text:
    A92A1538.
    VICK v. THE STATE.
    (423 SE2d 46)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of vehicular homicide, driving under the influence, and other traffic offenses. His trial counsel filed a motion for new trial. After denial of the motion for new trial, appellant’s trial counsel filed the notice of appeal and enumeration of errors pursuant to which the instant case was brought before this court.

1. Appellant’s trial counsel enumerated as error only the general grounds.

Only the trial court has authority to weigh the evidence. This court can consider only the sufficiency of the evidence. According to appellant’s witnesses, he was not driving the automobile at the time of the crash. According to the State’s witnesses, he was. The credibility of the witnesses was for the jury and the jury, as it was authorized to do, believed those witnesses who testified for the State. Construing the evidence most favorably for the State, the evidence was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant has only recently secured the services of substitute appellate counsel who seeks to raise, in the context of the instant appeal, the additional issue of the effectiveness of appellant’s trial counsel and who requests a remand to the trial court for a hearing on that issue.

It has been held that, where the issue of effectiveness of trial counsel is raised for the first time on appeal by an appellate counsel who did not represent the appellant at trial or on motion for new trial and who did not file an amended motion for new trial, a remand for a hearing on that issue may be appropriate. See Johnson v. State, 259 Ga. 428, 430 (3) (383 SE2d 115) (1989). However, this presupposes that the appellate court is otherwise authorized to consider the issue of effectiveness of trial counsel and to order a remand for a hearing on that issue. In the absence of a valid enumeration of error raising the issue of the effectiveness of trial counsel, this court has no jurisdiction to consider that issue. See generally Riggins v. State, 128 Ga. App. 478 (2) (197 SE2d 154) (1973); Calhoun v. Patrick, 116 Ga. App. 303 (157 SE2d 31) (1967). In the instant case, the issue was obviously not raised in the original enumerations of error, because those original enumerations of error were filed by appellant’s trial counsel. The issue was first raised by way of a supplemental enumeration of error filed by appellant’s substitute appellate counsel. Although the first opportunity for appellant’s substituted appellate counsel to raise this issue was by a supplemental enumeration of error, the supplemental enumeration of error, under controlling Supreme Court authority, “came too late and was a nullity.” Foskey v. Kirkland, 221 Ga. 773-774 (1) (147 SE2d 310) (1966). See also Arkwright v. State, 223 Ga. 768, 769 (158 SE2d 370) (1967). Accordingly, we are compelled to hold that we have no jurisdiction to consider the issue of effectiveness of trial counsel and to order a remand for a hearing, because there is no valid enumeration of error raising that issue. Appellant is, therefore, relegated to pursuit of his habeas corpus remedy.

Meders v. State, 260 Ga. 49, 55 (10) (389 SE2d 320) (1990) is distinguishable. Although there appears to have been no valid enumeration of error in Meders, it was a death-penalty case and the Supreme Court predicated its remand, at least in part, upon its authority under the Unified Appeal Procedure to direct further hearings as to any issue, without regard to whether that issue was raised by the defendant or the State. See also Hammond v. State, 260 Ga. 591, 599 (10) (398 SE2d 168) (1990) (death-penalty case). The instant appeal is obviously not a death-penalty case and this court, unlike the Supreme Court, has no authority under the Unified Appeal Procedure. As noted, this court has jurisdiction to consider an issue only pursuant to a valid enumeration of error wherein that issue is raised.

Judgments affirmed.

Pope and Johnson, JJ., concur.

Decided September 28, 1992.

James L. Bass, Lee R. Taylor, for appellant.

Roger G. Queen, District Attorney, for appellee.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A0786, A92A0787.
    HOLMES v. UNIVERSITY HEALTH SERVICE, INC.; and vice versa.
    (423 SE2d 281)
   Johnson, Judge.

Richardine Holmes, as administratrix of the estate of her son, Theodrick Holmes, Jr. brought a medical malpractice action against University Health Service, Inc. d/b/a University Hospitals (UHS). On May 4, 1990, Theodrick Holmes, Jr., then 21 years old, went to the emergency room of UHS seeking treatment for a broken ring finger on his left hand. He was given pre-operative instructions and told to report for surgery on May 7, 1990. Surgery was performed as scheduled. When the cast on his fingers was removed on May 15, 1990, it was discovered that surgery had been performed on the third rather than fourth finger. It was alleged in plaintiff’s third amended complaint that the negligent acts of UHS caused permanent disability and scarring to the third finger and the stress therefrom was the proximate cause of Theodrick Holmes, Jr.’s death on May 27, 1990.

UHS filed a motion to dismiss for failure to file an affidavit in accordance with OCGA § 9-11-9.1. Two weeks after the motion to dismiss was filed, Holmes filed a fourth amended complaint, abandoning the professional malpractice claim and recasting the claim as a tortious battery. The trial court denied UHS’s motion to dismiss.

In March 1991, UHS filed a motion for summary judgment on the grounds that UHS could not be held liable since the alleged tortious acts were performed by independent contractors abrogating any liability on its part. The motion for summary judgment was granted on July 31, 1991. Holmes appeals the grant of summary judgment. UHS filed a cross-appeal alleging that the trial court erred in denying its motion to dismiss.

Case No. A92A0786

Holmes asserts in her single enumeration that the trial court erred in granting UHS’s motion for summary judgment, arguing that genuine issues of material fact remain as to the relationship between UHS and the doctors who performed the surgery. The doctors were not named in this action. “The rule is that for the hospital to be held liable it must be shown that the doctor was an employee of the hospital and not an independent contractor. The true test of whether the relationship is one of employer-employee or employer-independent contractor is whether the employer, under the contract either oral or written, assumes the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.” (Citations and punctuation omitted.) Allrid v. Emory Univ., 249 Ga. 35, 39-40 (285 SE2d 521) (1982). The record shows that the doctors who treated Holmes in this case were residents provided to UHS by the Medical College of Georgia (MCG) under an affiliation agreement which specifically provides that the residents are independent contractors. MCG selects the residents who are assigned to each rotation and establishes the schedules for the rotations. UHS does not pay the doctors directly and has no control over the selection of the doctors nor does it exercise control over the manner, time or method of treatment of any patient.

The record contains a document signed by Theodrick Holmes, Jr. which read: “I acknowledge that I selected the patient’s physician and . . . the patient’s physician is not an employee or agent of University Hospital.” Further, the affidavit of a UHS representative establishes that patients fill out registration materials in designated areas at which conspicuous signs are, and were at all times relevant to this action, posted which read: “Physicians providing medical services within this hospital are not employees of University Hospital. Each physician is an independent contractor.” Holmes was, or should have been aware that the doctors were independent contractors.

This court has acknowledged that a claim may be supportable under a theory of apparent or ostensible agency. Brown v. Coastal Emergency Svcs., 181 Ga. App. 893 (354 SE2d 632) (1987); aff’d sub nom. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987). In order to recover under that theory, however, a plaintiff must present evidence that: “(1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury.” Whitaker v. Zirkle, 188 Ga. App. 706, 709 (374 SE2d 106) (1988). Further, “[i]t is not enough that plaintiff simply believe there is an agency relationship. There is an objective standard. The apparent principal must represent or hold out the apparent agent. Then, too, justifiable reliance must lead to the injury.” Richmond County Hosp. Auth. v. Brown, supra at 508-509. It is clear from the facts of this case that UHS did not represent or hold out that the doctors were the agents of the hospital, and they expressly disclaimed that fact. Therefore Holmes’ arguments that an apparent or ostensible agency relationship existed must fail.

Holmes did not file a brief in opposition to UHS’s motion for summary judgment or submit a statement of facts in dispute in accordance with Uniform Superior Court Rule 6.5. Her original affidavit was not based on personal knowledge and she did not seek leave of the court to file her supplemental affidavit. Her affidavits cannot be considered. See Hershiser v. Yorkshire Condo. Assn., 201 Ga. App. 185 (1) (410 SE2d 455) (1991). Therefore, we find no competent evidence in the record which would rebut the evidence presented by UHS that the doctors were independent contractors.

Decided September 9, 1992

Reconsideration denied September 29, 1992

Watkins & Watkins, John D. Watkins, for appellant.

Knox & Zacks, Gregg E. McDougal, Raymond G. Chadwick, Jr., R. Perry Sentell III, for appellee.

OCGA § 9-11-56 (e) provides, “[w]hen a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” After reviewing the entire record in this case, we find that the trial court correctly granted summary judgment in favor of UHS.

Case No. A92A0787

In its cross-appeal, UHS asserts that the trial court erred in denying its motion to dismiss. In light of our holding in Case No. A92A0786, we find that cross-appeal A92A0787 is rendered moot.

Judgments affirmed.

Carley, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    A92A0821.
    HANSEN v. THE STATE.
    (423 SE2d 273)
   Beasley, Judge.

A jury found Hansen guilty of possession of alcohol by an underage person, OCGA § 3-3-23, and driving under the influence of alcohol with a blood-alcohol concentration of 0.12 grams, former OCGA § 40-6-391 (a) (4). It found him not guilty of driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1).

The police were summoned and Hansen arrested after witnesses at a service station between midnight and 1:00 a.m. observed Hansen’s vehicle “flying off” the street into the station parking lot, nearing a building. The car instead hit and bounced off the curb, flattening a tire. Hansen appeared to “be kind of glassy-eyed” with a “blank look” and seemed to fall down several times as he was changing the tire. He also appeared to have some injuries on his face. He exhibited signs of intoxication to the summoned officer and failed several field sobriety tests.

At trial, Hansen stipulated that at the request of the officer who stopped him, he submitted to a lawfully performed breath test resulting in a blood-alcohol reading of 0.20 grams. He did not dispute that he had been drinking alcohol prior to driving and that he was then under the lawful drinking age.

