author: Pope, Presiding Judge. Blackburn, Judge,

text:
    A97A2051.
    LOCKHART et al. v. SOUTHERN GENERAL INSURANCE COMPANY.
    (498 SE2d 161)
   Pope, Presiding Judge.

The sole issue before us is whether the superior court properly granted summary judgment to Southern General Insurance Company in this direct action pursuant to OCGA § 46-7-58 (e). Because we are constrained both by prior cases and the statutory scheme to so rule, we conclude that the superior court’s decision was proper.

This lawsuit arose from a December 22, 1994 accident in which Glenn Lockhart’s automobile struck a tractor-trailer driven by Richard Murray. On April 4, 1995, Lockhart and his wife Myra sued Murray and Southern General Insurance Company. The Lockharts alleged that Murray was a motor common carrier and that, because Southern General had issued liability insurance to Murray, the insurer was liable pursuant to OCGA § 46-7-58 (e). In their answers to the complaint and to discovery, both Murray and Southern General admitted that Murray had filed neither a bond nor an insurance policy in lieu of bond with the Public Service Commission (PSC). Both Murray and Southern General asserted that Murray was exempt from registration with the PSC because he hauled unmanufactured forest products.

Southern General filed a motion for summary judgment, arguing that it was not liable because the Lockharts failed to prove the essential elements of their right to proceed directly. Specifically, Southern General contended that the vehicle which Murray was driving had not been registered with the PSC, nor had a bond or a liability insurance policy in lieu of bond been filed with the PSC at the time of the accident. With its motion Southern General filed the affidavit of Lucia Ramey, the Director of Compliance & Safety of the Transportation Division of the PSC, in which she confirmed that her records indicated that Murray was not registered with the PSC as a motor common or motor contract carrier, and that no certificate of insurance had been filed indicating that Southern General Insurance Company was the insurance carrier for Murray.

In response to the motion, the Lockharts asserted that Murray was not exempt from registering with the PSC and that Southern General had subjected itself to OCGA § 46-7-58 (e) by issuing an insurance policy to Murray, who it was aware was a non-exempt motor contract carrier. The Lockharts filed a second affidavit of PSC official Ramey, stating that to satisfy the requirements of OCGA §§ 46-7-12 (c) and 46-7-58 (c), the PSC required the insurer of the motor carrier to file a certain “Form E” or certificate of insurance.

This case was stayed pending the resolution of Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613 (472 SE2d 325) (1996), in which Murray Trucking, Southern General, and a virtually identical legal question were involved. After this Court issued its decision in Waymond, Southern General was granted summary judgment in this case.

Because the facts before the court in Waymond were virtually identical to those here, the resolution of this case is — as the superior court correctly determined — controlled by that case. In Waymond, this Court concluded that in order to maintain a direct action against the insurer under OCGA § 46-7-12 (e) or § 46-7-58 (e), a plaintiff must prove that — in lieu of bond — an insurance policy was filed with and approved by the PSC. The court further determined that the motor carrier, not the insurer, had the obligation of filing the insurance policy with the PSC. This Court reached the same conclusion in Canal Ins. Co. v. Farmer, 222 Ga. App. 539 (474 SE2d 732) (1996).

Here, as in Waymond and Farmer the PSC records reflected that neither a bond nor an insurance policy was filed with, nor approved by, the PSC. Furthermore, it was undisputed that Murray was not registered with the PSC as a motor common or motor contract carrier. In the absence of this evidence, this Court has concluded previously that no direct action against Southern General is allowable. See also Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (1) (359 SE2d 351) (1987).

The Lockharts’ argument that Southern General is liable because it was aware that Murray Trucking was subject to PSC regulation is without merit. This Court addressed this argument in Waymond and concluded that whether Southern General was aware of Murray Trucking being subject to PSC regulation had no bearing on the insurer’s liability, stating: “[assuming arguendo, however, that Murray Trucking was subject to PSC regulation and that Southern General had knowledge of this fact, neither the direct action statute nor Glenn McClendon provides an exception when the insurer had or should have had such knowledge. We find nothing in this Court’s holding in Glenn McClendon that authorizes an exception to the rule that an essential element of proof is evidence of filing with and approval of a policy by the PSC. Waymond is attempting to impose a responsibility on Southern General not provided for by the statute, a statute that must be strictly construed. This responsibility of filing a bond or insurance policy in lieu of bond is with the motor carrier, not the insurer. OCGA §§ 46-7-53 (a); 46-7-58 (a).” Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. at 615-616. The Lockharts’ argument that the evidence regarding the PSC rules alters this conclusion is without merit. Contrary to the position taken by the dissent, the logistical requirements the PSC has regarding the Form E do not resolve the question of whether the insurer’s obligation to file the form ever arises in the first place.

Although the fact that there is no statutory obligation for the insurer to file proof of the policy may partially subvert the statute’s purpose, see Canal Ins. Co. v. Farmer, 222 Ga. App. at 541 (Pope, P. J., concurring specially), it is the role of the legislature — not of this Court — to remedy any such loophole. The present statutory scheme simply does not require an insurer to file a policy for a motor carrier which is not registered with the PSC.

Our Supreme Court illuminated this policy in the recently decided Ross v. Stephens, 269 Ga. 266 (496 SE2d 705) (1998). In Ross, the court resolved that when a motor common carrier’s vehicle was not specifically described in the insurance policy, the PSC Form F regarding the statutory minimum coverage controlled the amount of coverage, regardless of the amount of coverage provided for in the individual policy. In so deciding, the court stated: “A motor [contract] carrier may not operate in Georgia without obtaining from the PSC a certificate of public convenience and necessity [(OCGA § 46-7-53)], and a certificate is not issued unless the applicant gives and maintains bond, with adequate security ‘for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants, or its agents.’ [OCGA § 46-7-58 (a).] In lieu of bond, the certificate holder may file a policy of indemnity insurance which is approved by the commission and substantially conforms to all the statutory provisions relating to bonds [(§ 46-7-58 (c))], or the commission may permit a motor [contract] carrier to self-insure. [OCGA § 46-7-58 (d).] Whatever means the [contract] carrier chooses to evidence its potential financial responsibility to the motoring public, the bond, insurance or self-insured plan ‘is a direct and primary obligation’ to any person who sustains actionable injury or loss as a result of the negligence of the [contract] carrier or its agents. [Cit.]” Ross v. Stephens, 269 Ga. 266-267. Under the present statutory scheme, it is not the role of the insurer to register the contract carrier with the PSC, nor is it the insurer’s responsibility to file the insurance policy. That obligation is the carrier’s.

Moreover, in order to take the position of the dissent, it would be necessary to overrule not only Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613, but also Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508; Canal Ins. Co. v. Farmer, 222 Ga. App. 539; and the recently decided Caudill v. Strickland, 230 Ga. App. 644 (498 SE2d 81) (1998).

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Beasley, Johnson, Smith, Ruffin and Eldridge, JJ, concur. McMurray, P. J., and Blackburn, J., dissent.

Blackburn, Judge,

dissenting.

I respectfully dissent from the decision of the majority, which relied upon Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613 (472 SE2d 325) (1996), which was wrongly decided. Southern Gen. involved the same issues as the present case. Each of the cases arose out of a collision between a log truck and trailer insured by Southern General and a vehicle driven by another. In each case, the plaintiff joined Southern General in its action against the tortfeasor under the authority of OCGA § 46-7-12 (e). Summary judgment was improper in this case and in Southern Gen. because an insurance company cannot create a defense to being named a party in a direct action pursuant to OCGA § 46-7-12 (e) by the simple expedient of failing to satisfy its duty to file an appropriate certificate with the PSC regarding a non-exempt motor contract carrier to which the insurance company has extended coverage.

The majority in each case holds that a plaintiff, in order to bring a direct action, must prove a bond or an insurance policy was filed with the PSC and approved by it. The majorities further hold that this rule applies even where the insurance company knows or should know that the motor carrier is subject to PSC regulation, as it is the motor carrier and not the insurance company, who has the responsibility of filing a bond or insurance policy with the PSC.

Indeed, as a result of this holding, the majorities did not even address the issue in either case of whether the defendant trucker was exempt from PSC regulation as a hauler of agricultural products under OCGA § 46-1-1 (9) (C) (x) (amended OCGA § 46-1-1 (7) (Q). Recognizing the inequity of its holding, however, the majority in the present case contends that it is up to the legislature to close this loophole, which allows an insurance company to defeat a plaintiff’s statutory right to add them as a party in a direct action, by failing to perform their legally imposed duty to file a Form E, Certificate of Insurance. I believe, however, that the loophole which causes the majority’s concern does not exist.

At its core, the majority’s opinion relies upon the view expressed in Southern Gen., that an insurance company has no duty to make filings with the PSC, focusing specifically on the filing of bonds or insurance policies. This focus is too narrow. Lucia Ramey, Director of Compliance & Safety of the Transportation Division of the Georgia Public Service Commission, testified that, since 1979, the PSC has neither approved nor accepted for filing policies of insurance. Instead, prior to issuing a certificate to a motor common carrier or motor contract carrier, the PSC requires the insurance company to file a Certificate of Insurance, designated “Form E.” PSC Rules 1-8-1-.01 and 1-8-1-.07. Form E, which must be signed by an authorized representative of the insurance company, includes a certification by the insurance company that a policy has been issued, an agreement by the insurance company to file duplicates of the insurance policy if requested, and an agreement by the insurance company to give the PSC notice if the policy is cancelled. Clearly, then, Form E places the onus for filing on the insurance company, not the motor carrier. The majority in this case, however, contends that the logistical requirements imposed by the PSC with regard to Form E do not resolve the question of the insurer’s obligation to file such form. However, , the demands for present and future information and compliance by the insurance company, which the majority discounts as merely logistical, are nonetheless requirements of the insurance company, not requests. As such, there should be no question that the insurance company would be obligated to file its Form E answer which is required by the PSC.

