1991, by two other defendants, Bradford and Coleman, who entered the store after appellants Hall and Johnson, separately, had gone in the store. Hall first went in, purchased a small item, “looked around,” and left. Soon after, Johnson entered the store and raised the owner’s suspicions by constantly looking around the store and waiting until the only other customer left before approaching the counter. Because of his suspicions, the owner locked his ice chest and followed Johnson outside. He saw Hall driving a yellow Pontiac with another man in the car, backing out of the parking lot. He heard one of the two men in the car yell, “That’s him. Get him.” Two other men (Coleman and Bradford) “instantly” started walking up on the side of the store. The owner followed them in the store. One of the men, Bradford, jerked the owner across the counter, put a cocked gun to his throat and said, “This is a stickup” and pushed the owner backwards. Coleman also produced a handgun and pointed it at the owner. Bradford and Coleman robbed the owner and fled. The owner followed and, with his own handgun, shot Coleman. Coleman fell and then got up and ran down Phinizy Road. Two witnesses driving toward the store saw a yellow Pontiac sitting in the middle of Phinizy Road in the opposite lane. The witnesses could not tell whether it was backing up or was sitting without moving, but they saw its brake lights on. After the witnesses drove past the Pontiac, they heard two gun shots and then saw two men running toward the Pontiac. The witnesses drove into the store parking lot, saw the store owner with a gun, and then turned to see the Pontiac speed away. Shortly after, the yellow Pontiac, occupied by four men, arrived at a hospital. They told an attendant that Coleman had been shot on Twelfth Street in Augusta.

The day after the robbery appellant Hall was found driving a yellow Pontiac with a stolen license plate. Dried blood was found between the seats. Hall gave a statement admitting he was in the store and that he, Johnson, Bradford and Coleman had traveled together to the hospital, but denying knowing of the robbery until after Coleman was shot.

Appellant Johnson gave two pretrial statements in which he denied knowing about the robbery but admitted being at the grocery. At trial Johnson said he, Hall and Bradford had agreed to say Coleman was shot on Twelfth Street.

Coleman and Bradford pled guilty. Hall and Johnson, on appeal of their convictions, contend the trial court erred in refusing the requested charge as to the standard of proof in a case of circumstantial evidence, and erred in failing to give the “two theories” charge, to wit, that where all the facts and circumstances of the case and all reasonable deductions present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused. Held:

1. The Supreme Court in Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) held that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” In light of that decision, a trial court positively invites reversal of a criminal conviction when it fails to give the circumstantial evidence charge whenever such a charge is requested, and sometimes when it is not requested or when the failure to give it is not objected to, if the failure to give it is clearly harmful and erroneous as a matter of law. Virtually every case contains some circumstantial evidence and, if the charge is not given, stands in danger of being reversed for clearly harmful and erroneous error. The charge is a fundamental principle of law as to criminal guilt and there is no reason not to give it; the State is not harmed by it and has no right to have it omitted. As it happens, however, we find the trial court’s refusal to give the charge on circumstantial evidence in this case, although error, is not just cause to reverse the convictions. The evidence of guilt of both appellant Hall and appellant Johnson was overwhelming; the evidence and all reasonable deductions therefrom were completely inconsistent with a reasonable hypothesis of innocence. To reverse the convictions would be a perversion of justice. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Carpenter v. State, 167 Ga. App. 634, 641 (307 SE2d 19); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

The evidence against appellants Hall and Johnson was not entirely circumstantial; there was direct evidence of Hall and Johnson’s knowing participation in the crime of armed robbery. Both Hall and Johnson separately “cased the scene” immediately prior to the robbery; they did not come in the store together although they were traveling in the same car. When the owner followed Johnson outside, he saw Hall and Johnson in the yellow Pontiac and heard one of them yell, “That’s him. Get him.” Upon this cry from the car occupied only ■ by Hall and Johnson, the two armed robbers (Coleman and Bradford) “instantly” appeared as if from nowhere; they had not been in the car when the owner came outside and he did not see them until they “instantly” appeared after the cry from the Pontiac occupied by Johnson and Hall while their car was backing up to be ready to leave. While the robbery was taking place, Johnson and Hall, in the Pontiac, were sitting still in the middle of the road, according to eyewitnesses. After they heard the shots (when the owner shot Coleman), the witnesses saw Bradford and Coleman run toward the Pontiac which was sitting on ready in the road, occupied by appellants Hall and Johnson. All of this is consistent with a planned operation by all four co-actors and is inconsistent with a hypothesis of happenstance, inadvertence, or mere presence at the scene.