Hansen’s defense was that he was justified in or coerced into driving his car because he was fleeing the scene of an altercation in which he feared for his life. He claimed: After a baseball game, he drove to a pub to shoot pool, had a couple of beers and there met a man named “Kojak.” Hansen intended to call a cab for home but “Kojak” offered to drive Hansen home in Hansen’s car. The two stopped at a liquor store, “Kojak” purchased a bottle of liquor, and Hansen drank some. They then headed to a house where they stayed on the porch. Once there, the man “went crazy,” began hitting Hansen, robbed him, and told Hansen he was going to kill him. Hansen noticed a gun on the porch, “Kojak” went to get it, and Hansen fled to his car to get away believing he would otherwise be shot.

The State produced evidence that Hansen drove past several exits on the interstate, for five or six miles, before exiting even though he did not see anyone chasing him. Hansen mentioned to the officer that he had been in a fight but did not speak of a gun or a robbery. He told the officer he was “doing all right and had been drinking at the baseball game. Hansen later related to his mother that he and not “Kojak” drove from the pub.

1. Hansen contends the trial court erred in admitting evidence of two prior DUIs. He maintains that the first, occurring on September 2, 1988, and in which his blood-alcohol level was .10, was inadmissible because it resulted in a plea of nolo contendere, and that both it and the second one, occurring on February 17, 1990, and in which his blood-alcohol level was .14, were inadmissible because of lack of similarity to the incident on trial.

Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649) (1991), established “a procedure which requires that before any evidence of independent offenses may be admitted in evidence, a hearing must be held pursuant to USCR 31.3 (B) at which the State makes three affirmative showings. ‘The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. (Cit.) After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular offense or act.’ (footnotes omitted.) [Cit.]” Weems v. State, 204 Ga. App. 352 (419 SE2d 346) (1992). See also Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991); Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952).

The State gave notice of its intention to introduce evidence of the two earlier offenses. Its express purpose for introducing the evidence was to show the defendant’s motive, bent of mind, and propensity for committing the same type of offense. It was to show, as the court noted, that Hansen engaged in this type of conduct, i.e., driving after drinking alcohol without exigent circumstances, so as to discredit his version, that he would not have driven without the perceived threat to his safety. There was a legitimate purpose for the other-crimes evidence.

There was no dispute that Hansen was the perpetrator of the earlier offenses. As to similarity of both independent offenses to the incident on trial, the State offered in hearing outside the jury’s presence that Hansen was underage and intoxicated by alcohol; he submitted to breath tests on all three occasions; in two instances he was driving the same vehicle; one prior offense was in the same county as the one on trial and the other was in an adjacent county; in each instance, Hansen was traveling on a major north/south highway; all three DUIs occurred on the weekend in the late night or early morning hours.

The court’s only concern was the admission of evidence of the nolo contendere plea to the first offense. After the court indicated its ruling, Hansen’s counsel suggested that the jury be given the other-crimes evidence by stipulation. The State agreed and the court told the jury: “A stipulation is an agreement as to the existence or nonexistence of certain facts. Once I tell you what these stipulations are, you accept those stipulations as being true without the necessity for any additional evidence. You are to treat the stipulations as evidence of the facts which have been stipulated.

“The parties have agreed that on September 2nd, 1988, the Defendant, David Scott Hansen, operated a motor vehicle in Clayton County on a highway at a time when he was under the influence of alcohol and that a test of his breath indicated that he had point one zero (.10) grams per cubic centimeter concentration of alcohol in his blood, and that that event occurred at 10:50 p.m.

“The parties have also stipulated that on February 17th of 1990, at 3:56 a.m. in Henry County, Georgia, the Defendant, David Scott Hansen, operated a motor vehicle upon the highways of the State of Georgia at a time when he was under the influence of alcohol and that a test of his breath resulted in the result of point one four (.14) grams per cubic centimeter blood alcohol concentration.”

While reserving his objection to the admissibility of the evidence on the bases now urged, defense counsel accepted the given stipulations as accurate. The court instructed the jury that the defendant was not on trial for the stipulated incidents, that it could consider the evidence to the extent that it found it to be illustrative of the defendant’s bent of mind, course of conduct, motive, scheme or design, if it so found, and that it could not consider the evidence for any other purpose.

First, any procedural defects in proof or presentation of the other-crimes evidence have been waived not only by defendant’s failure to object at trial and his suggestion and stipulation of the procedure used but by his failure to raise any such issue on appeal. Likewise, neither below nor here did defendant object to the court’s limiting instruction. See Stephens and Williams, supra, on the presentation of other-transaction evidence. See also Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991), on the necessity to preserve objection as to other-transaction evidence.

Second, the first incident is not inadmissible because it culminated in a nolo contendere plea. OCGA § 17-7-95 (c) is not violated by introducing a prior similar transaction resulting in such a plea as long as there is no reference to the plea. Proulx v. State, 196 Ga. App. 303 (1) (395 SE2d 668) (1990) (physical precedent). It is the commission of the act, not the criminal disposition, which is at issue. The protection given the plea is not jeopardized, because the plea is not drawn into the jury’s ken.

Lastly, under the particular circumstances of this case, and considering the nature of the crime itself, the prior occurrences were shown to be sufficiently similar, for the purposes for which they were admitted.

The enumeration is without merit.

2. Hansen also contends that the trial court erred in charging the jury on the elements of proof of the DUI counts “without adding the element of proof beyond a reasonable doubt that the defendant was not coerced or was not justified in committing acts.”

Although the court did not instruct the jury in the language and sequence now urged, it instructed on the defendant’s affirmative defenses of justification or coercion and that the burden was on the State to disprove such affirmative defenses beyond a reasonable doubt. The charge considered as a whole, Myers v. State, 260 Ga. 412, 413 (2) (395 SE2d 811) (1990), was not misleading and clearly apprised the jury of the State’s burden in this regard.

Decided September 8, 1992

Reconsideration denied September 29, 1992

Sexton, Moody & Renehan, Lee Sexton, for appellant.

Keith C. Martin, Solicitor, Leigh A. Moore, Assistant Solicitor, for appellee.

Judgments affirmed.

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


text:
    A92A0913.
    RIGGS et al. v. GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
    (423 SE2d 8)
   Beasley, Judge.

This is an appeal by the plaintiffs in a trip and fall case in which the trial court granted the defendant’s motion for summary judgment.

At approximately 8:00 p.m., appellants-plaintiffs, Johnnie and Gary Riggs, who are husband and wife, were shopping at appelleedefendant’s grocery store walking down an aisle looking for cranberry sauce. The store was well lit. Mr. Riggs was pushing a grocery cart, and Mrs. Riggs was walking behind him. Mr. Riggs saw a box containing canned goods sitting on the floor in the center of the aisle. The case was at least twelve inches wide, eighteen inches long, and five- and-one-half inches high. The box had been placed in the aisle by an employee of defendant who was loading the aisles with merchandise so that the night shift could re-stock the shelves. Mr. Riggs walked around the box with the grocery cart and saw no need to warn Mrs. Riggs of the presence of the box. He then spotted the cranberry sauce on the shelf and pointed it out to her. She began walking toward it and tripped over the box while she was looking at the cranberry sauce on the shelf.

Alleging that defendant was negligent in leaving the box of canned goods on the floor and that she had been distracted by the goods on display on the shelves, Mrs. Riggs brought this action against the defendant for personal injuries, and Mr. Riggs asserted a claim for loss of consortium. The defendant moved for summary judgment, arguing that Mrs. Riggs’ own negligence caused her injuries and that defendant had no duty to warn of obvious conditions.

This case is controlled by the civil law plain view doctrine. “The doctrine itself is that one is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries. [Cits.]” Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 474 (249 SE2d 276) (1978).

“ ‘A merchant . . . may place cartons and containers in the aisles while he places articles on the display shelves, and a customer may expect to find such objects in the aisles; nevertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone.’ [Cit.]” Big Apple Super Market v. Briggs, 102 Ga. App. 11, 14 (115 SE2d 385) (1960); Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 428 (1) (263 SE2d 171) (1979); accord Rich’s, Inc. v. Waters, 129 Ga. App. 305 (199 SE2d 623) (1973).

“It was incumbent upon [plaintiff], as a matter of law, to use her eyesight for the purpose of discovering any discernible obstruction or defect in her path. [Cits.]” Emory Univ. v. Duncan, 182 Ga. App. 326, 329 (2) (355 SE2d 446) (1987) (physical precedent only); Froman v. George L. Smith, Ga. &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990). There is no duty to warn of an obvious peril. Lee v. Peacock, 199 Ga. App. 192, 194 (3) (404 SE2d 473) (1991); Gyles v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987).

Even if we were to accept plaintiff’s argument that the defendant was negligent in placing the box in the aisle during store hours, the obviousness of the peril, demonstrated by its plain visibility to Mr. Riggs, precludes recovery for negligence of the defendant. In this regard, Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991) is indistinguishable.

This does not end the analysis because plaintiff contends she was distracted from seeing the carton by defendant’s shelved merchandise. It is true that where the defendant creates or should have known of the existence of a distraction which would normally divert the plaintiff’s attention from where he or she is going, questions of fact may be raised as to whether plaintiff by the exercise of ordinary care could have avoided the peril. See Big Apple Super Market, supra at (3); Kroger Co. v. Anderson, 110 Ga. App. 696 (140 SE2d 108) (1964). “The distraction doctrine, however, is not without limitation. ‘Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.’ [Cit.]” Wal-Mart Stores v. Hester, 201 Ga. App. 478 (411 SE2d 507) (1991).

Decided September 8, 1992

Reconsideration denied September 29, 1992

Patrick J. Gibbs, for appellants.

Greene, Buckley, Jones & McQueen, J. Russell Phillips, for appellee.

Without dispute Mrs. Riggs’ attention was drawn to the cranberry sauce on the shelf by her husband pointing out to her its location. He prompted her to look there instead of where she was walking. Her “distraction” was not induced by defendant but was in the nature of being self-induced. Items of stock on shelves in grocery stores are not in themselves distractions. Application of the plain view doctrine cannot, as a matter of law in this case, be avoided by the distraction theory.