Thus, it cannot accurately be said that an insurance company has no duty to make filings with the PSC. In fact, just the opposite is true. Therefore, if an insurance carrier knows or should know that a motor contract carrier to which it has issued a policy should be registered with the PSC and is not exempt therefrom, it does have a duty to file an appropriately completed Form E. Furthermore, Ross v. Stephens, 269 Ga. 266 (496 SE2d 705) (1998), which is cited by the majority, does not negate any duty of an insurer to file with the PSC. In addition, it must be noted that in Ross, the insurance company, not the motor common carrier, filed the certificate of insurance and Form F with the PSC.

Accordingly, it becomes not only necessary, but pivotal, in Southern Gen., in this case, and in others like it, to determine whether the motor carrier was exempt from the registration requirements of the PSC, thereby relieving the insurance company of its duty to file Form E.

OCGA § 46-1-1 (9) (A) defines a motor contract carrier as “every person, except common carriers, owning, controlling, operating, or managing any motor propelled vehicle . . . used in the business of transporting persons or property for hire over any public highway in this state and not operated exclusively within the corporate limits of any city.” In turn, OCGA § 46-1-1 (6) defines “for hire” as “an activity wherein for compensation a motor vehicle and driver are furnished to a person by another person, acting directly or knowingly and willfully acting with another to provide the combined service of the vehicle and driver, and includes every person acting in concert with, under the control of, or under common control with a motor carrier who shall offer to furnish transportation for compensation.”

The Georgia Code exempts certain carriers from the categories of motor contract carrier and motor common carrier. OCGA § 46-1-1 (9) (C) (x) exempts “[m]otor vehicles engaged exclusively in the transportation of agricultural or dairy products, or both, between farm, market, gin, warehouse, or mill, whether such motor vehicle is owned by the owner or producer of such agricultural or dairy products or not, so long as the title remains in the producer. . . . [T]he term 'agricultural products’ includes . . . lumber . . . and timber or logs being hauled by the owner thereof or [the owner’s] agents or employees between forest and mill or primary place of manufacture.” The burden of proof as to whether this exemption is applicable in a given case lies with the party claiming it. Ga. Cas. &c. Co. v. Jernigan, 166 Ga. App. 872, 874 (1) (305 SE2d 611) (1983).

Summary judgment in this case was clearly improper because Southern General failed to meet its burden of establishing its insured’s entitlement to this exemption, thereby alleviating itself from a duty to file Form E. Southern General failed to prove that Murray was engaged exclusively in the transportation of timber, that title to such timber remained in its producer, and that Murray was acting as an agent or employee of the owner of the timber, each of which was necessary in order to establish an entitlement to an exemption.

Southern General contends, however, that the exemption from classification as a motor common or motor contract carrier set out in OCGA § 46-1-1 (9) (C) (xi) for “unmanufactured agricultural products” should be applicable to Murray. Southern General argues that the term “unmanufactured agricultural products” used in division (xi) should include logs and timber, notwithstanding the fact that logs and timber are not specified therein.

This issue has been decided adversely to Southern General by this Court. Southern General’s “contentions are fatally flawed. . . . [H]ad the legislature intended [logs and timber] to be included, they would have specifically listed [them] within the terms of the exemption as they did in division (x). Furthermore, a statute shall be construed so as to give full force and effect to all of its provisions and so as to reconcile any apparent conflicts. Division (x) contains specific restrictions which must be met by carriers of [timber and logs] in order to qualify for the exemption. These restrictions are not contained in the exemption provided in division (xi). If [logs and timber were] included within the term ‘unmanufactured agricultural products’ under division (xi), the restrictions of division (x) would be rendered meaningless, which is contrary to the rules of statutory construction.” (Citations and punctuation omitted.) Stewart v. Liberty Mut. Ins. Co., 221 Ga. App. 813, 814 (472 SE2d 704) (1996). Accordingly, this exemption does not apply to Murray, and Southern General is not relieved of its duty to file a Form E with the PSC.

Decided March 18, 1998

It should be remembered that “[t]he purpose of permitting joinder of the [insurance [c]ompany in a claim against [a] common carrier is to further the policy of the Motor Carrier Act, that is, to protect the public against injuries caused by the motor carrier’s negligence.” Andrews v. Yellow Freight System, 262 Ga. 476 (421 SE2d 712) (1992). We should not allow this intended protection to be diminished by allowing an insurance company to avoid direct actions by failing to satisfy its duty to file an appropriate certificate with the PSC regarding a non-exempt motor contract carrier to which the insurance company has extended coverage.

In Southern Gen., this Court ignored the filing by insurance carriers of Form E pursuant to the requirements of PSC regulations which imposed such a duty and the fact that bonds and policies have not been filed with the PSC since 1979. It is inappropriate for this Court to defeat the statutory right given by the legislature to the public to join insurance carriers under the facts of this case, by a narrow reading of OCGA § 46-7-58 (e) and the ignoring of applicable PSC regulations and of the practice of the PSC in such matters since 1979. All applicable statutes and rules must be read together to determine the intention of the regulations.

It is little wonder that no amendment to the statute has ever been sought, as plaintiffs rarely have but a single case, and it works totally to the advantage of insurance carriers in its present state under the erroneous holding of this Court.

To the extent that it purports that an insurer who knows or should know that its insured is a motor contract carrier, I would overrule Southern Gen. and reverse the trial court’s holding and the majority’s affirmance thereof in the present case, each of which was controlled by said case.

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

Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Preyesh K. Maniklal, Terrance, Patrick, Leiden & Associates, Terry Leiden, Zane P. Leiden, for appellants.

Glover & Blount, Percy J. Blount, Michael J. Moses, for appellee.

       OCGA § 46-7-12 (e) provides for direct actions against motor common carriers; § 46-7-58 (e) provides equivalently for direct actions against motor contract carriers. Although in the court below the parties interchanged the statutes, we will refer consistently to the provisions regarding motor contract carriers (OCGA § 46-7-50 et seq.).

       And, contrary to the Lockharts’ contentions, the Court made no determination in Southern Gen. Ins. Co. v. Waymond regarding whether Murray was exempt from regulation under OCGA § 46-1-1 (7) (C) (x) or (xi) (now designated as OCGA § 46-1-1 (9) (Q). In this regard, see Smith v. Southern Gen. Ins. Co., 222 Ga. App. 582 (474 SE2d 745) (1996), in which this Court concluded that because there was no dispute that the insured was acting as a timber hauler, no direct action could be maintained against it. Because it is not necessary to our holding here, we do not address the Lockharts’ argument that Smith did not properly consider all of the requirements of OCGA § 46-1-1 (7) (C) (x).


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A2201.
    CHAMBERS v. NAVARE.
    (498 SE2d 173)
   Beasley, Judge.

Pursuant to the Uniform Enforcement of Foreign Judgments Law (“UEFJL”), Texas resident Chambers filed in Cobb County State Court a judgment obtained in the small claims court of Travis County, Texas, by default in his favor against Georgia resident Navare. The Georgia court granted Navare’s motion to set aside the Texas judgment, and we granted Chambers’ application for discretionary appeal.

1. “Under the full faith and credit clause of the United States Constitution, a judgment of a foreign court will be enforced by the courts of this State.” The uniform law provides a procedure for filing and enforcing foreign judgments in this state. “A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.”

OCGA § 9-11-60 allows relief from judgments, including setting one aside when there is a lack of personal jurisdiction. Such action by the Georgia court in this case will not affect enforceability in Texas or elsewhere. “The effect, in the foreign state, of a Georgia court’s setting aside the domesticated judgment would only affect its enforceability here.” Were it a Georgia judgment instead, a Georgia court’s setting aside the judgment would end its viability altogether. Thus, the court had authority to grant Navare’s motion.

2. Chambers asserts Navare was subject to personal jurisdiction in the Texas court, “If the foreign judgment was obtained by default, no presumption of personal jurisdiction exists, and the burden is on the party seeking to domesticate the judgment to negate the defense of lack of jurisdiction. [Cit.]” Texas law controls whether the Texas court had jurisdiction.

Chambers has not met his burden. Together with his “Notice of Suit for Enforcement of Foreign Judgment,” Chambers filed a certified copy of the Texas judgment and a certificate of the Secretary of State showing that two copies of the citation and petition in the Texas action were served upon the Secretary of State, that a copy was forwarded by certified mail/return receipt requested addressed to Navare at a Georgia address, and that it was returned and marked “UNCLAIMED.” Chambers did not file the complaint from the Texas action or any other documents showing the basis of his claims against or jurisdiction over Navare.

“A Texas court may exercise jurisdiction over a nonresident if two conditions are met. First, the Texas long-arm statute must authorize the exercise of jurisdiction. Second, the exercise of jurisdiction must be consistent with federal and state constitutional guarantees of due process. See TEX. CIV. PRAC. & REM. CODE ANN. § 17.041-§ 17.069 (Vernon 1986).” We need not reach the second condition because the first was not satisfied.

Texas law requires that “[t]o support a default judgment . . . [tjhere must be proof in the record of service of process on the defendant in the manner required by the statute.” “A plaintiff must strictly comply with the requirements of the statute authorizing substituted service. We must strictly construe the statute. The plaintiff has the burden of affirmatively showing strict compliance with the statute. . . . There are no presumptions favoring valid issuance, service, and return of citation in the face of a direct attack on a default judgment.”

A Texas Court of Appeals has held that under these circumstances, mail marked “unclaimed” is insufficient proof of service under Texas law. “An unclaimed letter from the Secretary of State’s office can hardly further the aim and objective of the long-arm statute, which is to provide reasonable notice of the suit and an opportunity to be heard.”

Decided March 18, 1998.

Howe & Associates, John J. Maurer, Mark A. Moore, for appellant.

George S. Sampson, for appellee.

The grant of defendant Navare’s motion to set aside is affirmed.

Judgment affirmed.

McMurray, P. J., concurs. Smith, J., concurs in the judgment only.

       OCGA §§ 9-12-130; 9-12-138.

        Gordon v. Gordon, 237 Ga. 171 (1) (227 SE2d 53) (1976).

       OCGA § 9-12-132.