Generally the question whether a hypothesis is “reasonable” is for the jury (see Harris v. State, 236 Ga. 242, 244 (223 SE2d 643); Gee v. State, 146 Ga. App. 528 (246 SE2d 720)), and in determining this question, the defendants’ explanations are taken into consideration insofar as they are consistent with the evidence. Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474). Although Hall and Johnson said they knew nothing of the robbery until after Coleman was shot, their separate conduct of examining the scene prior to the robbery, the shout of one of them to the armed robbers to “get him,” and particularly their waiting in the middle of the road while Bradford and Coleman committed armed robbery in the store and before Coleman was shot, are inconsistent with their statements that they did not know of the robbery until after Coleman was shot. The evidence shows to the exclusion of every reasonable hypothesis save that of guilt that Johnson and Hall knowingly waited for Coleman and Bradford to “get” the owner and rob the store. Whether either Johnson or Hall yelled, “That’s him. Get him,” the other knowingly remained in the Pontiac while the armed robbery was being committed, and remained in the car as it sat in the road waiting for the armed robbers to emerge. It cannot reasonably be explained why Hall and Johnson were sitting in their car in the middle of the road, if not to wait for the armed robbery to be committed and to be ready to flee. Hall was driving the getaway car, and it was Johnson’s behavior in “casing the scene” which aroused the owner’s suspicion and made him follow Johnson outside. There exists no reasonable hypothesis consistent with innocence. Accordingly, neither appellant was deprived of a fair trial by the failure to give the circumstantial evidence charge.

Decided August 18, 1993.

Peter J. Flanagan, for appellant (case no. A93A1408).

Richard 0. Ward, for appellant (case no. A93A1409).

Daniel J. Craig, District Attorney, J. Wade Padgett, Stacey R. Kasten, Assistant District Attorneys, for appellee.

2. The “two theories” charge is improper where there is direct evidence (General v. State, 256 Ga. 393 (349 SE2d 701)); moreover, we have recently held that this statement of law does not accurately state the principle addressed and should never be given. Langston v. State, 208 Ga. App. 175 (430 SE2d 365); see Burris v. State, 204 Ga. App. 806 (420 SE2d 582). In any event, there were hot “two theories” in this case, for under the evidence, there is not a reasonable theory consistent with innocence. The charge was unwarranted.

3. Moreover, Johnson was not entitled to the circumstantial evidence charge because he did not request it in writing, and its omission was not clearly harmful and erroneous under the evidence.

We find no cause to reverse these convictions for error under the overwhelming evidence in this case which excludes every reasonable hypothesis except that of appellants’ guilt. Hamilton, supra; Kirkland; supra.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1218.
    GUERRA v. THE STATE.
    (435 SE2d 476)
   Birdsong, Presiding Judge.

Pursuant to grant of a motion for out-of-time appeal, Edwardo Guerra appeals his judgment of conviction of three counts of trafficking in cocaine and the sentence. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). As to Count 1, there exists evidence that appellant put the triple beam scales on the table and assisted the undercover agent in weighing and rewrapping the cocaine; after the sale, appellant took actual possession of the money. Shortly after appellant and two others left the premises where the drug buy averred in Count 1 had occurred, appellant was seen holding “a stack of money” while riding in the black pickup truck that had been parked approximately 200 feet from the same premises. The truck was driven by a co-defendant. As to Count 2, appellant was in the apartment with his co-conspirators and attempted to flee when the police “bust” commenced. Further, there is evidence of record, as to the trafficking in cocaine by unlawful knowing delivery (Count 2), that the undercover agent was given access to the paper bag containing the drugs, and thereby was placed in at least temporary possession of the bag and its contents, so that he could examine the cocaine prior to sale. As to all three counts, there is evidence that appellant was engaged in a conspiracy to sell drugs with Perez and Roura (the owner of the black pickup truck with a large silver grill behind the cab in which the cocaine in Count 3 was seized), and that the conspiracy was on-going at the time the offenses in Counts 1-3 were committed.