In this case, as in Rich’s, Inc., supra, Emory Univ., supra; Lee, supra; Gyles, supra; Smith, supra; and Wal-Mart Stores, supra, summary adjudication in favor of the defendant was proper.

Judgment affirmed.

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


text:
    A92A1023.
    STOREY v. THE STATE.
    (422 SE2d 879)
   Beasley, Judge.

Storey was convicted of attempting to elude a police officer (OCGA § 40-6-395).

The evidence showed that between 3:15 and 3:30 p.m. one Friday, appellant was driving a late ’60s model blue Camaro in excess of 70 m.p.h. in a northerly direction on Oakbrook Parkway. He was pursued by Officer Foster who, with blue lights flashing and later his siren activated, saw the Camaro turn right from Oakbrook onto the grounds of a warehouse. Foster pursued the Camaro around the warehouse but lost sight of it at each turn. Fellow Officer Diaz, who was in a position to observe the chase but did not participate in it because he was transporting a prisoner, radioed Foster that after exiting the warehouse the Camaro made a right turn back onto Oakbrook. Foster did the same approximately ten to fifteen seconds later. Diaz observed the Camaro turn right onto Center Way, pursued by Foster with his lights flashing. Foster caught up with the Camaro when it stopped at the traffic light at the intersection of Oakbrook and Center Way. Diaz then saw the Camaro drive onto the side of the road and Foster arrest its driver, appellant.

The testimony of appellant and his witnesses conflicts with that given by the police officers. Appellant testified that as he was driving on Oakbrook toward Center Way, he remained on Oakbrook and did not make a right turn in the area of the warehouse. One of appellant’s schoolmates, who was driving behind him, also testified that appellant did not exit Oakbrook until he got to Center Way and that appellant was not speeding or doing anything wrong. Two warehouse employees testified that they saw a police car or cars circling the warehouse at a high rate of speed but did not see any car being pursued.

Appellant was arrested for speeding and attempting to elude but the State dismissed the speeding charge at trial.

1. Appellant, at the proper time, sought a directed verdict of acquittal. See OCGA § 17-9-1.

Such a motion is appropriate only where there is no conflict in the evidence and it demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Zuber v. State, 248 Ga. 314, 316 (3) (282 SE2d 900) (1981).

Appellant also argues that just as the identification evidence was insufficient to establish the perpetrator of the crimes in Hall v. State, 155 Ga. App. 211 (270 SE2d 377) (1980) and Glover v. State, 114 Ga. 828 (40 SE 998) (1902), the evidence against him is likewise insufficient to identify him as the driver of the vehicle which Officer Foster was chasing. Identity in Hall and Glover was based entirely on circumstantial evidence. In those two cases, although the footprint evidence gave rise to strong suspicion of guilt, it did not exclude every other reasonable hypothesis save that of guilt. See OCGA § 24-4-6. Storey’s case is not based entirely on circumstantial evidence. Officer Diaz testified in rebuttal that he himself saw the Camaro exit the warehouse property and become stopped by Officer Foster on Center Way, with appellant driving. Foster testified that he stopped the car which he chased, and appellant was driving.

“ ‘The jury is the sole and exclusive judge of the credibility of witnesses, and after verdict, a reviewing court must construe the evidence in favor of the judgment rendered. . . .’ [Cit.] ‘ “While there is considerable evidence in the record to authorize the.jury to have found the defendant not guilty . . . the jury in criminal cases is the arbiter of all conflicts, and having resolved such issues against the defendant, and there being evidence to support the verdict, the court did not err in rendering final judgment on the verdict.” (Cit.)’ [Cit.]” Harris v. State, 155 Ga. App. 530 (1), 531 (271 SE2d 668) (1980). As in Harris, the evidence was “sufficient to authorize a rational jury to find defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].”

2. Appellant challenges as hearsay the testimony .of Foster that Diaz told him the Camaro made a right turn on Center Way.

The trial court correctly denied the hearsay objection on the ground that this testimony was admissible for the purpose of explaining the investigating officer’s conduct. See OCGA § 24-3-2; Jones v. State, 247 Ga. 268, 272 (7) (275 SE2d 67) (1981).

Acknowledging this, appellant still claims error in that in this case, unlike Mallory v. State, 166 Ga. App. 812, 813 (1) (305 SE2d 656) (1983), and the cases cited therein, the court did not instruct the jury that the testimony could be considered, not for the truth of the matter stated, but only as it might tend to explain the witness’ conduct.

Without a request, the court did not err in failing to give the instruction. Moreover, the hearsay declarant, Officer Diaz, .testified that he in fact made the statement attributed to him. Appellant’s cited cases do not require a reversal.

3. The next question is whether a charge on alibi was required.

“The defense of alibi involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission. The range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence.” OCGA § 16-3-40.

It was not contradicted that appellant was the person stopped by Foster. He even argued, in challenging sufficiency, that mere presence at the scene is insufficient to convict one of an offense. See Smith v. State, 188 Ga. App. 415, 416 (1) (373 SE2d 97) (1988). Appellant admitted he was present in the vicinity of the chase, but denied his was the vehicle being chased and that in any event, he did not speed and did not seek to elude the officer. His explanation, that he was at school moments before being stopped, did not constitute an alibi so as to require the charge. It was not supported by the evidence.

4. Appellant contends that the court refused to charge the jury that in determining whether any reasonable hypothesis other than that of guilt existed, defendant’s explanation had to be considered insofar as it was consistent with the circumstantial evidence properly admitted. Elam v. State, 125 Ga. App. 427, 430 (2) (187 SE2d 920) (1972); Barnett v. State, 153 Ga. App. 430, 432 (3) (265 SE2d 348) (1980).

The State did not rely on circumstantial evidence alone, distinguishing it from the cases cited above. In them, the convictions were reversed because the evidence of guilt, all circumstantial, did not exclude a reasonable hypothesis of innocence consistent with the defendant’s explanation.

5. Finally, appellant contends that the court erred in denying a new trial because of newly discovered evidence showing that Officer T. R. Beining was on Oakbrook Parkway when this incident occurred, but the State did not disclose his identity prior to trial.

Officer Beining’s affidavit was offered in lieu of his court appearance as support for the motion. Appellant had obtained documents showing that Officer Beining was on a vehicle pull-over from 3:23 to 3:28 p.m. at the intersection of Indian Trail Road and Oakbrook Parkway on the day in question. Officer Beining stated that he did not remember seeing appellant’s vehicle there or even being in that vicinity. He did recall hearing radio communications concerning a high-speed chase on Oakbrook, and he remembered being in the area searching for the vehicle until it was stopped on Center Way. He went to Center Way to provide back-up for Officer Foster.

Decided September 8, 1992

Reconsideration denied September 29, 1992

Cheeley & Chandler, Joseph E. Cheeley III, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Assistant Solicitor, for appellee.

This evidence does not meet the requirements for the grant of a new trial based on newly discovered evidence. See Turner v. State, 139 Ga. App. 503, 505 (2) (229 SE2d 23) (1976). For one thing, it did not support appellant’s version and in addition, being notable for its lack of knowledge, it was not so material that it would probably produce a different verdict.

Judgment affirmed.

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


text:
    A92A1083.
    REDDING v. THE STATE.
    (423 SE2d 10)
   Beasley, Judge.

Defendant Redding appeals from the denial of his motion for judgment of acquittal pursuant to OCGA § 17-7-53.1.

The DeKalb County Grand Jury in the May Term of 1988 returned an indictment charging Redding with burglary, aggravated assault, robbery, three counts of aggravated sodomy, and two counts of rape. All offenses were alleged to have occurred on September 29, 1987, and in each instance C. W. was the victim. Redding’s motion to suppress evidence of the burglary, rape, and aggravated sodomy was granted following this court’s decision in Redding v. State, 192 Ga. App. 87 (383 SE2d 640) (1989).

Redding was reindicted in the November Term of 1989 for six of the originally indicted offenses plus an alternate count of burglary involving C. W. on September 29, 1987, and for seven additional offenses against a different victim on another date. On March 12, 1991, the 1988 indictment was nolle prossed for the express reason that the case had been reindicted in 1989. The 1989 indictment was also nolle prossed for the stated reasons that further scientific investigation was required, the case had appeared on several trial calendars, and defendant was serving in the penitentiary for another case.

Redding was again indicted in the May Term of 1991 for the same offenses as alleged in the 1989 indictment against C. W. and the seven additional offenses against the other victim named in the 1989 indictment. Defendant moved for judgment of acquittal on the first seven counts of the 1991 indictment which, save for one count, alleged the offenses against C. W. previously charged in both the 1988 and 1989 indictments.

1. Even though this case remains pending in the trial court, this Court has jurisdiction because the order complained of is subject to direct appeal as a final order. Isaacs v. State, 257 Ga. 798 (364 SE2d 567) (1988).

2. The sole issue is whether the entries of nolle prosequi trigger the application of OCGA § 17-7-53.1, which states: “If, upon the return of two ‘true bills’ of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court’s own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation.”

There appear to be two published decisions related to the construction of OCGA § 17-7-53.1, Isaacs, supra, and State v. Smith, 187 Ga. App. 249 (370 SE2d 15) (1988). In both cases the statute was held not to apply because the indictments were returned before July 1, 1987, the effective date of the statute.

Even if Smith evinces an assumption that a nolle prosequi could trigger the application of OCGA § 17-7-53.1, it is not necessary to the resolution of the case and was thus dicta. State Hwy. Dept. v. Cooper, 104 Ga. App. 130, 136 (121 SE2d 258) (1961).

Redding urges that the term “quashed” as used in the statute should be broadly construed to include any order vacating or nullifying the indictment. This view ignores the limiting language in the Code section, which specifies that the bar to further prosecution intervenes after a second quashing “by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court’s own motion.” “Quashed,” according to Black’s Law Dictionary, means “[t]o overthrow; to abate; to vacate; to annul; to make void.” In the statute it refers only to action on a matter initiated by the defendant or the court, but not the State. The bar under the code section only follows actions adverse to the State, putting it out of court. “Nolle prosequi,” on the other hand, is the State’s formal action on its decision not to further prosecute that indictment. See Black’s Law Dictionary. It is the prerogative only of the State, which may enter it with court approval. OCGA § 17-3-3; State v. Hanson, 249 Ga. 739, 743 (2) (295 SE2d 297) (1982).