       OCGA § 9-11-60 (d) (1). See also Sanwa Leasing Corp. v. Stan Hunt Constr. Co., 214 Ga. App. 837 (449 SE2d 347) (1994) (affirming grant of motion to vacate or set aside foreign judgment); Gordon, supra (foreign judgment may be collaterally attacked where foreign court lacked jurisdiction of person).

        Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 713 (463 SE2d 23) (1995) (Beasley, C. J., concurring specially).

        Sanwa Leasing Corp., supra (applying burden to plaintiff in case under UEFJL).

        Arnold v. Brundidge Banking Co., 209 Ga. App. 278, 279 (433 SE2d 388) (1993), disapproved on other grounds, Okekpe, supra, 218 Ga. App. at 706. See also P. G L. & C. C. Employees Credit Union v. Kimball, 221 Ga. App. 108 (470 SE2d 501) (1996) (filing under UEFJL is notice that foreign law will be relied upon).

        Schlobohm v. Schapiro, 784 SW2d 355, 356 (Tx. 1990).

        Boreham v. Hartsell, 826 SW2d 193, 195 (Tx. App. Dallas 1992), citing Whitney v. L & L Realty Corp., 500 SW2d 94 (Tx. 1973).

       (Citations omitted.) Boreham, 826 SW2d at 195.

        Barnes v. Frost Nat. Bank, 840 SW2d 747 (Tx. App. San Antonio 1992).

       Id. at 750.


text:
    A97A2244.
    JACKSON v. STATE OF GEORGIA.
    (498 SE2d 159)
   Beasley, Judge.

On December 31, 1996, the State instituted this in rem proceeding under OCGA § 16-13-49 for forfeiture of $1,048 belonging to Lillie Mae Jackson on grounds that the money was seized by a criminal investigator on December 10, 1996, in close proximity to cocaine, included proceeds derived or realized from a violation of the Georgia Controlled Substances Act, and was used or intended for use in a manner to facilitate violation of the Act. See OCGA § 16-13-49 (d) (2), (6).

Jackson was served on January 6, 1997. On February 5, she filed an answer, asserting that the money is not subject to forfeiture under the Code section, and that if it would otherwise be subject to forfeiture, she would qualify as an innocent owner under OCGA § 16-13-49 (e). She alleged that the money consisted of (1) payments to her for babysitting services, and (2) the proceeds of two January 3, 1997 Social Security checks she had cashed, one for $502 payable to her and the other for $585 payable to her son. She further alleged that the money was hidden in her bedroom because she has no bank account, that the drugs were allegedly found in the kitchen, and that she knew of no drugs in the house.

On March 13, the State served Jackson with a motion for judgment on the pleadings. It contended she did not comply with the strict pleading requirements of OCGA § 16-13-49 (o) (3) in that (1) the date of the Social Security checks listed in the answer was January 3,1997, whereas the money was seized on December 10, 1996; (2) no transferor or date of acquisition of the babysitting money was specified; and (3) Jackson did not claim a cognizable interest in the Social Security check payable to her son.

On March 25, Jackson filed an amendment to her answer which sought to (1) correct the date of the Social Security checks to Decernber 3, 1996 (explaining that the wrong date was inadvertently used by her attorney), name the son whose Social Security money she held, (2) provide a transferor and dates of acquisition of the babysitting money, and (3) declare that only she was permitted in her room where the money was found. The court granted the State’s motions to strike Jackson’s amendment to her answer and for judgment on the pleadings.

The two issues are whether Jackson should have been allowed to amend her answer to correct the error regarding the date of the Social Security checks and to supply the missing information concerning the babysitting money, and whether she has standing to contest the forfeiture of the proceeds of a check payable to her son. OCGA § 16-13-49 (o) and case law applying it govern.

1. OCGA § 16-13-49 (o) (3) requires the claimant to file a verified answer within 30 days after service of the summons and complaint and further provides that in “addition to complying with the general rules applicable to an answer in civil actions, the answer must set forth [the information specified in subsections (A) through (G)].” Subsection (D) and (F) respectively require “[t]he date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property,” and “[a]ll essential facts supporting each assertion.”

The next step is in the alternative. “If at the expiration of [the 30-day period] no answer has been filed, the court shall order the disposition of the seized property. . . .” OCGA § 16-13-49 (o) (4). “If an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause. . . .” OCGA § 16-13-49 (o) (5).

In Rojas v. State of Ga., 269 Ga. 121 (498 SE2d 735) (1998), the Supreme Court of Georgia has recently concluded that under OCGA § 9-11-81, the amendment provisions of OCGA § 9-11-15 of the Civil Practice Act, including the relation back provisions of OCGA § 9-11-15 (c), apply to forfeiture proceedings. Thus, “[a]mendments to answers in forfeiture proceedings are permitted, and they relate back to the initial answer, thus meaning that any amendment to an answer under § 16-13-49 must be considered to have been filed within the 30-day limitation of § 16-13-49 (o) (3), and must be considered in determining the legal sufficiency of a property owner’s answer "under § 16-13-49 (o) (3).” Id. at 123-124. To the extent that Jarrett v. State of Ga., 220 Ga. App. 559, 561 (2) (472 SE2d 315) (1996), holds otherwise, it was overruled.

Since Jackson’s amendment to her answer did supply the information required by OCGA § 16-13-49 (o) (3), the court erred in granting the State’s motion to strike the amendment and for judgment on the pleadings.

2. The drug forfeiture statute requires a copy of the complaint and summons to be served on “any person known to be an owner or interest holder and any person who is in possession of the property.” OCGA § 16-13-49 (o) (2). An “interest holder” is defined as a secured party under Article 9 of the UCC or the beneficiary of a perfected security interest. OCGA § 16-13-49 (a) (6). “Owner” is defined as “a person, other than an interest holder, who has an interest in property and is in compliance with any statute requiring its recordation or reflection in public records in order to perfect the interest against a bona fide purchaser for value.” OCGA § 16-13-49 (a) (7). Thus, by its terms, the statute does not require a party to have an ownership or security interest in property in order to have standing to contest its forfeiture.

The claimant in Chester v. State of Ga., 168 Ga. App. 618 (309 SE2d 897) (1983), denied any property interest in cash seized from his residence but argued that standing to contest its forfeiture obtained from a superior right of possession. This argument fell short because “it is clear that to have standing to contest a forfeiture a party must have at least some property interest in the subject matter of the condemnation proceeding. [Cits.]” Id. at 619 (1).

In Crenshaw v. State of Ga., 206 Ga. App. 271, 272 (1) (425 SE2d 660) (1992), the State filed a complaint for forfeiture of money found in the possession of Tucker at the time of his arrest after he sold cocaine to a confidential informant. Crenshaw and others sought to contest the forfeiture, claiming that the money had been loaned to Tucker by them. A directed verdict was authorized, for “a general unsecured creditor does not have a legally cognizable interest sufficient to grant it standing to challenge a forfeiture action against seized currency.” Id. at 272 (1). It was reasoned that “the creditor has no right to exercise dominion or control over the money once lent. [Cits.]” Id.

Jackson did have a possessory interest in the proceeds of her son’s Social Security check. In legal effect, she was a bailee of these funds. In bailments, it is the general rule that a bailee has a special right in bailed property and may maintain an action against a third party who has deprived the bailee of possession. See White v. American Ins. Co., 53 Ga. App. 320 (185 SE 605) (1936); 8 AmJur2d, Bailments, § 263 (1980). Federal courts have held that a possessory interest in property by a bailee confers standing in a forfeiture action. See United States v. $122,043 in U. S. Currency, 792 F2d 1470, 1473 (II) (3) (9th Cir. 1986) and cits.; United States v. $38,000 in U. S. Currency, 816 F2d 1538, 1544 (II) (A) (2), (3) (11th Cir. 1987) and cits. We agree and thus hold that Jackson has standing to contest the forfeiture of the bailed property.

Judgment reversed.

McMurray, P. J, and Smith, J., concur.

Decided March 18, 1998

James W. Smith, for appellant.

Timothy G. Madison, District Attorney, Kevin J. Guidry, Robin R. Riggs, Assistant District Attorneys, for appellee.


text:
    A97A2391.
    WALLER v. THE STATE.
    (498 SE2d 362)
   Beasley, Judge.

Fred Waller, convicted of driving under the influence of alcohol (OCGA § 40-6-391), enumerates as error the denial of his motion for directed verdict for want of proof of venue beyond a reasonable doubt. The offense occurred on June 2, 1995. He contends the State was required to prove the offense occurred in the City of Atlanta, Fulton County, Georgia.

Waller was tried in the City Court of Atlanta, otherwise known as the “Atlanta Traffic Court.” The City Court is referred to in the Georgia Constitution in Art. VI, Sec. X, Par. I (5), as one of the municipal courts continued by the 1983 Constitution. Such, courts “shall have jurisdiction over ordinance violations and such other jurisdiction as provided by law.” Ga. Const, of 1983, Art. VI, Sec. I, Par. I. Those in existence on June 30, 1983, are not subject to the provisions of the Judicial Article of the Constitution, and “[t]he General Assembly shall have the authority to confer ‘by law’ jurisdiction upon municipal courts to try state offenses.” Id.

This city court was in existence prior to June 30, 1983. A constitutional amendment proposed by the General Assembly in 1967 and ratified at the 1968 general election authorized the General Assembly to create city courts in cities having a population over 300,000. Ga. L. 1967, p. 963 (Res. Act No. 81; HR 167-510). The General Assembly exercised that authority and acted to create a system of traffic courts, including this one, that same year. Ga. L. 1967, p. 3360. The law took effect in 1969, following ratification of the constitutional amendment. Ga. L. 1967, p. 3370, § 35. The law provided that “[e]ach of such courts shall have jurisdiction coextensive with the territorial limits of the city in which it is located over . . . [a]ll crimes and offenses under the laws of the State relating to and regulating traffic, not above the grade of misdemeanor and not exclusively cognizable in the superior courts. Provided, however, no defendant shall be tried on a misdemeanor charge in any county except where the alleged offense was committed.” Ga. L. 1967, pp. 3360, 3362, § 3.