“ ‘The question of the existence of a conspiracy is ultimately for the jury to determine.’ ” Boatwright v. State, 193 Ga. App. 141, 142 (1) (387 SE2d 386). While mere presence at the crime scene is not sufficient to convict one of being a party to a crime, criminal intent may be inferred from conduct before, during, and after the commission of the crime. Sands v. State, 262 Ga. 367, 368 (2) (418 SE2d 55). “ ‘Presence, companionship and conduct before and after the commission of the alleged offense [s] may be considered by the jury and are circumstances which may give rise to an inference of the existence of a conspiracy.’ ” Stroud v. State, 154 Ga. App. 852 (2) (270 SE2d 69). Further, “[f] light is circumstantial evidence of consciousness of guilt; the weight to be given such evidence is for the jury to decide.” Green v. State, 206 Ga. App. 42, 44 (3) (424 SE2d 646). “It is not necessary to prove an express agreement between two [or more] co-conspirators in order to prove the existence of a conspiracy. The state need only prove that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective. [Cit.] Conduct of co-conspirators, i.e., conduct which discloses a common design, may give rise to an inference of a conspiracy.” Duffy v. State, 262 Ga. 249, 250 (1) (416 SE2d 734). Conspiracy may be proven by direct or circumstantial evidence. See Harris v. State, 255 Ga. 500, 501 (2) (340 SE2d 4). “[W]hen individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one or more of the conspirators is in legal contemplation the act of all.” (Citations and punctuation omitted.) Boatwright, supra at 142 (1). Circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). The jury rationally could have found that the admissible evidence of record excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of all offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Applying the balancing test of Roviaro v. United States, 353 U. S. 53, 62 (77 SC 623, 1 LE2d 639), as adopted by Thornton v. State, 238 Ga. 160, 163-164 (231 SE2d 729), we find the trial court did not err in refusing to require the State to disclose the identity of the confidential informant. The record disclosed that, during the sale of cocaine (Count 1), Scott Meyers, the owner of the premises, was at home that day and was aware of what was going on. Neither the State nor the defense elected to call Scott Meyers as a witness. The record does not affirmatively establish that the undisclosed confidential informant witnessed the transfer of cocaine (Count 2). There is some evidence that, although on the premises, the informant “wasn’t in that [sale] area when the transaction took place.” The record does not establish that the informant participated in either the sale or subsequent transfer of drugs (Counts 1 and 2); the record does not establish that the informant was present when the drugs were placed into the black pickup truck (Count 3). Although appellant elected not to testify in his own behalf, he called as a witness the co-conspirator, Perez, who testified that appellant did not take part in and was unaware of any sale, transfer, or possession of cocaine. According to Perez, appellant was merely present at the first and second crime scene by happenstance and was not criminally involved with the cocaine incidents. Under the existing circumstances, we find that balancing “ ‘the public interest in protecting the flow of information against the individual’s right to prepare his defense’ ” (Moore v. State, 187 Ga. App. 387, 389 (2) (370 SE2d 511); accord Thornton, supra; Roviaro, supra), the public interest prevails. Compare Milsap v. State, 196 Ga. App. 820 (1) (397 SE2d 168) and Stevens v. State, 199 Ga. App. 563 (1) (405 SE2d 713) with Moore, supra.

3. The trial court did not err in admitting tapes of various conversations between the undercover officer and appellant’s co-conspirators.

(a) The evidence of record is sufficient to establish beyond a reasonable doubt the existence of a criminal conspiracy at least between appellant, Perez, and Roura at the time the conversations occurred and the tapes thereof were made. “ ‘ “ ‘[H]earsay statements made by a conspirator during the course of a conspiracy, including the concealment phase, are admissible against all conspirators.’ ” ’ ” Duffy, supra at 250-251. At the time these tapes were admitted, circumstantial evidence of conspiracy was before the jury. OCGA § 24-3-5. Further, as in Morgan v. State, 206 Ga. App. 132, 134 (2) (424 SE2d 92), no challenge has been made on appeal (or at trial) to the “timing of proof of the existence of a conspiracy,” that is, that the tapes were admitted before such proof was before the factfinder. Thus, such challenge has been waived on appeal. Moreover, “ ‘ “[t]he trial judge may admit testimony [or statements] by co-conspirators before the conspiracy has been proved, provided that such existence is afterwards shown during the trial.” ’ ” Birchfield v. State, 205 Ga. App. 870, 871 (1) (424 SE2d 66). Compare Castell v. State, 250 Ga. 776, 778 (1a) (301 SE2d 234), rev’d on other grounds, 252 Ga. 418 (314 SE2d 210) and Knight v. State, 239 Ga. 594, 599 (2) (238 SE2d 390).