Decided September 8, 1992

Reconsideration denied September 29, 1992

Stephen T. Maples, for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Elisabeth G. MacNamara, Assistant District Attorneys for appellee.

OCGA § 17-3-3, also dealing with limitation of prosecutions, clearly distinguishes between indictments which are “quashed” and those which are terminated by “nolle prosequi.” To disregard the limiting language of OCGA § 17-7-53.1 would be to render such language meaningless. A statute is to be interpreted so as to give meaning to its entire content rather than to find parts to be surplusage. Porter v. Food Giant, 198 Ga. App. 736, 738 (402 SE2d 766) (1991). It follows that entries of nolle prosequi do not trigger the bar to prosecution in OCGA § 17-7-53.1.

Redding was not entitled to a judgment of acquittal.

Judgment affirmed.

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


text:
    A92A1121.
    UPSON v. STAFFORD.
    (422 SE2d 882)
   Beasley, Judge.

Upson and Stafford both own identical non-exclusive “permanent” easements across an 80-foot-wide tract adjacent to their separate tracts of land. The easement, conveyed to Upson in 1982 and to Stafford in 1987, are for the following purposes: (a) ingress and egress; (b) construction and maintenance of roadways; and (c) construction, maintenance and use of utility lines and installations.

Upson constructed a roadway within the easement property for access to his adjoining tract. Stafford constructed a drainage ditch for the subdivision on his contiguous tract. In doing so, Stafford removed some trees, vegetation, and dirt. The ditch, which drains the roadway, passes over the easement property for a short distance after leaving and before reentering the subdivision property. The ditch does not “absolutely prevent” Upson from using the easement as a means of access to his tract.

Upson sued Stafford, alleging that the ditch is unauthorized and interferes with his easement rights. He sought its abatement as a nuisance. He also alleged that the removal of trees for the ditch, which trees had served as a buffer between Stafford’s tract and Upson’s roadway, devalued his easement in a recoverable unspecified amount.

Upson moved for summary judgment, arguing that although the ditch incidentally drains portions of the roadway constructed by him, its primary purpose is to provide drainage for Stafford’s subdivision and Stafford does not have an easement for this purpose.

Stafford also moved for summary judgment, arguing that Upson had not presented any evidence that the drainage ditch is an obstruction to his use of the roadway. Stafford argues that the fact that the ditch serves the purpose of draining the subdivision does not destroy its validity for the authorized purpose of “maintenance of roadway,” even though the maintenance is of a roadway constructed pursuant to Upson’s and not his own easement. The owner of the servient tenement has not objected to the ditch, and Stafford argues that Upson does not have “standing” to object to the existence of the ditch. Stafford submitted affidavits executed by himself and an expert witness in which they stated that the ditch aids in the drainage of the roadway and does not interfere with its use. Upson did not submit countervailing proof.

The trial court denied Upson’s motion for summary judgment and granted Stafford’s. Upson appealed to the Supreme Court, which transferred the appeal to this Court under the authority of Krystal Co. v. Carter, 256 Ga. 43, 44 (2) (343 SE2d 490) (1986) (holding that appellate jurisdiction is in the Court of Appeals where the grant of injunctive relief is ancillary to resolution of a legal question over which the Court of Appeals has jurisdiction).

The issue is whether Upson has cause to complain of the ditch. It does not interfere with Upson’s use of the road he built. It does not otherwise encroach on his easement rights because he has no right to a buffer of trees, either expressly or as a reasonably necessary incident of any of the purposes of his easement. See Brooke v. Dellinger, 193 Ga. 66 (17 SE2d 178) (1941).

It is a recognized general principle that where an owner of a nonexclusive easement is using the easement in an unauthorized manner, a co-owner who is “adversely affected” may enjoin the unauthorized use. Mad River Securities v. Felman, 112 NE2d 646, 647 (37 ALR2d 940, 941) (1953).

This accords with Georgia case law, holding that the grantor of an easement has no right to allow another to do anything which would “materially interfere” with the easement holder in the enjoyment of the easement, Hiers v. Mill Haven Co., 113 Ga. 1002, 1005 (39 SE 444) (1901), and also holding that unless the easement is exclusive, the grantor may construct buildings or other improvements on the land which do not “substantially interfere” with the enjoyment of an easement previously granted. See Tippins v. Howard, 189 Ga. 193, 195 (1) (5 SE2d 750) (1939); see also Kiser v. Warner Robins &c. Estates, 237 Ga. 385, 387 (3) (228 SE2d 795) (1976); see generally Pindar, Ga. Real Est. Law & Procedure, §§ 8-25, 8-27 (3rd ed.).

Decided September 8, 1992

Reconsideration denied September 29, 1992

Miller, Simpson & Tatum, James R. Williamson III, for appellant.

DevaulL. Henderson, Jr., Karsman, Brooks & Callaway, Stanley E. Harris, Jr., for appellee.

Where one has a non-exclusive ingress/egress easement by grant in a street or alley, the owner of such easement may enjoin a co-owner from erecting obstructions in the street or alley, and the argument that the complainant is not being damaged or inconvenienced, as where he or she is using an alternate route as a means of access to his or her property, is no defense. See Smith v. Bentley, 70 Ga. App. 13 (27 SE2d 252) (1943), and cits. That case is distinguishable because Stafford’s drainage ditch does not obstruct or adversely affect Upson’s road.

This case is controlled by the general principle that the holder of an easement must be adversely affected, or substantially or materially interfered with, in order to enjoin another owner’s unauthorized use. See Jakobsen v. Colonial Pipeline Co., 260 Ga. 565, 566 (2) (397 SE2d 435) (1990) (as to uses which are implicitly authorized). Otherwise, the remedy lies in the owner of the underlying fee. See Donalson v. Ga. Power & Light Co., 175 Ga. 462 (2) (165 SE 440) (1932).

There is no evidence contrary to that which shows that the drainage ditch does not interfere with Upson’s use of the roadway or any of his rights in the easement. Consequently, the trial court did not err in either denying Upson’s or granting Stafford’s motion for summary judgment. See Cochran v. Southern Business Univ., 110 Ga. App. 666 (1) (139 SE2d 400) (1964); see also Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

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


text:
    A92A1130.
    FOREST VILLAS CONDOMINIUM ASSOCIATION, INC. v. CAMERIO et al.
    (422 SE2d 884)
   Beasley, Judge.

The central issue is the construction of OCGA § 44-3-80 (d), part of the Georgia Condominium Act.

Forest Villas Condominium Association, Inc., sued Camerio and Elliot, owners of 23 out of the 94 units in the Association, to recover an arrearage of condominium fees. In addition to the accrued $28,060, the Association sought interest on the arrearage and the remaining assessments for the year.

Defendants denied the allegations of the complaint, alleged a number of affirmative defenses, and filed a counterclaim which asserted that the Association failed to honor its obligations to perform maintenance and make repairs on the units owned by defendants; the Association had discriminated against defendants and their units because they were rental units as opposed to owner-occupied; and the Association had mismanaged the funds paid to it by defendants. Defendants also alleged that due to the Association’s failure to make certain repairs they had been forced to pay for those repairs themselves. They sought an accounting of the monies handled by the Association; a reimbursement by the Association for all expenses they incurred due to the Association’s breach of duty; a declaration that certain unspecified actions of the Association in contravention of Georgia law and the condominium declaration, bylaws, and rules be declared null and void; attorney fees; and the enjoining of the Association from expending its funds to install certain water meters.

The Association moved for summary judgment, contending that it was entitled to recover the fees because OCGA § 44-3-80 (d) did not permit a unit owner any exemption from liability for assessments. It also urged that defendants’ counterclaim sounded in equity and thus was beyond the authority of the state court. The Association also filed a motion in limine to preclude defendants from introducing any evidence relating to their counterclaim for the same reason.

The trial court denied the Association’s motion for summary judgment altogether, concluding that there were genuine issues of material fact and that “the word ‘exempt’ found in O.C.G.A. § 44-3-80 (d) does not mean that the Defendants in this case could never have any justification for withholding the assessments charged to them.” The court denied the motion in limine, holding that the counterclaim defenses could be presented before it.

1. The first question is whether the court correctly construed OCGA § 44-3-80 (d), contrary to the Association’s contention that it misinterpreted plain and unambiguous language.

, The statutory subsection provides: “No unit owner other than the association shall be exempted from any liability for any assessment under this Code section or under any condominium instrument for any reason whatsoever, including, without limitation, abandonment, nonuse, or waiver of the use or enjoyment of his unit or any part of the common elements.”

The language is plain and susceptible of only one interpretation insofar as it relates to the defenses. See Lunda Constr. Co. v. Clayton County, 201 Ga. App. 106, 107 (410 SE2d 446) (1991). There is no legal justification for a condominium owner to fail to pay valid condominium assessments. This reflects a clear choice by the legislature that the owner’s obligation to pay assessments be absolute and a condominium unit owner involved in a dispute with the condominium Association about its services and operations may not exert leverage in that controversy by withholding payment but must seek other remedy. The obligation to pay the assessment is independent of the Association’s obligations to provide services. This is necessary because the communal business of the condominium Association for the benefit in common of all condominium owners continues unabated during the pendency of any such individual dispute. The public policy expressed in the statute assures that fulfillment of obligations and the functioning of a condominium association as a whole not be jeopardized or compromised by individual disputes, which may or may not be meritorious. See Rivers Edge Condo. Assn. v. Rere, 568 A2d 261 (Pa. Super. 1990). See also Newport West Condo. Assn. v. Veniar, 350 NW2d 818 (Mich. App. 1984).