The constitutional amendment was continued in force and effect after the adoption of the 1983 Constitution of Georgia, Ga. L. 1986, p. 4820 (Act No. 1233, HB 1624), and City Court jurisdiction at the time of Waller’s offense and trial was the same as it was in 1967.

In 1996 the legislature “re-create[d] a system of state courts of limited jurisdiction for each city of this state having a population of 300,000 or more.” Ga. L. 1996, p. 627 (Act No. 791, HB 1447). As stated in the Act’s first section, this was done pursuant to Art. VI, Sec. I of the Constitution, which provision referred to above empowered the General Assembly to establish municipal courts and confer jurisdiction on them. Expressly instrumental also was the constitutional amendment of 1967, also referred to above, which was specifically continued in force and effect by the aforementioned Act of 1986. The 1996 law continued the courts created by the 1967 Act but reconstituted them under the new law and specifically repealed the 1967 Act. Ga. L. 1996, pp. 627, 639, §§ 29-31.

Under the 1996 law, each of the state-established city courts has jurisdiction “coextensive with the territorial limits of the city in which it is located over . . . [a]ll crimes and offenses under the laws of the state relating to and regulating traffic, and all other crimes and offenses arising out of the same occurrence as such traffic offense, not above the grade of a misdemeanor and not exclusively cognizable in the superior courts; provided, however, no defendant shall be tried on a misdemeanor charge in any county except where the alleged offense was committed.” Ga. L. 1996, p. 628, § 3. Thus the county requirement was retained as the locality for trial.

That is the law currently. The legislature chose to limit venue of a state misdemeanor to the county in which it was committed, even though the City Court’s jurisdiction was city-wide and the city included some territory in DeKalb County.

The legislature would not have been constitutionally prohibited from making that jurisdiction coextensive with the territorial limits of the city; the constitutional venue requirements contained in Art. VI, Sec. II (for our purposes specifically Par. VI thereof), do not apply to municipal courts. That is because Art. VI, Sec. I, Par. I of the Judicial Article excepts municipal courts such as the City Court of Atlanta from all but Sec. X and Sec. I, Par. I of this Article. Nor would the legislature be prohibited by statutory law, for OCGA § 17-2-2 (a) provides: “Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.”

The Sixth Amendment of the United States Constitution guarantees to a defendant in a criminal prosecution the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” There is no correlative provision in Georgia’s Bill of Rights, but for venue purposes for those courts which are subject to Art. VI, Sec. II of the Georgia Constitution, counties are the “districts” ascertained by law. Since the City Court of Atlanta is not subject to the Sec. II venue designations, the General Assembly could designate the entire territory of the City of Atlanta as constituting the “district” for federal Bill of Rights purposes. But it did not, and the venue provided in the acts establishing the city courts prevails.

The question, then, is whether the city proved that the crime of driving under the influence of intoxicating liquor occurred in the City of Atlanta in the County of Fulton. Proof that it occurred in the City would fall short.

Arresting Officer Padgett, who was employed by the City of Atlanta Police Department, testified that the incident leading to the arrest took place at 2095 Stewart Avenue, in the northern half of Zone 3. He saw Waller drive at that very location and arrested him within 50 feet of where he first came upon him slumped over the wheel with the engine running and the right wheel of his car over the parking lot curb.

Padgett was “working Zone 3” at the time, having been “assigned to the A section, which is the north half of the zone.” It may reasonably be inferred that meant Zone 3 of the City of Atlanta because that was his beat as a City of Atlanta patrol officer. “Zones” are inferentially areas into which the city is divided for policing purposes. Padgett also testified this incident was 100 feet from a mini-precinct station of that Zone 3, in the 2000 block of Stewart Avenue, which he told Waller. It would be extraordinary to find a precinct station outside the jurisdiction of the City of Atlanta Police Department.

There is thus sufficient evidence to prove the crime was committed in the City of Atlanta. Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998)\ Hunter v. State, 191 Ga. App. 219 (381 SE2d 525) (1989).

As to the location being the County of Fulton, although the officer did not state directly that it was in Fulton County, the Uniform Traffic Citation contained the officer’s sworn statement that the offense occurred “In the City of Atlanta, County of Fulton.” The word “DeKalb” is lined through. But this document was not in evidence, the jury did not have it in the jury room even as the charging instrument, and had it been admitted, it is questionable whether it would be proper evidence because normally the charging instrument is not evidence. See Crowe v. State, 265 Ga. 582, 591 (16) (458 SE2d 799) (1995) (indictment not evidence); Chambers v. State, 159 Ga. App. 669, 670 (2) (284 SE2d 682) (1981) (same); Perkins v. State, 151 Ga. App. 199, 206 (8) (259 SE2d 193) (1979) (accusation not evidence), overruled on other grounds, Chance v. State, 154 Ga. App. 543 (268 SE2d 737) (1980). The four-to-three decision in Graves v. State, 227 Ga. App. 628 (490 SE2d 111) (1997), distinguishes the UTC as being under oath, a court record, not hearsay, admissible as evidence in a bench trial and sufficient to show the county where the alleged offense was committed for purposes of proving venue. Even if the full bench of this Court were to agree, the UTC certainly did not suffice in this case, for the reasons given above.

Although we have taken judicial notice that a particular city is located entirely in the county where the defendant was tried, the City of Atlanta does not lie entirely in Fulton County. And we cannot take judicial notice that the address on Stewart Avenue, or all of Stewart Avenue, is in Fulton County.

“While it is true that where venue is not contested slight proof will suffice (Loftin v. State, 230 Ga. 92 (195 SE2d 402) [(1973)]), it must nevertheless be established beyond a reasonable doubt. Parks v. State, 212 Ga. 433, 435 (93 SE2d 663) (1956).” Carter v. State, 146 Ga. App. 681 (247 SE2d 191) (1978); Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988).

The City did not provide even slight proof, although such a task would seem to be a simple matter, paying attention to it avoids the whole agonizing issue which takes the conviction of a crime to the edge of the precipice and risks a fall into the abyss of illegality. “Where venue is not established by the State, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven.”

The conviction must be reversed, as Waller did not waive the right to be tried in the county where the offense was alleged to have been committed. Although Waller was at the time a resident of North Carolina and may not have had a particular interest in being tried by citizens of Fulton County rather than citizens of DeKalb County, that is of no consequence because, with only limited exceptions not applicable here, all defendants have a right to be tried where the alleged offense occurred.

Decided March 18, 1998.

Kevin G. Ryan, for appellant.

June D. Green, Solicitor, for appellee.

Judgment reversed.

McMurray, P. J, and Smith, J., concur in the judgment only.

        Harmon, v. Harmon, 209 Ga. 474,475 (2) (74 SE2d 75) (1953): “We judicially know that the City of Atlanta is in the counties of Fulton and DeKalb.”

       See Widner v. State, 203 Ga. App. 823, 824 (3) (418 SE2d 105) (1992), and the cases cited therein.

        Harmon, supra (judicial cognizance of the county location of Atlanta street not taken); Smith v. State, 138 Ga. App. 692 (1) (227 SE2d 468) (1976) (same).

       This principle has troubled the .whole court before and was addressed a year ago in Hall v. State, 226 Ga. App. 298 (485 SE2d 800) (1997).

       (Citation and punctuation omitted.) Thayer v. State, 189 Ga. App. 321, 322 (1) (376 SE2d 199) (1988).

       Compare Clark v. State 213 Ga. App. 313, 315 (3) (444 SE2d 806) (1994) (nonprecedential), where two judges were of the opinion that the evidence of county was sufficient and the third judge disagreed but felt constrained to follow precedent.


author: Pope, Presiding Judge.

text:
    A97A2554.
    UNITED SERVICES AUTOMOBILE ASSOCIATION v. MILLIKAN et al.
    (498 SE2d 171)
   Pope, Presiding Judge.

In this appeal, United States Automobile Association (“USAA”) claims the trial court erred by ruling on a cross-claim that USAA had voluntarily dismissed pursuant to OCGA § 9-11-41 (a). We agree and vacate that portion of the order which contains the improper ruling.

The complex procedural maneuvers which have occurred in this case require some explanation. Robin Millikan and her husband, Joseph Millikan, were injured in an automobile accident. Pursuant to the terms of their automobile liability policy with USAA, the Millikans received payment for medical expenses they incurred as a result of the accident. The Millikans sued the driver of the other car involved in the accident for damages resulting from the accident and obtained a judgment in their favor.

In an effort to resolve USAA’s potential claim for reimbursement of the medical benefits, the Millikans moved to add USAA as an involuntary party plaintiff to the personal injury action pursuant to OCGA § 9-11-19. That motion was granted, but USAA neglected to file its claim within the time allotted by the trial court. When the Millikans moved to dismiss USAA’s unfiled claims with prejudice, thereby precluding • its claims for reimbursement, the insurer explained to the court that its failure to file a claim resulted from mistake. The trial court then dismissed USAA’s claims without prejudice. With the Millikans’ consent, USAA then moved to intervene in the personal injury action pursuant to OCGA § 9-11-24. The trial court granted the motion, and USAA filed a cross-claim against the Millikans seeking reimbursement from the proceeds of the judgment for the medical payments it made on behalf of the Millikans.

The defendant driver satisfied the judgment and paid the proceeds into the registry of the court. The trial court disbursed the majority of the judgment proceeds but retained in the registry the sums contested by USAA. The parties subsequently entered into, a stipulation agreement which included a stipulation that the Millikans had not been completely compensated for their losses resulting from the accident. Thereafter, the Millikans filed a motion seeking dismissal of USAA’s cross-claim on the basis that under the “complete compensation rule” set forth in Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646 (482 SE2d 325) (1997), USAA had no right to reimbursement or subrogation under the policy. Before the motion was considered by the trial court, USAA voluntarily dismissed its cross-claim without prejudice pursuant to OCGA § 9-11-41 (a). After USAA dismissed its cross-claim against the Millikans, the trial court entered an order directing the clerk to disburse to the Millikans the sums being held in the court registry on their behalf which were contested under the cross-claim.