(b) A tape, State’s Exhibit No. 8, was admitted without objection. Certain objections were posed as to two tapes of the undercover officer’s conversation with co-conspirators during the drug transactions (State’s Exhibit Nos. 7 and 9). However, appellant subsequently stipulated that Detective Skinner was the person who operated the recording device and that he “knows how to operate a tape recorder.” At trial, appellant’s counsel stated on the record that he had no foundation objection as to State’s Exhibit Nos. 7 and 9. Appellant’s counsel clarified on the record that his only remaining objection to the introduction of these tapes was “as to the clarity. It’s just a lot of static.” The record establishes that, after being made, the tape had not been subject to changes, additions, or deletions, and there is no evidence of tampering. “[T]he fact that a tape is not flawless does not mean that it is inadmissible.” Thomas v. State, 240 Ga. 393, 399 (2) (242 SE2d 1). Initially, the issue of audibility is addressed to the trial court’s discretion and is not per se a disqualifying factor. Wigfall v. State, 257 Ga. 585, 586 (2) (361 SE2d 376). While the preferred procedure is for a trial court to review tapes before admitting them, this is not mandatory. When tapes are admitted in evidence without prior inspection by the trial court, as apparently occurred in this case, the defense should renew its objections after the tapes are played to the jury, making specific objections as to any deficiencies of such significance as to establish a breach of trial court discretion as to its ruling. In any event, once tapes are admitted in the exercise of trial court discretion, in the absence of a showing of tampering, alteration, or other major deficiency attacking the basic integrity of the recordings, the fact that portions of the tapes are inaudible goes to weight and not admissibility. Moreover, on appeal appellant “does not aver that there was anything favorable to him in that [inaudible] portion of the tape . . . and we are led to the conclusion that he was not harmed thereby.” Harris v. State, 237 Ga. 718, 725 (5) (230 SE2d 1).

Decided August 23, 1993.

Joseph C. Iannazzone, for appellant.

Daniel J. Porter, District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1459.
    RACHELL v. THE STATE.
    (435 SE2d 480)
   Birdsong, Presiding Judge.

Pursuant to a grant of partial habeas corpus relief, Alfred Rachell was granted authorization to file an out-of-time appeal of his conviction of three counts of armed robbery, two counts of rape, and one count of burglary. He enumerates three errors. This court considered the appeal of appellant’s co-accomplices and affirmed their judgments of conviction. Hambrick v. State, 175 Ga. App. 207 (332 SE2d 907). Held:

1. Judicial notice is taken of the records in appellate Case Nos. 70048 and 70123 and the transcript pertaining thereto, all of which relate to Indictment No. 83-CR-2769 and are currently on file with this court. Rogers v. State, 195 Ga. App. 446, 447 (1) (394 SE2d 116).

2. Appellant asserts there is insufficient evidence to authorize the trial court to find the State proved by a preponderance of the evidence the voluntariness of appellant’s confession and the existence of a timely Miranda rights warning and waiver.

(a) On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). In resolving appellate issues as to confession voluntariness and whether appellant was adequately advised of and waived his Miranda rights, an appellate court may consider all evidence of record, not merely that introduced at the Jackson-Denno hearing. See Robinson v. State, 194 Ga. App. 432, 433 (2) (390 SE2d 652).

(b) Following a Jackson-Denno hearing, the trial court admitted appellant’s two pretrial statements regarding the Rowe incident and the Rigdon incident, respectively. Inherent in its ruling was a finding that the statements were made freely and voluntarily. The evidence was in conflict as to whether appellant made the statements because of coercion, threats or improper inducements or promises, and whether he had freely and voluntarily waived his Miranda rights. “ ‘Factual and credibility determinations [, whether express or implied,] as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous.’ ” Mathis v. State, 192 Ga. App. 772, 773 (2) (386 SE2d 532); see generally Peebles v. State, 260 Ga. 430 (396 SE2d 229). The trial court’s ruling admitting the statements and finding that the threshold requirement for establishing voluntariness had been met was supported by evidence of record and was not clearly erroneous in any event. Also, “[o]nce Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights.” Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111); Barrs v. State, 202 Ga. App. 520, 521 (414 SE2d 733).