The state court misinterpreted OCGA § 44-3-80 (d) insofar as the defenses or “exemptions” urged by defendants are concerned. They do not assert, nor is there any evidence, that the condominium instruments were anything other than lawful, see OCGA § 44-3-76, or that the subject assessments were made other than in compliance with the condominium instruments and law. See OCGA §§ 44-3-71 (5) and 44-3-76. Whether such would be a defense permitted under OCGA § 44-3-80 (d) in a suit for unpaid fees is not before us. Cf. San Antonio &c. Homeowners Assn. v. Miller, 761 SW2d 460 (Tex. App. 1988). Plaintiff Association was entitled to summary judgment on defendants’ liability for unpaid assessments.

2. As to the counterclaim, we meet the contention that denial of the motion in limine was error because state courts have no jurisdiction in matters that are equitable in nature and defendants’ counterclaim sounded in equity. The lack of equity jurisdiction was also the basis for urging summary judgment on the counterclaim.

Equitable remedies are beyond the jurisdiction of the state court, OCGA § 15-7-4; Moody v. Mendenhall, 238 Ga. 689, 691 (2) (234 SE2d 905) (1977). The counterclaim states a cause for breach of contract in that the Association allegedly failed to perform certain maintenance and repairs on the defendants’ units, provided disparately less services to defendants’ rental units, and caused defendants to expend sums for repair and maintenance which was the obligation of the Association. Damages, attorney fees, and a ruling that certain past actions of the Association are null and void were sought. Defendants also seek an accounting in order to determine the amount of the Association’s obligations under the breach of contract claim, but this does not convert such claim into an action for an equitable accounting. Gifford v. Jackson, 223 Ga. 155 (154 SE2d 224) (1967). A legal accounting may be an appropriate step in determining the amount of damages in a breach of contract action in a court of law. Id.

Decided September 8, 1992

Reconsideration denied September 29, 1992.

Julian A. Mack, for appellant.

Andersen, Davidson & Tate, Gerald Davidson, Jr., Larry C. Old-ham, for appellees.

One portion of the counterclaim alleges that as an alternative to reimbursement to defendants for water meters, the Association “should be enjoined from spending its funds for the sole benefit of owners of units other than [defendants].” The counterclaim does not expressly pray for such. The state court had jurisdiction to grant total relief of a legal nature.

It correctly refused to grant the Association’s motion in limine or motion for summary judgment (or more properly, motion to dismiss) on the counterclaim on the basis of lack of jurisdiction of it. Having ruled that the state court has jurisdiction of the legal claims, we look to the record and find no evidence which pierces the allegations of the counterclaim, thus leaving genuine issues of material fact for resolution by the factfinder.

3. The denial of summary judgment as to the main claim is reversed to the extent plaintiff is entitled to partial summary judgment as to liability. OCGA § 9-11-56. The pendency of genuine issues of material fact in regard to defendants’ counterclaim precluded the requested grant of summary judgment on it.

Judgments affirmed in part and reversed in part.

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


text:
    A92A1242.
    DOMINIAK v. CAMDEN TELEPHONE & TELEGRAPH COMPANY.
    (422 SE2d 887)
   Beasley, Judge.

Dominiak, an ordnance equipment mechanic employed by the Naval Submarine Base in Kings Bay sued the Camden Telephone & Telegraph Company. The suit seeks damages due to injuries resulting from an electrical shock he received when lightning struck near a defense weapons facility building in which he was using a telephone. Dominiak alleges that Camden was negligent in failing to install or maintain lightning protection equipment (“arrester”) on the telephone line.

Camden denied any involvement in the installation or maintenance of the line and filed third-party complaints, alleging that the line was installed by a base contractor.

Dominiak appeals from the grant of summary judgment to Camden.

In affidavits, Camden employees stated: This telephone line was a drop line; Camden did not install any telephone or telephone lines into the building or run the drop line; after the telephone was installed, Camden reassigned it from a contractor on the base to a defense weapons facility building upon request, but this was accomplished through its main switchboard and did not require on-site installation; prior to Dominiak’s incurring his injuries, two Camden employees responded to two separate service calls to repair a cut in the drop line, but the cut was beyond the termination point of the Camden system and at least 100 yards from the building in which the telephone was housed; lightning protection devices would normally be installed on the outside of a building or on the inside in a closet or utility room; there was nothing about the tasks Camden was requested to perform that would or did put Camden employees on notice that there were no lightning protection devices; Camden had no knowledge or notice that there was no lightning protector; if a Camden employee entered the building, it was to make sure the phone was working or to place a telephone call in order to get the employee’s next assignment.

Camden’s motion for summary judgment relied upon these affidavits and referred also to Dominiak’s deposition. Plaintiff’s lead attorney, who is a Florida resident, stated that he did not respond to Camden’s motion for summary judgment because he was unaware of USCR 6.3 (providing that unless otherwise ordered by the court, motions for summary judgment shall be decided by the court without oral hearing, with oral argument on any motion for summary judgment permitted upon written request not later than five days after the time for response), that he thought there would be a hearing on defendant’s motion pursuant to OCGA § 9-11-56 (c) (providing that the motion shall be served at least 30 days before the time fixed for the hearing), and that he could respond to it and file evidence prior to the hearing. Unknown to either party, Dominiak’s deposition had not been filed with the court. The depositions of Camden employees were not taken until after Camden moved for summary judgment, so they did not figure in its consideration, although they were taken over a month before the court ruled.

The trial court’s order stated: “Subsequent to a review of the file, it appears that there has been no answer [to the motion for summary judgment] filed. Therefore, [defendant’s] motion for summary judgment is hereby granted.”

The depositions of Dominiak and the Camden employees were subsequently filed and Dominiak moved for reconsideration on the grounds that plaintiff’s attorneys were unaware of the requirement that a response be filed to a motion for summary judgment, and that they believed a hearing would be held, with an opportunity to file evidence and citations of authority beforehand. The motion was denied.

1. Dominiak contends that the trial court abused its discretion in summarily denying the motion for reconsideration, in that Dominiak demonstrated excusable neglect as a matter of law.

Plaintiff was represented by two Florida lawyers. Lead counsel was not licensed to practice law in Georgia, although the other attorney was. There was no association of a resident Georgia lawyer, as required by USCR 4.4 (A) (3). Camden’s motion for summary judgment explicitly stated that it was being filed pursuant to USCR 6.5. A review of the annotations to OCGA § 9-11-56 (c) reveals the existence of USCR 6.3, which is not inconsistent with OCGA § 9-11-56 (c). Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 735 (1) (350 SE2d 265) (1986), aff’d 256 Ga. 739 (354 SE2d 160) (1987).

C & S Nat. Bank v. Burden, 145 Ga. App. 402, 403 (1) (244 SE2d 244) (1978), cited by Dominiak, holds that the trial court has discretion to grant a motion to vacate a judgment during the term of court at which the judgment is rendered. In this case, the refusal to find that the circumstances showed excusable neglect did not constitute an abuse of discretion. The explicit procedure not having been followed, the court was not compelled to reconsider the motion for summary judgment in light of the additional evidence.

2. Dominiak contends that the trial court erred in granting Camden’s motion for summary judgment, based on his failure to file a response rather than upon a review of the record to determine whether material issues of fact existed.

From the wording of the trial court’s order, it does appear that it entered an unauthorized “default summary judgment.” “ ‘There is no such thing as a “default summary judgment.” By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. “A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and the evidence that the party so moving is entitled to prevail.” (Cits.)’ [Cit.]” Wilson v. Valentine, 199 Ga. App. 244 (1), 245 (404 SE2d 600) (1991).

Nonetheless, even if the motion for summary judgment was granted for an erroneous reason, it will be affirmed if it should have been granted for another reason. See Lewis v. Atlanta Cas. Co., 179 Ga. App. 185, 189 (2) (345 SE2d 858) (1986).

3. Dominiak contends that his deposition testimony created an issue of fact as to whether Camden had actual notice of the absence of lightning protection equipment on the telephone line, but “[t]he burden of timely filing depositions and other discovery material with the trial court lies with the party which intends to rely upon it. See OCGA § 9-11-29.1.” Sheffield v. Zilis, 170 Ga. App. 62, 64-65 (2) (316 SE2d 493) (1984); Whisenant v. Fulton Fed. &c. Assn., 194 Ga. App. 192 (390 SE2d 100) (1990). Since Dominiak’s deposition was not on file at the time Camden’s motion for summary judgment was ruled on, neither parties’ references to it are considered. See Myers v. Barnard, 180 Ga. App. 192 (348 SE2d 733) (1986); compare Whisenant, supra.

Dominiak further contends that the trial court erred in relying on the affidavits of the Camden employees since two of these employees testified in their depositions that their affidavits were not notarized or sworn to before they sent them to defendant’s counsel. They appeared regular on their face.

In Bell v. Sellers, 248 Ga. 424, 426 (1) (283 SE2d 877) (1981), the Supreme Court “adopt[ed] the rule that objections to expert opinion affidavits will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on the motion for summary judgment.”

Dominiak not having objected to the trial court’s consideration of these affidavits in connection with the motion for summary judgment, and reconsideration not having been required by law, the affidavits were not defective for purposes of that ruling on the motion for summary judgment.

The affidavits of the Camden employees established without contradiction that Camden did not own or install the telephone used by Dominiak or the drop line leading to it. Compare Habersham EMC v. Dalton, 170 Ga. App. 483, 485 (317 SE2d 312) (1984); Vickers v. Ga. Power Co., 79 Ga. App. 456, 459 (54 SE2d 152) (1949). Nor did it participate in the installation of the drop line. Compare Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90 (176 SE2d 487) (1970). Its response to a request to repair a cut in a drop line which it had not installed and did not own would not, without more, create a duty on its part to make additional repairs. See Barry v. Stevens Equip. Co., 176 Ga. App. 27 (335 SE2d 129) (1985). Unlike Mixon v. Dobbs Houses, 149 Ga. App. 481 (254 SE2d 864) (1979), there is no evidence of any reliance on Camden to do more. Camden is not chargeable with ordinary negligence by reason of the fact that it reassigned the telephone through its main switchboard without an on-site inspection, and there is no basis in the record upon which it could be found that this constituted negligence.