On appeal from the disbursement order, USAA does not claim the trial court erred by disbursing the judgment funds to the Millikans. Rather, USAA claims that in a portion of the order the trial court erroneously ruled on the merits of its dismissed cross-claim.

The trial court’s order not only disbursed sums from the court registry to the Millikans, but also recited the fact that USAA had stipulated that none of the plaintiffs in the case had been completely compensated for their losses and ruled based on Duncan, supra, that “no right of reimbursement to United Services Automobile Association for the medical expense payments made by them to each of the Plaintiffs arose or became applicable because of the failure of the Plaintiffs to be fully compensated for their losses by the judgment entered in this case.” Although reciting the USAA stipulation was not error, the trial court erred to the extent that the above quoted portion of its order attempted to rule on the merits of USAA’s cross-claim after the cross-claim had been dismissed under OCGA § 9-11-41 (a).

We must vacate that portion of the lower court’s order addressing the merits of USAA’s dismissed cross-claim. Pursuant to OCGA § 9-11-41 (a) and (e), USAA properly informed the court that it did not wish to pursue the cross-claim in the present action. Its voluntary dismissal deprived the trial court of jurisdiction to decide the merits of the claim, so that portion of the order was improper and must be vacated. See Smith v. Mem. Med. Center, 208 Ga. App. 26, 28 (1) (430 SE2d 57) (1993).

This result is proper whether USAA is classified as an intervenor or as an involuntary plaintiff. OCGA § 9-11-19 (a) provides a method by which one party may require an indispensable party to join an existing action and either present its claims or waive them through the application of res judicata. See Stenger v. Grimes, 260 Ga. 838, 839 (1) (400 SE2d 318) (1991) (providing method to require parties to assert claims arising out of same accident); Citizens Exchange Bank &c. v. Kirkland, 256 Ga. 71 (344 SE2d 409) (1986) (providing that the failure of a party to assert a cross-claim in one action may estop the party from later bringing that claim). But nothing in the statute requires a party to assert a claim and submit that claim to the trial court for a ruling on the merits. Just as a party is not required to file an answer to a complaint, or assert a particular defense, so may a party decline to have the court address the merits of its claim. Voluntary dismissal of a claim under OCGA § 9-11-41 is a method by which the party may “escape from an ‘untenable position’ ” whether or not its failure to assert the claim will later have res judicata effect. See Lakes v. Marriott Corp., 264 Ga. 475, 476 (448 SE2d 203) (1994). The issue of whether USAA will, at some later date, be authorized to reassert this dismissed claim is not before the Court, and any opinion we offered on that question would be premature. Neither are we called on to determine whether, despite its dismissal of the cross-claim, USAA remains a party to the case below. In the matter before us, we are presented with only one question. In answer to that question, USAA was entitled to voluntarily dismiss its cross-claim, and once it entered that dismissal the trial court had no authority to render a decision on the merits of the cross-claim.

Decided March 18, 1998.

FitzGerald & Schultz, John K. FitzGerald, Andrew H. Schultz, for appellant.

Dennis, Corry & Porter, Robert E. Corry, Jr., Troy R. Millikan, for appellees.

Judgment affirmed in part and vacated in part.

Blackburn, J., concurs. Andrews, C. J., concurs in judgment only.


author: Blackburn, Judge.

text:
    A98A0593.
    REVIERE v. THE STATE.
    (498 SE2d 332)
   Blackburn, Judge.

Ralph Reviere appeals from his convictions of five counts of selling cocaine, asserting numerous errors. For the reasons discussed below, we affirm.

1. Reviere contends the trial court erred in allowing him to discharge his appointed counsel and proceed pro se, arguing that he did not validly waive the right to counsel. “In determining whether or not an accused has adequately waived his right to counsel and elected to exercise his constitutional right to represent himself, the courts will apply the standard set forth in Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1937). ... A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Citation and punctuation omitted.) Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981).

After the jury was struck but before opening statements, Reviere’s appointed counsel informed the court that Reviere wanted him to withdraw. Reviere confirmed that he wished to discharge counsel and represent himself. The judge asked Reviere if he understood that the benefit of counsel was a very valuable right, and Reviere responded that he did. The court asked if Reviere understood that there would be times during trial that an attorney skilled in the law would be beneficial to him, and Reviere replied that he did. The judge informed Reviere on several occasions that he had a constitutional right to counsel, and Reviere confirmed that he wished to represent himself. The judge then allowed Reviere’s appointed counsel to withdraw.

On appeal, following conviction, Reviere contends that his waiver of the right to counsel was invalid. He relies on cases such as Kirkland v. State, 202 Ga. App. 356 (414 SE2d 502) (1991), where we have held that “[i]n order to establish a valid waiver, a trial judge must investigate as long and as thoroughly as the circumstances of the case before him demand. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.” (Punctuation omitted.) Id. at 357-358. Reviere contends that the trial court’s dialogue did not meet this standard, and that the waiver was therefore invalid.

This contention is without merit. There is no magic language that must be used by a trial judge in determining that a defendant has made a valid waiver of his right to counsel. Rather, such determination must depend upon the particular facts and circumstances of each case. Clarke, supra; Rutledge v. State, 224 Ga. App. 666 (482 SE2d 403) (1997). The judge’s questions to Reviere were designed to determine whether Reviere understood the benefits of experienced counsel and the dangers of proceeding pro se. Reviere’s responses were clear and unambiguous and indicated that he understood these risks and benefits. Moreover, Reviere admitted at the motion for new trial hearing that he had discussed his desire to represent himself with his appointed attorney before the attorney requested to withdraw. The attorney testified that he advised Reviere that it was not in his best interest to represent himself, but that Reviere insisted on doing so.

Our laws governing criminal procedure are designed to ensure that defendants receive a fair trial. Defendants are free to waive the protections provided by such laws, assuming all the risks attendant thereto. A defendant is not free, however, to play one right against another with the hope of creating error. Neither may a defendant who has knowingly waived counsel then complain of a lack of counsel when he determines that the judge’s warnings were valid. Under such circumstances, the defendant’s problems are of his own making, and he is bound by his poor choices.

The charges against Reviere were straightforward, alleging that he sold cocaine on five separate occasions. Although the judge did not specifically advise Reviere of the possible sentences he faced, Reviere admitted at the hearing on his motion for new trial that he had understood he was facing a life sentence if convicted. He also admitted that he made the choice to represent himself after discussing the matter with his attorney. Reviere’s extensive examination and cross-examination of witnesses during trial showed that he understood the nature of the charges against him. His questioning further reflected that his primary defense strategies were to claim misidentification, to attack the State’s witnesses’ credibility, and to bring out facts showing that he was not personally involved in some of the sales. Reviere’s appellate counsel has not identified any other defenses of which Reviere was unaware when he elected to proceed pro se.

“Thus, the trial transcript clearly indicates that defendant was not denied the right to counsel by the trial court, but instead knowingly, understanding^ and voluntarily elected to represent himself. . . . Under the circumstances of this particular case, we find no error requiring a reversal of the conviction.” (Punctuation omitted.) Rutledge, supra at 670 (3).

Moreover, even had the trial court erred in allowing Reviere to represent himself, any such error was harmless beyond a reasonable doubt. The State’s evidence and Reviere’s defenses were straightforward, and Reviere conducted a vigorous cross-examination of the State’s witnesses. The evidence against Reviere was overwhelming, consisting primarily of eyewitness testimony from several different witnesses that Reviere had personally sold or facilitated the sale of cocaine to them. Although appellate counsel identifies certain instances in which Reviere’s questioning was less than artful, counsel has not shown how these few instances affected the jury’s verdict. Viewing the evidence as a whole, and in light of the overwhelming evidence of Reviere’s guilt, “it is unlikely that defendant’s convictions were attributable to his decision to represent himself.” (Punctuation omitted.) Rutledge, supra at 671.

2. Reviere also contends that the trial court erred in failing to require his discharged counsel to remain in the courtroom to advise Reviere during the course of the trial. This contention is without merit. Although trial courts often require appointed counsel to remain in the courtroom as standby counsel after a defendant has elected to proceed pro se, there is no requirement that they do so. A criminal defendant has the right to be represented by counsel, and has the right to represent himself, but does not have the right to represent himself and also be represented by an attorney. Maddox v. State, 218 Ga. App. 320, 321 (1) (461 SE2d 286) (1995). Thus, a defendant who has invoked his constitutional right to represent himself cannot assert error in the trial court’s failure to require his discharged attorney to remain, in effect, as the defendant’s co-counsel.

3. In two enumerations, Reviere contends that the trial court erred in considering a 1989 conviction for sale of cocaine in aggravation of his sentence. First, he claims that the State failed to provide notice of the conviction prior to trial. However, Reviere failed to object or otherwise raise this issue when the State introduced the conviction in the sentencing phase and thus waived the right to assert this issue on appeal. See Williams v. State, 165 Ga. App. 553, 554 (3) (301 SE2d 908) (1983); Moss v. State, 159 Ga. App. 317, 319 (283 SE2d 275) (1981). Moreover, a certificate of service contained in the record indicates that the State in fact served Reviere’s attorney with the conviction prior to trial. Although Reviere points out that this certificate was not filed with the court until the day of trial, after he had dismissed his attorney, the certificate reflects that service was made several days earlier while Reviere was still represented by counsel. Reviere’s attorney testified at the motion for new trial hearing that he recalled receiving notice from the State. Accordingly, this enumeration is without merit.

Reviere also contends that the 1989 conviction was not final because he filed a motion for new trial in such case that was never ruled upon. However, Reviere never raised this issue before the trial court, either at the sentencing hearing or in his motion for new trial. Moreover, there is nothing in the appellate record to support his claim that the 1989 conviction was not final. Therefore, this enumeration is without merit.