Additionally, the record establishes that just before each of the two statements was obtained, appellant signed two separate Miranda rights waiver forms (SE Nos. 17-18). In addition to the waiver of rights provisions, each form contained a statement of Miranda rights. Appellant not only was allowed to read and sign these forms but was read each form by the investigator. We find that any statements by appellant after these waiver documents were read to and executed by him, were knowingly and voluntarily given, as were the waivers of Miranda rights which preceded such statements. Compare Reinhardt v. State, 263 Ga. 113, 115 (4) (428 SE2d 333), citing Oregon v. Elstad, 470 U. S. 298, 309 (105 SC 1285, 84 LE2d 222).

3. Appellant’s claim of inadequacy of trial counsel is without merit.

(a) The applicable appellate standard is the two-prong test of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). Williams v. State, 207 Ga. App. 418, 419 (427 SE2d 787). At the inadequacy of counsel hearing conducted approximately nine years after trial, appellant was unable to specify any particular performance of his trial counsel which fell below an objective standard of reasonableness, although he cited several general areas of perceived dissatisfaction (including the fact he was convicted and believed his counsel could have performed better).

Appellant admitted that in 1983, he does not think he would have been willing to enter into plea negotiations, as he wanted to go to trial because he was innocent.

In support of his claim of inadequate counsel, appellant asserts that his “failure to testify . . . converted trial by jury into an extended guilty plea,” but concedes that “the trial record provides no clue as to the reason for [his] failure to testify.” Thereafter, appellant decried his trial counsel’s lapse of memory at the hearing, particularly counsel’s failure to recall precisely (and bare speculation as to) why his client did not testify in his own behalf at trial. At no time during the hearing did appellant expressly claim that he desired to testify in his own behalf and that he was precluded from doing so by the acts or omissions of his trial counsel. We find the existence of no evidence which supports appellant’s tacit appellate argument that trial counsel, rather than appellant, made the determination that appellant would not testify in his own behalf at his trial.

Decided August 23, 1993.

John H. Tarpley, Lawrence L. Schneider, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

A strong presumption exists that trial counsel’s performance, in any given case, falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered strong trial strategy. Ferrell v. State, 261 Ga. 115, 119-120 (3) (401 SE2d 741), citing Strickland, supra at 689. “The burden was on appellant to establish he received ineffective assistance of trial counsel.” Van Alstine v. State, 263 Ga. 1, 4 (426 SE2d 360). Appellant has failed to carry his burden and has failed to overcome the broad presumption of effective assistance of counsel.

(b) Appellant’s contention that because he was “deprived of the assistance of jailhouse counsel,” he “was quite unable to articulate the reasons for his dissatisfaction with his trial [counsel’s] representation” is without merit. An appellant is not entitled to representation by third-party, non-lawyer counsel. Compare Cruickshank v. State, 258 Ga. 544 (1) (372 SE2d 223); Lebrun v. State, 255 Ga. 406 (339 SE2d 227).

(c) All other claims in support of this enumeration have been abandoned. Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1649.
    PRINCE v. ATLANTA COCA-COLA BOTTLING COMPANY.
    (435 SE2d 482)
   Birdsong, Presiding Judge.

Lisa Prince appeals from the grant of summary judgment to defendant Atlanta Coca-Cola Bottling Company, a division of Coca-Cola Enterprises, Inc. (ACCBC). Defendant Phar-Mor, having filed a notice of bankruptcy petition in the United States Bankruptcy Court for the Northern District of Ohio, is not a party to this appeal.

Phar-Mor sponsored a promotional event featuring entertainment by a live radio station and refreshments from a special events wagon of ACCBC. Appellant was crossing the parking area to enter the Phar-Mor store to make a purchase when she slipped and fell, apparently in a puddle of water which leaked from the ACCBC special events wagon.