Based on the pleadings, answers to interrogatories, and affidavits then on file, there was no genuine issue as to any material fact and Camden was entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

Decided September 8, 1992

Reconsideration denied September 29, 1992

Parker, Johnson, Cook & Dunlevie, G. William Long III, Everett W. Gee III, for appellant.

Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, Karsman, Brooks & Callaway, Stanley Karsman, Fendig, McLemore, Taylor & Whitworth, Albert Fendig, Jr., for appellee.

Judgment affirmed.

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


text:
    A92A1248.
    KERR v. THE STATE.
    (423 SE2d 276)
   Beasley, Judge.

Kerr was convicted of violating the Controlled Substances Act by possession of cocaine (OCGA § 16-13-30), driving under the combined influence of marijuana and cocaine (OCGA § 40-6-391 (a) (3)), and operating a motor vehicle without effective insurance (OCGA § 33-34-12 (b)).

Early one Saturday morning, Deputy Sheriff Freeman was on patrol and encountered a car driven by Kerr. The car’s headlights were at high-beam, and Kerr did not dim them although the drivers of oncoming vehicles were flashing their bright lights. He was also driving slower than the normal flow of traffic. Freeman followed Kerr and observed him wait at a stop sign for approximately 20 to 30 seconds before moving.

For these reasons, Freeman stopped Kerr. Kerr said he had no insurance. Freeman noticed the odor of alcohol on Kerr’s breath and that he was under the legal drinking age. After being given the Miranda warnings, Kerr stated he had consumed two beers.

Freeman asked Kerr to submit to a series of field sobriety tests. During the A-B-C test, Kerr omitted a couple of letters and misplaced others. When Freeman asked Kerr to take nine steps forward placing the heel of his front foot to the toe of his back foot and keeping his hands by his side, he wobbled as he went and kept steadying himself by raising his hands. When Freeman, in conducting the Horizontal Gaze Nystagmus test, asked Kerr to hold his head still and watch a pen which was being moved horizontally about six to eight inches from the tip of his nose, Kerr’s eyeballs exhibited spasmodic motions. Kerr had glassy eyes, was unsteady on his feet, and was very inattentive. Freeman reached the opinion that appellant was under the influence of alcohol or drugs to the extent that it was less safe for him to operate a motor vehicle.

Kerr agreed to take a breath test, and he registered .03 grams of alcohol in his system. Freeman believed Kerr was more intoxicated than was registered and he asked Kerr to take a urine test. Kerr complied. Freeman sealed the lid of the specimen jar with evidence tape and placed the jar in a sealed plastic bag. The evidence lockers in the sheriff’s office were full, so Freeman locked the bag in a footlocker in the trunk of his patrol car, secured with a padlock that had one key kept in his exclusive possession. On Monday, Freeman gave the urine specimen to Clanton, the employee responsible for mailing blood and urine samples to the State Crime Laboratory.

Clanton testified that it is her procedure, when given a urine specimen, to wrap more tape around the container to avoid leakage. She testified that she used to place the specimens in either a ziplock bag, box, or large manila envelope for mailing, but currently used a box. Although she testified at trial that she could not remember how she packaged Kerr’s urine specimen, she had testified at the hearing on a motion to suppress that she had put it in a ziplock bag, placed paper towels around it, and mailed it in a small box.

Solomons, who supervises the toxicology section of the GBI Division of Forensic Sciences, testified that the specimen jar containing Kerr’s urine sample was received in a ziplock plastic bag in a large manila envelope sealed with tape. Although the screw-on lid of the specimen container was sealed with evidence tape, a small amount of the urine had leaked into the plastic bag in transit. At least three-fourths of the specimen was in the container. Solomons placed the specimen in cold storage with other samples.

Callahan, a forensic toxicologist, analyzed the urine specimen and testified that she found marijuana metabolites, cocaine, and benzoylecgonine (which is cocaine’s metabolite). Appellant objected to this testimony under Durden v. State, 187 Ga. App. 154 (1) (369 SE2d 764) (1988); Box v. State, 187 Ga. App. 260 (370 SE2d 28) (1988), and Camarata v. State, 188 Ga. App. 41, 42 (1) (371 SE2d 885) (1988), on grounds that the witness had not analyzed the quantities of the controlled substances in the urine. Finding Durden and its progeny distinguishable, the trial court overruled this objection.

1. Appellant contends that the trial court erred in denying his motion to suppress the GBI report of the findings that the controlled substances were present in his urine sample.

He argues that Clanton’s testimony at the earlier hearing, that she had placed the urine sample in a box, the testimony by GBI personnel that it had been received in an envelope, and the fact that the contents had leaked in transit established a prima facie case of tampering during the chain of custody, entitling him to suppression of it and all evidence relating to it.

“The only burden on the state is to show with reasonable certainty that the evidence examined is the same as that seized and that there has been no tampering or substitution. [Cits.]” Phillips v. State, 167 Ga. App. 260, 263 (2) (305 SE2d 918) (1983). “[T]he burden is on the state to show with reasonable certainty that no tampering with the evidence has occurred, but where there is only a bare speculation of tampering it is proper to admit the evidence and let whatever doubt remains go to its weight.” Graham v. State, 152 Ga. App. 233, 235 (1c) (262 SE2d 465) (1979). There being no evidence of tampering or substitution but merely of a leak of part of the sample, and no evidence that the leak affected a contamination of the sample, the trial court did not err in doing that here.

2. Appellant contends that the trial court erred in allowing the forensic expert to testify as to the degree of appellant’s drug-related intoxication and his impairment to operate a motor vehicle when the exact numerical quantity of the drug was not stated in the forensic report.

Appellant relies upon Durden and its progeny. In Durden, the forensic expert testified that in order to issue a statement in a report that marijuana metabolites were found, there has to be at least 25 nanograms per milliliter present; a quantitative analysis of Durden’s blood sample showed approximately 180 to 200 nanograms per milliliter present; this concentration indicates recent usage or that the person is a daily chronic abuser; such person would probably be very unsteady on his or her feet, his or her mind would tend not to be able to focus too clearly, and he or she would probably be glassy-eyed; and that level of marijuana, in combination with alcohol, would be detrimental to someone’s driving ability.

The report submitted to Durden, pursuant to his OCGA § 17-7-211 request for copies of written scientific reports, stated only that marijuana metabolites had been found in his blood and urine. It did not state the results of the quantitative testing. Although Durden had no objection to the state’s admitting evidence that marijuana metabolites were found, he did object to the evidence as to the quantity found and the effect of marijuana usage indicated or proved by such quantity. Noting that this omission in the report had disadvantaged defense counsel in his cross-examination of the forensic expert, and that OCGA § 17-7-211 would be emasculated if it were interpreted as not requiring the state to produce the results of the scientific testing simply by omitting them from the written report, the court agreed with Durden’s arguments and reversed his conviction.

In this case, the forensic expert testified that unlike blood sampies, urine specimens are tested as being either negative or positive for the particular substance without quantifying the amount.

Upon being posed hypothetical questions based on facts in evidence, the witness subsequently testified that where an individual with glassy eyes and a .03 grams of blood-alcohol concentration had responded to field sobriety tests in such a way that the officer conducting the tests had determined that he was under the influence, would be consistent with someone who was under the influence of alcohol and/or cocaine; and, the influence of those two substances would impair the person’s ability to operate an automobile safely.

As recognized by the trial court, Durden’s holding that the results of the quantitative testing should not have been admitted in evidence is inapplicable here, because no quantitative testing was done. The trial court did not err in allowing the witness to answer the hypothetical question posed. In answering it, the forensic expert did not testify to the degree of appellant’s intoxication and impairment to drive.

3. Appellant contends that the trial court erred in denying his motion for a directed verdict of acquittal on the charge of driving under the combined influence of alcohol and cocaine. He argues that such a charge requires a quantifying analysis to determine the degree of intoxication and impairment.

OCGA § 40-6-391 (a) (3) provides, “A person shall not drive or be in actual physical control of any moving vehicle while: . . . Under the combined influence of alcohol and any drug to the extent that it is less safe for the person to drive.” Howell v. State, 179 Ga. App. 632, 634 (1) (347 SE2d 358) (1986). “There is no requirement that the person actually commit an unsafe act. [Cits.]” Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268) (1990). There is, however, the requirement that the alcohol and/or drugs ingested adversely affect one’s ability to drive. This must be proved in order to convict under all subsections of section (a) except subsection (4). Although the legislature in OCGA § 40-6-392 has created evidentiary rules relating to measurable levels of alcohol in the blood, there are no similar statutory rules for controlled substances. Camarata, supra, also makes note of this.

Nonetheless, in Durden the forensic expert could testify that the degree of impairment, as manifested by the defendant’s behavior, was caused by usage of the controlled substance, based on the amount used and the recency of usage, because there was a quantitative analysis of the substance in the defendant’s blood. In this case, the officer testified to the degree of impairment as manifested by the defendant’s behavior. The forensic expert could testify that the controlled substances, as well as the alcohol, were present in the defendant’s urine. The statute does not require a certain amount to be shown. Whether the impairment resulted from the combined influence of alcohol and drugs was a jury question. A rational trier of fact was authorized to find appellant guilty beyond a reasonable doubt. Howell, supra.

Decided September 8, 1992

Reconsideration denied September 29, 1992

James E. Hardy II, for appellant.

Garry T. Moss, District Attorney, C. David Turk III, Assistant District Attorney, for appellee.

4. Appellant contends that the trial court erred in not directing a verdict of acquittal on the charge of possession of cocaine.

He argues that where the charge is based upon a urine sample the contents of which cannot be quantified, the urine sample itself is inadmissible, all evidence relating to it should be suppressed, and the court should direct a verdict of acquittal.