4. Reviere contends that the court erred in sentencing him to five consecutive life sentences. Although he admits that the sentences were within the permissible limits, he claims the trial court erred in failing to exercise its discretion to impose nonconsecutive sentences. “A sentence is not unconstitutionally cruel and unusual if it is within the statutory limit. This court is without authority to review sentences within the statutory range.” (Citation and punctuation omitted.) Trammell v. State, 196 Ga. App. 540, 542 (3) (396 SE2d 286) (1990). “The sentence in this case was within the statutory limits, and any complaints regarding the sentence should have been addressed to the appropriate sentence review panel.” (Citation and punctuation omitted.) Williams v. State, 208 Ga. App. 716 (1) (431 SE2d 469) (1993).

5. Officer William Gregory testified that he identified Reviere from a photographic lineup shown to him by another officer. On cross-examination, Reviere asked Gregory if the photographs were “[pictures that they take at the jailhouse, or pictures that were took where I was out on the street, or somewhere? What type of pictures you talking about?” Gregory responded that he believed the picture of Reviere had been taken when he was arrested for a previous cocaine , sale. Although Reviere did not object to this testimony, he contends on appeal that the trial court erred by failing sua sponte to intervene to prevent the officer from placing Reviere’s character into evidence. This contention is without merit. “[Reviere] is not held to a different or more lenient standard in this regard merely because he elected to proceed pro se. One who knowingly elects to represent himself assumes full responsibility for complying with the substantive and procedural requirements of the law.” Cammon v. State, 227 Ga. App. 774, 775 (2) (490 SE2d 529) (1997). By inviting the witness’ response and failing to object or seek corrective action, Reviere waived this issue for purposes of appeal.

6. In his final enumeration, Reviere contends that there was insufficient evidence to support his convictions on two of the five counts. “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Punctuation omitted.) Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Reviere contends the evidence was insufficient to support his conviction on Count 1, which related to a sale of cocaine on February 4, 1992. Undercover Officer Dennis Piper testified that, on January 22, 1992, he had purchased a quantity of cocaine from Reviere. On February 4, he again met with Reviere and asked if he could obtain some more crack cocaine. Reviere stated that, if Piper gave him $5, he would take Piper to a place where he could purchase the cocaine. Reviere then got into Piper’s car and directed him to another street. Reviere got out of the car and spoke to another man, who came over and sold a quantity of cocaine to Piper.

Decided March 12, 1998

Reconsideration denied March 19, 1998

Lindsey & Jacobs, Tamara Jacobs, for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Reviere also contests the sufficiency of the evidence with respect to Count 4, which related to a cocaine sale on January 9, 1992. Undercover Officer David Hill testified that, on that date, he asked Reviere if he could buy $20 worth of crack cocaine. Reviere stated that he did not have the cocaine, but that another individual down the street had it. Reviere told Hill and his companion to wait in their car “because he didn’t know if the other subject would sell to two white boys.” Reviere then walked over to where two other individuals were standing. A few seconds later, one of these individuals, Walter Beckham, waved to Hill to come down to where he and Reviere were standing. Hill drove down toward them, and Beckham sold Hill $20 worth of cocaine.

Hill also testified regarding another incident on January 15, 1992, in the same area. He approached an individual named Ross Ausbrooks and asked to buy $20 worth of cocaine. Ausbrooks told Hill to drive around the block. After Hill circled the block, Reviere approached his car and sold him $20 worth of cocaine.

Although Reviere did not personally sell the cocaine to the undercover officers on January 9 and February 4, the evidence was clearly sufficient to enable a rational trier of fact to find that he was a party to the crime in both instances. While mere presence at the scene of a crime is not sufficient to authorize a conviction, Reviere’s conduct went beyond mere presence and authorized the jury to find that he actively facilitated the sales. See James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556) (1997). In addition, the jury was entitled to consider the other transactions in which Reviere personally sold the cocaine as evidence of his intent. See Woods v. State, 224 Ga. App. 52, 55 (4) (479 SE2d 414) (1996). Accordingly, this enumeration is without merit.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A98A0814.
    POWER v. THE STATE.
    (499 SE2d 356)
   Eldridge, Judge.

On November 12, 1995, at approximately 2:00 a.m. in Walton County, State Patrol Officer Clifford Miller observed on Highway 138 near H. D. Atha Road a vehicle parked with its lights on and a man standing beside the vehicle urinating. The man jumped back in the vehicle, turned off the headlights, and got back on the highway before the officer could turn around. The vehicle turned left about a quarter of a mile from where it had been stopped. The vehicle then turned into a private driveway, stopped, and the man exited from the driver’s side.

The driver was identified as Stephen Wes Power, defendant-appellant. Defendant admitted that he pulled into the driveway in an attempt to elude the trooper. The defendant had the odor of alcohol, and the officer performed field sobriety tests after defendant consented, which evidenced impaired motor skills from alcohol. The horizontal gaze nystagmus test indicated intoxication. The other tests showed similar indications of intoxication. The trooper then administered an alco-sensor breath test, which indicated positive for the consumption of alcohol. The defendant was arrested, placed in the patrol car, and read his implied consent warnings from the Department of Public Safety card dated April 7, 1995. The breath test equipment at the county jail was inoperable so the trooper took the defendant to the hospital in Conyers for a blood test. At 3:05 a.m., Nurse Jo Yarbrough drew the blood sample at the hospital. The defendant requested a breath test but no machine was available except in Loganville, which was approximately 12 miles from Monroe. They went and had a breath test performed by the trooper. The blood sample was sent to the State Crime Lab, and the results were .13 grams percent.

The defendant waived a jury trial and was tried and convicted on April 5, 1996, in the Walton County Probate Court for driving under the influence under both OCGA § 40-6-391 (a) (1) (less safe) and 40-6-391 (a) (4) (per se and for driving without lights), based upon Uniform Traffic Citations. At trial the trooper testified that defendant was visibly impaired and under the influence of alcohol so that he was less safe to drive. On April 5, 1996, defendant filed his notice of appeal to the Superior Court of Walton County under OCGA § 40-13-28. On October 6, 1997, on appeal to the Superior Court of Walton County, the court affirmed the trial court. Defendant petitioned for discretionary appeal on October 31, 1997, which was granted. The notice of appeal was filed on December 5, 1997.

Walton v. State, 261 Ga. 392 (405 SE2d 29) (1991) held that where a jury trial is waived in the probate court as to a traffic offense, either in writing or by failure to request a jury, appeal to the superior court under OCGA § 40-13-28 is not de novo but is on the appellate record. In Phillips v. State, 261 Ga. 190 (402 SE2d 737) (1991), the Supreme Court held that an appeal from the superior court appellate review of an appeal from the probate court on a traffic case under OCGA § 40-13-28 comes on direct appeal to the Court of Appeals and not as a discretionary appeal under OCGA § 5-6-35, because the plain language of the statute excludes discretionary appeals from the probate court. OCGA § 5-6-35 (a) (1); Walton v. State, supra at 393, n. 3; see generally Bird v. Bishop, 207 Ga. App. 11 (427 SE2d 301) (1992); Strohecker v. Gwinnett County Police Dept., 182 Ga. App. 853 (357 SE2d 305) (1987); Copeland v. White, 178 Ga. App. 644 (344 SE2d 436) (1986).

In Brown v. City of Marietta, 214 Ga. App. 840, 841-842 (1) (449 SE2d 540) (1994), we held that an appeal from the superior court review under OCGA § 40-13-28 of a traffic case in municipal court was discretionary under OCGA § 5-6-35 (a). Therefore, any appeal from a superior court review under OCGA § 40-13-28 of any lower court, except the probate court, shall be under OCGA § 5-6-35 (a); however, an appeal from the superior court review under OCGA § 40-13-28 of a traffic case from the probate court shall be by direct appeal under OCGA § 5-6-34 (a). See OCGA § 5-6-34 (a) (1); Phillips v. State, supra at 191.

1. Defendant’s first enumeration of error is that the trial court erred in denying the motion to quash the accusation purporting to charge defendant with driving under the influence of alcohol.

The Uniform Traffic Citation charged the defendant with “D. U. I. in violation of Code Section 40-6-391.” Defendant contends that such UTC is vague and ambiguous so that he does not know what he must defend against. Kevinezz v. State, 265 Ga. 78, 81 (454 SE2d 441) (1995). “Under § 40-6-391 (a) (2), impaired driving ability is an element of the crime that the state must prove to obtain a conviction. See Cargile v. State, 244 Ga. 871, 873 (1) (262 SE2d 87) (1979). . . . Turning to the language of the indictment in this case, we conclude that the phrase ‘driving under the influence of [alcohol]’ describes a specific method by which the crime of driving under the influence may be proved. See Hogan v. State, 178 Ga. App. 534, 536 (343 SE2d 770) (1986). It has been held the phrase ‘driving under the influence of alcohol’ has a ‘universally recognized and understood meaning’ so that reasonable persons could not differ as to its interpretation. Cargile, 244 Ga. at 873. That meaning is that a person is under the influence of alcohol ‘ “when it appears that it is less safe for such person to operate a motor vehicle.” ’ Cargile, 244 Ga. at 873, 874 (quoting Cook v. State, 220 Ga. 463, 465 (2) (139 SE2d 383) (1964)). . . .The foregoing universally understood meaning is embodied in the language of § 40-6-391 (a), which couples the term ‘under the influence’ with the concept of being a less safe driver, see § 40-6-391 (a) (1), (2), and (3). Thus, in Hogan the Court of Appeals properly held that the phrase ‘driving under the influence,’ with respect to both alcohol and drugs, and the phrase ‘to the extent it is less safe for the person to drive,’ see § 40-6-391 (a) (1), (2), and (3), ‘are not two separate elements . . . (but) are equivalent concepts describing (the same) physical condition.’ Hogan, 178 Ga. App. at 536. Accordingly, an indictment or accusation charging a defendant with driving under the influence of alcohol or drugs, even if it does not specify ‘to the extent it was less safe for (the defendant) to drive,’ is an indictment that charges the defendant with violating § 40-6-391 (a) in one of the three ways specified by subsections (a) (1), (2), and (3). Hogan, 178 Ga. App. at 535-537 (indictment charging defendant with ‘driving under the influence of alcohol’ charged defendant with violating § 40-6-391 (a) (1)). Conversely, such an indictment would not put a defendant on notice that he or she could be convicted under § 40-6-391 (a) (4) or (5), which do not contain the phrase ‘under the influence’ and do not require the state to prove impaired driving ability, Hogan, 178 Ga. App. at 536; Lester [v. State], 253 Ga. [235, 237-238 (4) (320 SE2d 142) (1984)].” Id. at 79, 81-82. Therefore, the UTC was adequate for prosecution under the less safe standard of OCGA § 40-6-391 (a) (1), but the UTC was inadequate to prosecute for OCGA § 40-6-391 (a) (4). Failure to quash the UTC as to OCGA § 40-6-391 (a) (4) was error but harmless in this non-jury trial where the evidence was overwhelming that it was less safe for the defendant to drive. Further, on appeal to the superior court, the conviction under OCGA § 40-6-391 (a) (4) was reversed.