Appellant filed suit for injuries, claiming, inter alia, that ACCBC contracted with Phar-Mor to provide refreshments during the promotional event; that being distracted by various activities which Phar-Mor created by inviting a local radio station to perform during the promotional, appellant was not aware or made aware by defendants of the water puddle which had formed near the ACCBC trailer where defendant Coca-Cola was serving refreshments; that plaintiff was injured when she went through this puddle, slipped and fell; that ACCBC was negligent in failing properly to maintain the area surrounding its refreshment trailer; that ACCBC was negligent in allowing drain water from the trailer to accumulate around the area knowing the condition was dangerous; that ACCBC was negligent by failing to warn appellant of this slippery, dangerous, and unsafe condition; and that her injuries were a direct and proximate result of ACCBC’s negligence and breach of duty.

An affidavit filed by ACCBC’s plant manager in support of its motion for summary judgment reflects these uncontroverted facts: a Coca-Cola special events wagon was provided to Phar-Mor, at the latter’s request, for a Phar-Mor event; ACCBC did not charge Phar-Mor for the use of the wagon; “Phar-Mor and its customers paid only for the [wagon] set-up and the products that Phar-Mor sold from the wagon”; the wagon was delivered to the Phar-Mor facility by an ACCBC employee and placed in the parking lot at the location instructed by Phar-Mor employees; ACCBC did not provide employees to staff the wagon; the wagon was staffed by Phar-Mor employees who served soft drinks and food from the wagon; ACCBC neither owns, nor operates, nor has any control over the premises where the incident occurred; ACCBC neither manufactured nor designed the wagon. ACCBC had no knowledge of the incident until several months later. Held:

1. On 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 [opposing] party.” Langford v. Royal Indent. Co., 208 Ga. App. 128 (1) (430 SE2d 98). Nevertheless, a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case. Instead, “the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). If the moving party discharges this burden, as in this case, the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue. Id.

2. The parties in this case have advanced various theories of premises liability; however, any liability of ACCBC for the injury of appellant is controlled by the law of bailment, specifically the legal duty, if any, owed by a bailor (ACCBC) for the injuries sustained by appellant (third party) as a result of an alleged defect of the bailed chattel (the special events wagon). See generally OCGA § 44-12-40. Phar-Mor, not ACCBC, was the occupier of the land where the incident occurred. Compare Church’s Fried Chicken v. Lewis, 150 Ga. App. 154 (256 SE2d 916).

OCGA § 44-12-63 establishes the obligations of a bailor for hire and pertinently provides: The obligations of the bailor of things are: “(2) To keep the thing in suitable order and repair for the purposes of the bailment; and (3) To warrant the right of possession and that the thing bailed is free from any secret fault rendering it unfit for the purposes for which it is hired.” See generally Parker v. Loving & Co., 13 Ga. App. 284 (79 SE 77). Hertz Driv-Ur-Self &c. v. Benson, 83 Ga. App. 866, 874 (3) (65 SE2d 191) in effect “recognizes that the bailor, entrusting [a chattel] to [a bailee] for immediate operation, has a duty of using ordinary care to ascertain that the [chattel] has no hidden defects rendering it dangerous, and that this duty extends to those persons within the range of foreseeable operation of the [chattel]. . . . Since the bailor’s duty extends to persons other than the parties to the actual bailment contract, the limits of the bailor’s liability are not to be determined alone by the provisions and warranties of the contract of bailment, but also by the limits imposed by the doctrine of proximate cause, that is, whether the defendant [ACCBC] should have foreseen the consequences of [its alleged] negligence, as a natural and probable result.”