As previously stated, in Durden the forensic expert testified that in order to issue a report that marijuana metabolites were found in a blood sample, there has to be at least 25 nanograms per milliliter present. In this case, appellant was charged with possession of cocaine based on the fact that his urine sample tested positive for that substance. Durden does not involve issues relating to any quantifying standard for determining the presence of cocaine in a urine specimen. The record in this case does not support appellant’s arguments.

Judgment affirmed.

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


author: Beasley, Judge.'

text:
    A92A1296.
    TAYLOR v. JONES COUNTY.
    (422 SE2d 890)
   Beasley, Judge.'

Jones County condemned Taylor’s tract of land for the Town Creek Reservoir, a joint project of the county and the Macon-Bibb County Water and Sewage Authority. The county used its power of eminent domain to secure property and the Authority bore the costs and expenses. A special master was appointed and both parties appealed his award to superior court, pursuant to OCGA § 22-2-112. Taylor is dissatisfied with the jury award.

1. He contends that the trial court erred in granting the county’s motion in limine prohibiting him from introducing evidence that the Authority and not the county was the party providing funds for the condemnation.

By analogy to the principle that neither indemnification of the plaintiff nor the defendant by a collateral source is admissible in evidence, see Denton v. Con-Way Southern Express, 261 Ga. 41, 42-43 (402 SE2d 269) (1991), the county argued that the identity of the payor is irrelevant to the issue of the fair market value of the property, and that it would prejudice the county for the jurors to consider the award not being paid for by county taxpayers. Taylor argued that it would prejudice him for the jurors, in error, to consider the award as being paid for by them as taxpayers. The court ruled that the identity of the payor was not an issue and should not be commented upon.

The motion in limine lay within the discretion of the trial court, considering the nature of the evidence as related to the issues. It was not an abuse of discretion to grant it. Cf. Canada West, Ltd. v. City of Atlanta, 169 Ga. App. 907, 913 (8) (315 SE2d 442) (1984), involving the addition of the ultimate transferee as a party under OCGA § 9-11-25 (c).

2. Taylor contends that the trial court erred in denying his motion to correct the county’s opening statement that, “What is the fair market value of his property? That’s what he’s entitled to. That’s what the county wants to pay.”

Acknowledging that this statement was a “slip of the tongue,” Taylor did not object to it until after the second witness had testified on direct examination. The trial court denied the objection, on the ground that it would do more harm than good to call the jury’s attention to it at that point. This matter, too, is addressed to the discretion of the trial court, and we find no abuse. See Shannon v. Kaylor, 133 Ga. App. 514 (1) (211 SE2d 368) (1974).

3. The heart of the case is whether the trial court erred in refusing to allow Taylor to present evidence that the condemnation resulted in business losses, including expenses for the removal of business equipment. Also enumerated as error is the court’s refusal to charge the jury concerning its calculation of damages when there is a taking of land on which a business is conducted.

Taylor owns Ken Taylor Electric. His advertised business address is in Macon. Taylor called an expert witness who testified to the fair market value of his house and surrounding acreage as residential property. He was not permitted to introduce evidence that he stores business equipment, inventory, and files in one of the rooms in his residence; he rents one of the rooms for residential purposes; he receives business calls at his residence and meets with his employees there; he parks semi-trailers used in his business on his land and stores scrap material there; he is entitled to use his property for these non-residential purposes, because he was using the property for such purposes when residential zoning restrictions were enacted, and it has been “grandfathered”; given the property’s special zoning status and its proximity to the Macon business district, it is unique; as a result of losing this property for its dual residential-business use, he will have to purchase separate residential and commercial tracts; he will incur a net business loss of approximately $60,000 to $70,000, as well as $1,500 in expenses for moving business equipment.

A person who conducts an established business in a location which cannot be duplicated suffers a loss which is particular and unique, with the result that the market value of the property does not represent just and adequate compensation. Heilman v. Dept. of Transp., 162 Ga. App. 547, 548 (1) (290 SE2d 189) (1982); but compare Almond v. MARTA, 161 Ga. App. 363, 365 (2) (288 SE2d 129) (1982) (holding that difficulty in replacing a location is not a test of “uniqueness”). If the business property is unique, and there is a total destruction of the business at the site condemned, the condemnee is entitled to compensation for business losses as a separate element of compensation. Cobb County v. Crain, 172 Ga. App. 594 (323 SE2d 890) (1984).

Aside from issues concerning the unique relationship between a business and condemned property in order to recover business damages, the property owner may recover compensation for the value of his property where the property has a unique value to him such that fair market value does not represent just and adequate compensation. Pursley, Ga. Eminent Domain, §§ 5-12; 6-3 (1982). Value to the owner means pecuniary value and not sentimental value. Although the location of the property is a factor in determining its value, the fact that the condemnee lives near the property is not relevant. Unique value is based on the characteristics of the land, and the use of the land by the owner, but not the characteristics of the owner. Id. at § 6-3.

The valuation of condemned property according to its unique or peculiar value is an alternative to valuation based on fair market value. Department of Transp. v. Vest, 160 Ga. App. 368, 370 (2) (287 SE2d 85) (1981). Consequently, the condemnee is not entitled to present witnesses to testify to the valuation of the condemned property under both methods. See State Hwy. Dept. v. Smith, 120 Ga. App. 529, 532 (4) (171 SE2d 575) (1969); see also Department of Transp. v. Willis, 165 Ga. App. 271, 272 (2) (299 SE2d 82) (1983).

Taylor was not conducting an established business on the condemned property, as must be shown in order to recover for business losses. Department of Transp. v. Morris, 194 Ga. App. 813 (2) (392 SE2d 291) (1990); Bowers v. Fulton County, 221 Ga. 731 (146 SE2d 884) (1966). Except for using his land to park business vehicles and store scrap material, he did not use it for business purposes to any greater extent than any homeowner could incidentally use his residence for such purposes. His business was located elsewhere. Although he might have sought to show that, given his uses of the property because of its special zoning status it was worth more to him than its fair market value as a residence, he was not entitled to prove both its residential fair market value and present evidence of business losses and expenses as a separate element of compensation.

Decided September 8, 1992

Reconsideration denied September 29, 1992

Bush, Crowley, Leverett & Johnson, J. Wayne Crowley, for appellant.

Groover & Childs, Frank H. Childs, Jr., Mathis, Jordan & Adams, Virgil L. Adams, for appellee.

Judgment affirmed.

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


text:
    A92A1431.
    GUNNIN et al. v. DEMENT.
    (422 SE2d 893)
   Beasley, Judge.

This is an appeal from a judgment entered on a jury verdict for plaintiff purchaser in an action to rescind a contract for the sale of stock in a motorcycle franchise.

Dement executed an agreement with Harley Davidson of Savannah, Inc. and its sole shareholders Claude O. Gunnin, Jr. and Diane S. Gunnin for Dement’s purchase of 13 1/3 percent of the outstanding stock for $100,000. Approximately three months later, Dement, via counsel, made written demand upon the Gunnins for return of his $100,000 investment. The demand letter stated that part and parcel of the agreement was that the $100,000 be used to finance expansion of the company and that it had become apparent to Dement that the money had not been so invested but instead had been used for the Gunnins’ personal well being and benefit.

Dement filed a complaint for rescission against the Gunnins three months following the unsuccessful demand, claiming fraud in the inducement of the contract and failure to perform under the contract by, inter alia, not giving Dement stock certificates or any indicia of ownership. Stubborn litigiousness was also alleged.

Four months later, Dement obtained a temporary restraining order enjoining the Gunnins, individually and as shareholders and officers of the corporation, from selling any corporate assets except in the ordinary course of business. The restraining order also directed defendants to deliver to Dement his certificate of stock representing his ownership of outstanding stock, which they did. Plaintiff placed the certificate in the court registry before the trial commenced.

Seven months following issuance of the restraining order, Dement filed a recast complaint for rescission of the contract, adding Harley Davidson of Savannah, Inc. as corporate defendant plus a derivative claim based on Dement’s status as a minority shareholder. The derivative claim was abandoned prior to the start of trial.

The jury awarded Dement $117,000 in damages plus $7,185 in attorney fees. Judgment was entered thereon, jointly and severally, against the Gunnins and the corporation. The three defendants appeal.

The challenge is twofold. Appellants claim the trial court erred in denying them a directed verdict because there was no evidence that Dement had ever tendered the stock he received under the contract, and because Dement’s only evidence of fraudulent statements or representations ■ related to future acts rather than past or present ones, which would not support a claim of fraud in the inducement.

1. Tender. “One who seeks rescission of a contract for fraud must restore or offer to restore the consideration received thereunder, as a condition precedent to bringing the action [cit.]; however, restoration by the purchaser is not an absolute rule, and does not require that the defrauding party be placed in exact status quo, but only that he be placed substantially in his original position and that the party rescinding derives no unconscionable advantage from the rescission. [Cits.] One seeking to rescind a contract for fraud must restore or tender back the benefits received under the contract, or show a sufficient reason for not doing so; he need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible [cit.], or when to do so would be unreasonable. [Cits.]” Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589 (1) (411 SE2d 518) (1991).

First, prior to filing suit, Dement had clearly indicated by letter that he wished to rescind the transaction. At that time he had nothing to tender back to the defendants; he had been given no indicia of ownership whatsoever for his stock investment. It was only after issuance of the temporary restraining order with its directive for defendants to deliver a stock certificate that Dement had any physical documentation which could be tendered back.

Second, Dement received no unconscionable advantage from the rescission. He was asking principally for the return of his investment in exchange for relinquishing his stock interest.

Third, a restraining order prior to the forced delivery of the stock certificate enjoined the Gunnins from doing anything with the corporate stock other than in the ordinary course of business. The order was premised on protecting Dement’s interest in the business as a minority shareholder. Any later physical tender back of the documentation of Dement’s corporate interest would not have materially improved the Gunnins’ position or restored their status as sole shareholders with complete control of the stock in the face of the court order.