“ ‘It is presumed that in his capacity as trier of fact the trial judge considered only legal evidence,’ Simmons v. State, 249 Ga. 860, 861 (2) (295 SE2d 84) (1982), ‘unless it appears from the judgment that (the court) considered testimony which should have been excluded.’ Morris v. State, 160 Ga. App. 50 (1) (285 SE2d 782) (1981).” Daniels v. State, 211 Ga. App. 23, 25 (1) (438 SE2d 99) (1993). Here the probate judge did in fact consider an improper basis for conviction as indicated by the judgment. However, “[t]he standard we adopt is what is known as the ‘highly probable test,’ i.e., that it is ‘highly probable that the error did not contribute to the judgment.’ ‘The highly probable test avoids the evils of inadequate or excessive stringency by making affirmance conditional on high probability that error did not affect the judgment. The test compels a judge to go beyond a first glance for affirmance or a fleeting glimpse for reversal. It compels him to exercise his mind in the exercise of his discretion, to go beyond the appearances of the result to an examination of what causal links there may be between error and the judgment. It keeps judicial discretion within the ample bounds of reason.’ ” (Citations omitted; emphasis in original.) Johnson v. State, 238 Ga. 59, 60-61 (230 SE2d 869) (1976); accord Willingham v. State, 268 Ga. 64, 65 (4) (485 SE2d 735) (1997); Vincent v. State, 264 Ga. 234, 235 (442 SE2d 748) (1994). “However, even if we assume allowing [these grounds for conviction were] error, in Anew of the overwhelming admissible evidence of [defendant’s] guilt such error was harmless and does not require reversal.” Parker v. State, 226 Ga. App. 462, 464 (5) (486 SE2d 687) (1997); see generally Howard v. State, 215 Ga. App. 342, 344 (2) (450 SE2d 824) (1994).

Decided March 11, 1998

Reconsideration denied March 19, 1998

Virgil L. Brown & Associates, Bentley C. Adams III, Eric D. Hearn, for appellant.

Alan A. Cook, District Attorney, Jay M. Jackson, Assistant District Attorney, for appellee.

2. The defendant’s second enumeration of error is that the trial court erred when it admitted over objection the results of the blood test without laying a proper foundation.

In light of Division 1 and the reversal of the conviction under OCGA § 40-6-391 (a) (4), such issues are moot. To the extent that such evidence was erroneously before the trial judge, such error was harmless in the face of the overwhelming evidence as to defendant’s guilt under OCGA § 40-6-391 (a) (1). Duke v. State, 268 Ga. 425, 427 (2) (489 SE2d 811) (1997); Fetty v. State, 268 Ga. 365 (489 SE2d 813) (1997); Parker v. State, supra.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Andrews, Chief Judge. BIRDSONG, Presiding Judge, Eldridge, Judge,

text:
    A97A1537.
    JONES v. INGLES MARKETS, INC.
    (498 SE2d 365)
   Andrews, Chief Judge.

In Jones v. Ingles Markets, 228 Ga. App. 496 (492 SE2d 257) (1997), we affirmed the grant of summary judgment in favor of Ingles on Penny Jones’ claim that Ingles’ negligent failure to keep its food store premises safe for invitees was the proximate cause of an injury she suffered when she stepped in a puddle of liquid on the floor of the store and slipped. The Supreme Court granted Jones’ petition for a writ of certiorari, vacated our judgment, and remanded the case to this Court for reconsideration of the merits of Jones’ appeal in light of the Supreme Court’s holding in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997).

Our decision in Ingles Markets was limited to consideration of the second prong of the test set forth in Alterman Foods v. Ligón, 246 Ga. 620, 623 (272 SE2d 327) (1980), where the issue is whether or not the evidence showed that Jones had actual knowledge of the puddle or that in the exercise of ordinary care she should have known about the puddle and avoided it prior to stepping in it. Ingles Markets, supra at 497. Because it is not an issue raised in the appeal, we do not consider whether or not under the first prong of Alterman Foods, Ingles had superior actual or constructive knowledge of the puddle. Accordingly, our reconsideration on remand is limited to consideration of the effect of Robinson on the second prong of Alterman Foods as applied to the facts of this case.

The following facts, as set forth in Ingles Markets, are relevant to the decision in this case: “Jones deposed that as she was leaving the Ingles store after checking out, her left foot slipped on something, but she was able to catch herself before she fell. She alleged that her back and legs were injured as a result of the slip. She testified that after she slipped, she looked down at the floor and could see that she had stepped in a puddle of clear liquid which looked like about a cup and a half of water on the floor. Jones testified that she did not see the liquid prior to stepping in it because, as she was exiting the store prior to the slip, she was looking straight ahead rather than in the direction of the floor. She admitted that nothing prevented her from seeing the liquid on the floor prior to stepping in it and that it would have been visible to her had she looked for it.” Id. at 497. There is no evidence that anything in the control of Ingles was in any way responsible for Jones’ failure to see and avoid the puddle. Id. at 498.

Since there is no evidence that Jones had actual knowledge of the puddle prior to stepping in it, the issue under the second Alterman Foods prong is whether, in the exercise of ordinary care for her own safety, Jones should have known about the puddle and avoided it. In Ingles Markets we quoted the Alterman Foods requirements that under the second prong of the test set forth therein, “ £(t)he customer must exercise ordinary care for (her) own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to (her) or in the exercise of ordinary care (she) should have learned of it. (She) must make use of all (her) senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to (her).’ (Citations and punctuation omitted.) Alterman Foods, supra at 623.” Ingles Markets, supra at 497-498. Applying these requirements, we found that “the evidence show[ed] that the puddle was visible and, had Jones looked at the floor where, she was walking prior to the slip, she could have seen and avoided it.” Id. at 498. We concluded that Jones’ failure to look where she was walking and see the puddle established as a matter of law that the proximate cause of her slip in the puddle was her failure to exercise ordinary care for her own safety. Id. Accordingly, in Ingles Markets we affirmed the trial court’s grant of summary judgment in favor of Ingles.

In Robinson, the Supreme Court granted a writ of certiorari “to examine ‘the proper standard for determining whether the plaintiff in a “slip and fall” premises liability case has exercised ordinary care sufficient to prevail against a motion for summary judgment,’ ” id. at 735, and “to examine the appellate decisions which have as their crux a determination as a matter of law that an invitee failed to exercise ordinary care for personal safety.” Id. at 739. In doing so, Robinson examined slip and fall cases which, like the claim in Robinson, were based on claims by invitees that they were injured by a foreign substance on the floor of the premises to which they were invited. Robinson identified Alterman Foods as the landmark decision defining the law governing these slip and fall cases. Robinson, supra at 736.

In its discussion of these cases, Robinson left intact the first prong of the Alterman Foods test concerning the defendant proprietor’s knowledge of the hazard and focused instead on the second Alterman Foods prong dealing with the plaintiff’s knowledge of the hazard. Robinson, supra. Robinson reaffirmed that under the second prong of Alterman Foods, a plaintiff invitee must prove that the invitee “ ‘was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.’ Id. at 623!” Robinson, supra at 736, 748-749. Under Robinson, however, the defendant now has the initial burden under the second prong of producing evidence in support of a motion for summary judgment that the plaintiff’s negligence was the proximate cause of the injuries at issue. Id. at 747-749. This burden may be carried by the defendant by producing evidence that the plaintiff knew about the hazard or that in the exercise of ordinary care the plaintiff should have known about the hazard. Id. Only after the defendant has produced evidence of the plaintiff’s negligence does the plaintiff have the burden of producing evidence which disproves such negligence in opposition to summary judgment. Id.

Robinson also reaffirmed that under the second prong of Alterman Foods, an invitee has the following duties: “An invitee is charged with exercising ordinary care for personal safety and using ordinary care to avoid the effect of the owner/occupier’s negligence after that negligence becomes apparent to the invitee or in the exercise of ordinary care the invitee should have learned of it. In the exercise of ordinary care, the invitee must use all senses to discover and avoid hurtful things. Alterman Foods v. Ligón, supra, 246 Ga. at 623.” Robinson, supra at 741. In considering whether or not an invitee has exercised such ordinary care, Robinson further stated that: “The established standard is whether, taking everything into account, the act is one which the common sense of mankind pronounces wants of such prudence as the ordinarily careful person would use in a like situation. The invitee is not bound to avoid hazards not usually present on the premises and which the invitee, exercising ordinary care, did not observe, and the invitee is not required, in all circumstances, to look continuously at the floor, without intermission, for defects in the floor.” (Citations and punctuation omitted.) Id. at 741. Robinson further held “that an invitee presents some evidence of the exercise of reasonable care for personal safety when the invitee explains that something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality caused him not to look at the site of the hazard.” Id. at 748.

Applying these standards, Robinson confirmed that a court may conclude as a matter of law that an invitee failed to exercise ordinary care where the evidence establishing that fact is plain, palpable and undisputable. Id. at 739-740. But Robinson emphasized that the question of ordinary care is generally an issue for the trier of fact and that where reasonable minds can differ as to the conclusion to be reached, summary judgment is not appropriate. Id.

In considering the facts in the case before it, Robinson reversed the grant of summary judgment in favor of Kroger and concluded that: “[A]n invitee’s failure to exercise ordinary care is not established as a matter of law by the invitee’s admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Id. at 748.