But, if the “ ‘bailment is purely gratuitous, and created for the exclusive benefit of the bailee, as where articles are loaned to another simply for his own use, without any reward or compensation being received from him by the lender, the bailor’s only duty in respect of defects is to inform the bailee of any of which he is aware and which might make the use of the subject of the loan perilous to the bailee or to his servants.’ ” (Emphasis supplied.) Howell v. Amerson, 116 Ga. App. 211 (2) (156 SE2d 370); accord Butler v. Shirah, 154 Ga. App. 111 (1) (267 SE2d 647). “Thus, it is essential that a bailor use ordinary care to inspect the bailed article before delivery to ascertain if it was in a reasonably safe condition to avoid injury to another.” Hall v. Skate Escape, 171 Ga. App. 178, 179 (319 SE2d 67). “A bailor violating his obligation to furnish property reasonably fit for the purpose for which hired [or his obligation to inspect the bailed article before delivery to ascertain if it was in reasonably safe condition] may be liable to third persons using such property, at the bailee’s invitation, for injuries caused by its being in improper condition when delivered to the bailee, but not for injuries resulting from a dangerous condition which arises after delivery, and a bailor intrusting a dangerous article to his bailee, knowing that it will be used in such a manner as to endanger persons and property; is liable for any injury which, by the exercise of ordinary prudence, he could have foreseen.” (Emphasis supplied.) 8 CJS, Bailments, § 97.

Whether a bailment is gratuitous has on occasion presented an issue for the factfinder. See Lakeside Ford v. White, 159 Ga. App. 182 (283 SE2d 47). Normally, however, “the character of a particular bailment, whether gratuitous or not, is to be determined by the contract between the parties to it.” Merchants Nat. Bank of Savannah v. Guilmartin, 88 Ga. 797, 804 (2) (15 SE 831). In determining whether a bailment is gratuitous or one for hire, “the possibility of some undisclosed benefit is not enough to render the bailment one for hire; there must be an understanding or arrangement, express or implied, between the parties, whereby the bailee has received or has a right to expect and demand something for his benefit. [Cit.] Casual or incidental benefits which he would have to surrender at the will of the bailor, do not amount to a consideration. There must be a compensation of some sort actually contemplated in the contract and bargained away by the bailor.” Id. at 804-805 (2). Absent an agreement or exchange of promises for the lending of a chattel (in this instance the wagon itself), which is supported by consideration, award, or compensation, the most that may be inferred from the act of lending is that the bailor had some self-serving motive; a showing of bare motive, however, does not establish that consideration, award, or compensation necessary for a bailment for hire. See Butler, supra at 112 (1). In such circumstances, “the evidence presented requires a holding that the lending of the [special events wagon] by [ACCBC] was gratuitous and entirely for the benefit of the bailee [Phar-Mor].” Id. Compare Meriwether County v. Creamer, 146 Ga. App. 651, 654 (4) (247 SE2d 178) where this court concluded that the evidence failed to establish a bailment of a fire truck was purely gratuitous when it was for the benefit of the county in order to develop civil defense units.

In this case, the affidavit of the plant manager of ACCBC met appellee/movant’s burden under Lau’s Corp., supra, to point out “an absence of evidence” to support appellant’s claim that appellee contracted with Phar-Mor to provide refreshments in the Coca-Cola special events wagon under a bailment for hire. As appellee so discharged its burden, appellant/nonmovant could not rest on its pleadings. However, appellant has failed to come forward and' “point to specific evidence giving rise to a triable issue” under a gratuitous bailment claim. See generally Lau’s Corp., supra. As a gratuitous bailor, defendant ACCBC had no legal duty to maintain properly the area surrounding the refreshment wagon as averred in the complaint, particularly after the wagon was delivered and placed under the bailee’s control for its use. Likewise, ACCBC had no legal duty to prevent drain water from the wagon from accumulating around the surrounding area, as such accumulation (whether or not giving rise to a dangerous condition) occurred only after the delivery of the chattel to the bailee. Likewise, ACCBC had no legal duty to warn appellant of any slippery, dangerous, or unsafe conditions existing in the vicinity of its refreshment stand when such condition arose from water being allowed to drain on the ground after the wagon had been delivered and placed under the bailee’s control. Further, the complaint does not reasonably give notice of the averment of any products liability claim against ACCBC for negligent design or manufacture of the wagon, and the plant manager’s affidavit expressly states the fact, without controversion, that ACCBC did not design or manufacture the bailed chattel.

Decided August 23, 1993.

Greer, Klosik & Daugherty, Charles M. Morris, for appellant.

Neely & Player, Edgar A. Neely, Jr., William C. Thompson, Laura A. Shaw, Gleaton, Scofield & Egan, W. Seaborn Jones, for appellee.

Applying the summary judgment standard of Lau’s Corp., supra, we conclude the trial court did not err in granting summary judgment to appellee ACCBC; appellant’s contentions in support of her enumeration of error are without merit.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.