Dement’s failure to immediately tender back the late-received documentation of his corporate interest, which was the evidence to prove his interest, did not eliminate his right to rescission under the circumstances. Nor did his decision to add a shareholder derivative claim in his recast complaint do so. He dropped the claim prior to trial and did not receive any benefit whatsoever by lodging it in the first place. Compare Carpenter v. Curtis, 196 Ga. App. 234 (395 SE2d 653) (1990), in which the party seeking rescission used his status as majority stockholder to force corporate dissolution.

2. Fraud. Appellants do not claim that there was no evidence of fraud but merely that the fraud claimed was not actionable because it related to future events.

Dement alleged at trial that he was fraudulently induced to enter into the contract by certain representations and promises made by the Gunnins as to their authority and specific actions they would take as directors and majority shareholders regarding the corporation. None of these were in the agreement, which contained a merger clause. The claimed misrepresentations and promises were: The money from Dement’s purchase of the stock would be used to finance expansion of the business including a move to another location with upgraded facilities and the addition to the existing business of t-shirt sales. The Gunnins would repurchase Dement’s stock from him after one year if Dement was not satisfied with the company’s performance. If Dement retained the stock for more than one year, the Gunnins guaranteed a return on his investment equal to the local interest rate on certificates of deposit, which was then approximately 8 1/2 percent. The Gunnins had the right to sell the outstanding shares of the company stock and thereby the company’s franchise agreement when in fact the franchise agreement forbade the selling of such franchise rights without the prior consent of the franchisor.

All save the final allegation of misrepresentation relate to acts following the execution of the agreement, but that does not preclude Dement’s claim of fraud.

“ ‘While fraud cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when the misrepresentation is made, (the promisor) knows that the future event will not take place.’ [Cit.] ‘A promise made without a present intent to perform is a misrepresentation of a material fact and is sufficient to support a cause of action for fraud.’ [Cit.]” Rogers v. deMonteguin, 193 Ga. App. 480, 481 (1) (388 SE2d 10) (1989). The jury was authorized to consider evidence of the defendants’ conduct following the agreement in assessing whether or not the defendants had a present intent to perform at the time of contract execution. Id. See also Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 95 (4) (406 SE2d 502) (1991).

Decided September 8, 1992

Reconsideration denied September 29, 1992

Miller, Simpson & Tatum, John M. Tatum, James R. Williamson III, William E. Dillard III, for appellants.

Duffy & Feemster, Dwight T. Feemster, Jo Beth Gosdeck, for appellee.

Dement presented evidence from which the jury could have concluded that defendants lacked the present intent to perform, including but not limited to, that the Gunnins had made no serious attempt to expand or relocate the business and that they had utilized a substantial portion of Dement’s $100,000 investment for their own personal use. In fact, the Gunnins maintained that the stock sold to Dement was “personal” stock, entitling them to personally retain and use the stock sale proceeds.

In any event, “[t]he question of intent [to deceive or not to perform] is in all cases the dominion of the factfinder; on appeal, the presumption lies in favor of the verdict where there is any evidence to support it. [Cit.]” Goodlett v. Ray Label Corp., 171 Ga. App. 377, 379 (1) (319 SE2d 533) (1984) (physical precedent), but later cited in Community Fed. &c. Assn. v. Foster Developers, 179 Ga. App. 861, 864 (1) (348 SE2d 326) (1986).

The trial court did not err in refusing to direct a verdict in favor of the appellant defendants on the bases urged.

Judgment affirmed.

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


text:
    A92A1656.
    SAVAGE v. THOMASTON-UPSON COUNTY OFFICE BUILDING AUTHORITY.
    (422 SE2d 896)
   Beasley, Judge.

On January 18, 1991, the Thomaston-Upson County Office Building Authority filed a complaint against Savage and others under the Special Master Act, OCGA § 22-2-100 et seq., to condemn avigation easements necessary for the construction of an airport.

On January 19, the superior court entered an order appointing a special master to hear evidence on Friday, February 1, at 8:00 a.m., as to the fair market value of the property rights sought to be condemned, taking into consideration the consequential damages and consequential benefits to any property not taken. The special master was ordered to make and file with the clerk of the court within three days after the date of the hearing an award and report of his findings, as required by OCGA § 22-2-110 (a).

On February 6, the special master signed an award to the condemnees of $3,188 as the actual market value of the easements over the subject tracts, plus $6,196.47 in consequential damages to their remaining property or interest, with a finding of no consequential benefits. The special master denied the condemnees’ motion to dismiss the condemnation petition on grounds that the Office Building Authority lacks the power and authority to condemn private property for airport purposes.

The special master did not, however, file his award with the superior court by Wednesday, February 6, when the three-day period ended. As a result, counsel for the condemnor telephoned the special master, who signed the award and mailed it to counsel on February 6. Counsel received the award on Saturday, February 9, and filed it on Monday, February 11. On this same day, the condemnees filed a notice of appeal to superior court, a motion to dismiss for failure of the special master to file the award within three days after the hearing, and exceptions to the award.

On February 20, the condemnees filed an amendment to their motion to dismiss and exceptions to the award by adding the ground that the award did not set forth the date and time of the hearing before the special master, as required by OCGA § 22-2-110 (c). On February 21, the special master filed a nunc pro tunc amendment to his award with the permission of the court stating the date and time of the hearing.

The superior court held a hearing on the condemnees’ exceptions to the award and motion to dismiss on February 26. The court denied the motion to dismiss at the hearing and entered an order the next day denying the remaining exceptions, as well as an application for a certificate of immediate review. On February 28, the superior court made the award of the special master its judgment. A jury trial on the value of the property or interest taken and the amount of damage done resulted in a jury award of $10,000 and a judgment of $10,048.16 including prejudgment interest to Savage. The prejudgment interest puts the case in a direct, rather than a discretionary, appeal posture. See OCGA § 5-6-35 (a) (6); Batchelor v. ISFA Corp., 191 Ga. App. 238 (382 SE2d 434) (1989).

1. Savage contends without success that this proceeding has been voided and nullified because the special master’s award was not filed with the clerk of the superior court within three days after the date of the hearing, as required by OCGA § 22-2-110 (a).

The exercise by the condemnor of its delegated power of eminent domain must be in strict conformity with the statute conferring the authority. Wrege v. Cobb County, 186 Ga. App. 512, 513 (1) (367 SE2d 817) (1988). It was held in Landers v. Ga. Pub. Svc. Comm., 217 Ga. 804, 809 (4) (125 SE2d 495) (1962), that the failure of appraisers (now assessors) to file and record their award within ten days after the award was made, as required by Ga. Code Ann. § 36-508 (OCGA § 22-2-65), did not render the proceeding invalid. There is no provision in the statute that a failure of this nature would have such a drastic result. The requirement of speedy disposition to protect the property owner is directory rather than jurisdictional.

2. Savage asserts that the special master’s award was defective in failing to set forth the date and time of the hearing, voiding the award and rendering the proceeding invalid.

The special master supplied this information by a nunc pro tunc amendment of the award prior to the superior court’s clearly authorized entry of judgment on the award as so amended. See Moore v. Moore, 229 Ga. 600, 601 (2) (193 SE2d 608) (1972); Savannah Iron & Fence Corp. v. Mitchell, 168 Ga. App. 252, 253 (1) (308 SE2d 569) (1983).

3. Finally, Savage urges that the Office Building Authority lacks the power to condemn private property for airport purposes.

Although, of course, an airport is not an office building, the state constitutional amendment through which the Authority was created granted powers broad enough to include the condemnation of easements for airport purposes.

The Thomaston Office Building Authority was created pursuant to Ga. L. 1964, Extra Session, p. 338 et seq. In 1967, its name was changed to Thomaston-Upson County Office Building Authority. Ga. L. 1967, p. 3139 et seq.

Paragraph B of the 1964 amendment, id. at 340-341, states that the Authority was created “ ‘for the purpose of acquiring, constructing, equipping, maintaining and operating . . . projects embracing buildings and facilities for use by the City of Thomaston, Georgia, for its governmental, proprietary and administrative functions and for the use by such other agencies, authorities, departments and political subdivisions of the State of Georgia or the government of the United States as may contract with the Authority for the use of such facilities.’ ”

Paragraph D (3), id. at 342-343, states that “ ‘[t]he word- “project” shall be deemed to mean and include one or a combination of two or more of the following: buildings and facilities intended for use as courthouse, jail, police station, fire station, administrative offices and other offices and related uses, and all buildings, structures, electric, gas, steam and water utilities and facilities of every kind and character deemed by the Authority necessary or convenient for the efficient operation of any department, board, office, commission or agency of the City of Thomaston in the performance of its governmental, proprietary and administrative functions, or of such buildings and facilities intended for use by any division, department, institution, agency or political subdivision of the State of Georgia, or the government of the United States.’ ”

Decided September 8, 1992

Reconsideration denied September 29, 1992

Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, for appellant.

Adams, Barfield, Dunaway & Hankinson, Ronald Barfield, for appellee.

Paragraph E (3), id. at 343-344, states that “ ‘[t]he Authority shall have the powers: To acquire in its own name by purchase ... or by condemnation . . . real property or rights of easements therein or franchises necessary or convenient for its corporate purposes. . . .’”

In pertinent part, the preamble to the amendment, id. at 340, states that its purposes are “to provide the right and power for the Authority to condemn property of every kind and character . . . [and] ... to provide that this amendment shall be liberally construed.”

Both the City of Thomaston, through its council, and Upson County, through its commission, passed resolutions requesting the Thomaston-Upson County Airport Authority (which was created by Ga. L. 1988, p. 4225 et seq.), and/or the Thomaston-Upson County Office Building Authority, to acquire by purchase or through the exercise of the power of eminent domain certain property and easements required for the development of an airport.

Both counties and municipalities are authorized to condemn private property needed for an airport. OCGA §§ 6-3-20; 6-3-21; 6-3-22. The delegation of that authority by the City of Thomaston and Up-son County to the Office Building Authority was authorized here.

Judgment affirmed.

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