In the present case, Ingles produced deposition testimony given by Jones which carried its initial burden of producing evidence that the proximate cause of the injury was Jones’ negligent failure to exercise ordinary care to see and avoid the puddle in her path. Jones produced no additional evidence in rebuttal nor did she claim that anything in the control of Ingles distracted her and prevented her from seeing the puddle. Rather, she relied on the same deposition testimony as evidence that she did not see the puddle of clear liquid on the floor despite exercising ordinary care for her safety. In Ingles Markets, we affirmed the grant of summary judgment in favor of Ingles and concluded as a matter of law that Jones failed to exercise ordinary care because she admitted that she could have seen the puddle of clear liquid if she had looked at the floor where she was walking before stepping in it. Given the factual similarity of this case to Robinson, we now conclude that the trial court’s grant of summary judgment in favor of Ingles must be reversed.

Judgment reversed.

Birdsong, R J., concurs and concurs specially. Eldridge, J., concurs specially.

BIRDSONG, Presiding Judge,

concurring specially.

Although I concur fully with all that is said in the majority opinion, I write separately to express my disagreement with several of the views stated in Judge Eldridge’s special concurrence. Nothing in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403), states that Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), is no longer applicable to motions for summary judgment in slip and fall cases. For the most part, the special concurrence stretches the holdings of Robinson far beyond anything the Supreme Court intended. Moreover, these views are contrary to the recent seven member whole court decision in Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (498 SE2d 748). As much as anyone might disagree with the Sharfuddin decision or wish that Robinson had gone further than it did, these opinions are nevertheless binding precedent and must be followed until they are modified, overruled or reversed.

The special concurrence’s quotation from Robinson quoting Hilsman v. Kroger Co., 187 Ga. App. 570 (370 SE2d 755), is misleading: Robinson quoted Hilsman to illustrate the law was prior to Lau’s Corp., and not to state what the law would be after Robinson. See Robinson, supra at 747.

Additionally, except for cases under the second prong of the elements of a foreign substance slip and fall case under Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327), nothing in Robinson states that a defendant-movant can no longer discharge its burden by pointing out the absence of evidence to support the nonmoving party’s case. Sharfuddin, supra. If our Supreme Court had intended such a result, it certainly could easily have done so by stating merely what the special concurrence alleges that it did. Instead, the Supreme Court carefully crafted an opinion that only modified the application of Lau’s Corp. as it concerned the second prong of a slip and fall case under Alterman Foods.

Further, Robinson does not hold or remotely suggest that merely pleading that the defendant had constructive or actual knowledge of the existence of a hazard is sufficient to establish the knowledge element. Robinson makes clear that plaintiffs retain the burden to prove actual or constructive knowledge. Robinson, supra at 747-749. Therefore, if the knowledge element of a slip and fall cause of action is challenged in a motion for summary judgment, a plaintiff has the burden of responding in the manner prescribed in Lau’s Corp.

Eldridge, Judge,

concurring specially.

In my view, the majority opinion contains errors that will impact on future decisions of this Court and may make the granting of summary judgment to defendants “business as usual,” despite the clear holding of Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), to the contrary.

1. Initially, the majority states that “our reconsideration on remand is limited to consideration of the effect of Robinson on the second prong of Alterman Foods [u. Ligón, 246 Ga. 620 (272 SE2d 327) (1980)].”

Thereafter, ignoring its self-imposed limitation, the majority — in a footnote — cites Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), asserting that under the first prong oí Alterman Foods, an owner/occupier may still “prevail on summary judgment by simply pointing out the absence of evidence in the record that the defendant had actual or constructive knowledge of the hazard.”

Aside from being obviously unnecessary for the disposition of this case, such interpretation is incorrect.

Robinson did not “leave intact” the first prong of Alterman Foods as it has been viewed for years by this Court in relation to Lau’s Corp, See Robinson, supra at 747 (rejecting our decisions on this issue in Blake v. Kroger Co., 224 Ga. App. 140 (480 SE2d 199) (1996); Coffey v. Wal-Mart Stores, 224 Ga. App. 824 (482 SE2d 720) (1997); and Kroger Co. v. Farley, 225 Ga. App. 766 (484 SE2d 742) (1997).

Quite to the contrary. While explaining the need to regain balance in the evidentiary burdens in summary judgment on slip and fall cases, Robinson removed such cases from the purview of a Lau’s Corp. analysis. Evidentiary burdens were specifically reestablished “to where they were at the time Alterman Foods was decided,” 11 years before Lau’s Corp. Robinson, supra at 748. Now, after Robinson, the evidentiary burdens on summary judgment in premises liability/slip and fall cases are as follows:

(a) Alterman Foods’ prong one, a defendant’s constructive or actual knowledge of the existence of the hazard, is “established or assumed for purposes of . . . summary judgment” simply by being pled in the complaint: “The rule has been, and continues to be, that on motion for summary judgment, regardless of which party would have the burden of proof at trial, if a material fact has been alleged in the complaint, can be reasonably drawn from the pleadings, or has been raised by the evidence placed in the record by any party, the defendant-movant has the burden of proving the non-existence of that fact.” (Emphasis supplied.) Robinson, supra at 747, citing with approval Hilsman v. Kroger Co., 187 Ga. App. 570, 572 (370 SE2d 755) (1988), for the proper placement of evidentiary burdens at the time Alterman Foods was decided in 1980.

(b) After a plaintiff pleads a defendant’s negligence, the burden is on the defendant to “presente ] evidence that the plaintiff’s injuries were proximately caused either by the plaintiff’s voluntary negligence [showing plaintiff intentionally assumed the risk] ... or by the plaintiff’s casual negligence [showing plaintiff did not use ordinary care].” Id. at 748.

(c) It is “[o]nly after the defendant has produced evidence of the plaintiff’s negligence does the plaintiff have the burden of producing rebuttal evidence.” (Emphasis supplied.) Id. at 748.

Accordingly, “simply pointing out the absence of evidence in the record” no longer meets a defendant’s affirmative evidentiary burden in a motion for summary judgment in a slip and fall case on either prong of the Alterman Foods test. “By re-establishing the evidentiary burdens to where they were at the time Alterman Foods was decided, we lighten the load placed on plaintiffs by more recent judicial decisions, and place on defendants that which is normally required of a defendant — the establishment of a defense to liability.” Robinson, supra at 748.

For the majority to assert otherwise is to ignore the plain language of Robinson.

2. In the majority opinion, the focus continues to be on the “duties of the invitee” and the burden the invitee must carry in order to survive a motion for summary judgment. In fact, Robinson stresses the duty of the owner/occupier to keep its premises safe for an invitee. In this regard, the invitee: (1) “is not bound to avoid hazards not usually present on the premises and which the invitee, exercising ordinary care, did not observe”; (2) “is not required, in all circumstances, to look continuously at the floor, without intermission, for defects in the floor”; (3) “is not obliged to inspect the premises to discover latent defects nor even to observe patent defects”-, and (4) “ ‘is not barred of a recovery simply because by extreme care on his part it would have been possible for him to have discerned the articles left negligently in the aisles or passageways customarily used by the store patrons at the merchant’s tacit invitation.’ ” (Emphasis supplied.) Id. at 741.

Nor may summary judgment be granted based upon “a hazard, no matter its size, [which] was in ‘plain view’ and . . . could have been seen had the invitee looked at the ground.” (Emphasis supplied.) Id. at 742. Under Robinson, the “plain view” doctrine has been returned to sanity. It is applied only “to a hazard in plain view at a location where it is customarily found and can be expected to be.” Id. at 743.

3. Finally, to the extent the majority opinion implies that an invitee demonstrates the exercise of reasonable care for his safety only upon proof “that something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality caused him not to look at the site of the hazard” (the “distraction doctrine”), such implication is also an incorrect interpretation of Robinson.

The “distraction doctrine” is discussed in Division 2 (a) of Robinson. The court discusses the “distraction doctrine” as one of the “troubling aspects of the judicial treatment of the invitee’s exercise of ordinary care.” Id. at 744. Distraction is simply one way in which an invitee may demonstrate the exercise of reasonable care — after the defendant has established a defense to liability.

However, the standard for the exercise of ordinary care is set out in Division 1 of Robinson. Id. at 741. That standard is “whether, taking everything into account, the act is one which the common sense of mankind pronounces wants of such prudence as the ordinarily careful person would use in a like situation.” (Punctuation omitted.) Id. Obviously, meeting the above standard does not demand proof of the “distraction doctrine.”

With regard to premises liability/slip and fall, it should not be business as usual. To my mind, the plain holding of the Robinson decision cannot be ignored. Nor can it be manipulated by pulling together unrelated parts of the decision and placing an emphasis on the opinion’s cites to Alterman Foods.

And, herein, this case should not be reversed simply because of its “factual similarity” to Robinson. This case should be reversed because this Court recognizes and acknowledges that the law requires reversal. Under Robinson, we can no longer find, as a matter of law, that an invitee loses on summary judgment simply because she could have looked at the floor and seen the hazard, but did not. That was our original holding in this case. Under the law as articulated in Robinson, the grant of summary judgment was error.

Decided March 19, 1998.

Robert P. McFarland, for appellant.

Chambers, Mabry, McClelland & Brooks, Emory S. Mabry III, Robert M. Malcom, for appellee.

        Robinson did not change the allocation of burdens applicable to the first prong of Alterman Foods. Robinson, supra at 747-749. As to the first prong, the rule remains that the defendant who will not bear the burden of proof at trial has no burden to produce evidence to negate the plaintiff invitee’s claim, and therefore the defendant may prevail on summary judgment by simply pointing out the absence of evidence in the record that the defendant had actual or constructive knowledge of the hazard. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The special concurrence’s contention that Robinson altered the evidentiary burdens applicable to the first prong under Lau’s Corp. was rejected by this Court in Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (498 SE2d 748) (1998).

       See also Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (498 SE2d 748) (1998) (Birdsong, P. J., for the majority; Eldridge, J., dissenting).