text:
    A91A2011.
    DOVER REALTY, INC. et al. v. BUTTS COUNTY BOARD OF TAX ASSESSORS.
    (415 SE2d 666)
   Birdsong, Presiding Judge.

This appeal arises from a de novo appeal to the superior court from an ad valorem tax assessment for the year 1990. Motion by appellee to dismiss appeal was granted; appellant’s motion to enforce settlement was denied. Held:

1. Factual assertions in appellate briefs and in briefs in the trial record and not otherwise supported by evidence of record cannot be considered on appellate review. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223).

2. Appellants assert the trial court erred in denying their motion to enforce settlement. We disagree. The trial court, in support of its order, concluded “that the parties to this litigation did not enter into a settlement agreement resolving the issues raised in the instant tax appeal.” Appellants argue that a certain letter contained in the trial record, signed by attorney Bartles and dated September 14, 1989, evidences the settlement agreement. The scope of this letter, corroborated in part by other evidence of record, reveals on its face that both the conversation, as therein memorialized, and the said “rectified” matter, referred to the “1989 Tax Assessment” rather than the tax assessment in 1990. We recognize that a legally effective compromise of a dispute is binding on the parties, that the law favors compromises, and that a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract. Warren v. Jenkins, 190 Ga. App. 442, 443 (1) (379 SE2d 19). Nevertheless, it is in those instances “ ‘ “[w]here parties to litigation have entered into a definite, certain, and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation.” ’ ” Id.; compare Kapiloff v. Askin Stores, 202 Ga. 292, 296 (42 SE2d 724). The record in this case does not establish the existence of a definite, certain, and unambiguous settlement agreement as to the matters at issue in this case. Appellants have the duty of showing error affirmatively by the record and this duty is not discharged merely by unsupported recitations in their brief. Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709); Jenkins v. Bd. of Zoning &c., 122 Ga. App. 412 (2) (177 SE2d 204).

3. Appellants claim the trial court erred in granting appellee’s motion to dismiss on the grounds appellants were not the real parties in interest, and therefore erred in concluding it lacked jurisdiction to consider the de novo appeal.

OCGA § 9-11-17 (a) provides in pertinent part that “[e]very action shall be prosecuted in the name of the real party in interest. . . . No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. . . .”

Appellant companies made admissions in judicio in their briefs before the trial court and this court (Brownlow v. City of Calhoun, 198 Ga. App. 710, 711 (402 SE2d 788); Time Ins. Co. v. Lamar, 195 Ga. App. 452 (2) (393 SE2d 734)) that subject real estate was owned by them on January 1, 1990, was conveyed thereafter to 3 Star Ltd., that the instant tax appeal involves 3 Star Ltd., and that 3 Star Ltd. technically is another corporation.

As appellants do not affirmatively argue or provide any citation of authority in their appellate brief in support of a contention that merely because they owned the property on January 1, 1990, they are the “taxpayer,” within the meaning of OCGA § 48-5-311, legally entitled to file an appeal regarding the 1990 ad valorem taxes here at issue and are thus the real parties in interest, this specific issue is abandoned. Court of Appeals Rule 15 (c) (2).

Appellants assert inter alia that this instant tax appeal in fact involves 3 Star Ltd., and that a misnomer occurred either on the trial court calendar, or when the county attorney filed an entry of appearance and filed his first interrogatories. Although a mere misnomer of a party in the pleadings is a defect which may be waived where the misnamed party is in fact the legally cognizable proper party in interest (Strauss Fuchs Org. v. LaFitte Invest., 177 Ga. App. 891, 894 (2) (341 SE2d 873)), the record in this case does not affirmatively establish that mere misnomer occurred. The trial judge found that the tax appeal was not timely filed by the true owner of the subject property. The record reflects that purported appeal of various tax assessments was filed on May 8, 1990, on Dover Realty Company letterhead stationery and signed by “Ben H. Dover, Jr. also agent for the following appeals.” And the purported notice of appeal to the superior court of the property assessment on this particular parcel of property, dated September 4, 1990, reflects the appeal was initiated by the presidents, acting in their corporate rather than their personal capacities, of each of the three appellant entities. Moreover, the affidavit of Ben H. Dover, Jr., reveals that neither he, Jim Robertson, nor Donald Teel is the sole shareholder of their respective appellant companies, but they are only majority shareholders thereof. Compare Strauss, supra, where the president was the sole stockholder of the corporation. Assuming the three men were in fact the sole owners of 3 Star Ltd., it still is established by the record and the admissions in judicio of appellants that 3 Star is a separate legal entity from that of the three appellant companies. Under the facts herein presented, the appellant companies cannot be said to be the real parties in interest within the meaning of OCGA § 9-11-17 (a).

Appellants, however, contend that OCGA § 9-11-17 (a) provides a , reasonable time, “after objection,” to substitute parties or to take the other corrective action therein authorized to avoid dismissal of this suit. We find that the motion to dismiss because appellants are not the real parties in interest, filed by appellee on April 4, 1991, constituted an “objection” within the meaning of OCGA § 9-11-17 (a). The order dismissing the suit was not signed until June 27, 1991. Notwithstanding the lapse of a reasonable time between the motion to dismiss and the order granting the motion, the record does not reflect that appellants timely initiated any corrective action, as authorized by OCGA § 9-11-17 (a), to preclude the dismissal of the suit. Rather, it was appellant companies’ position, as reflected in their motion in opposition to appellee’s motion to dismiss, that they were in fact the real parties in interest and have been since the inception of the case. Accordingly, we find a reasonable time did elapse, after objection, and before the motion to dismiss was granted. Although appellants also argue the court should have allowed them to ratify their existence or to allow a substitution of the parties, the record does not reflect that such relief was requested by appellants before the motion to dismiss was granted. Appellants have failed to demonstrate error affirmatively by the record. Armech, supra at 830 (1).

Additionally, assuming misnomer occurred in the docketing and prosecution of this appeal, the procedures used in initiating this case and in appealing it to the superior court aided such misnomer. Appellants cannot complain of a judgment, order, or ruling their own procedure or conduct aided in causing. West v. Nodvin, 196 Ga. App. 825, 829 (3 e) (397 SE2d 567).

Decided January 30, 1992

Reconsideration denied February 12, 1992.

William A. Fears, for appellants.

George, Trammell & Bartles, William P. Bartles, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A2027. A91A2028.
    SUNAMERICA FINANCIAL, INC. et al. v. 260 PEACHTREE STREET, INC. 260 PEACHTREE STREET, INC. v. BROAD, INC.
    (415 SE2d 677)
   Birdsong, Presiding Judge.

Broad, Inc. (Broad) is a multi-faceted financial services corporation; SunAmerica Corporation (SAC) is a wholly-owned subsidiary of Broad; SunAmerica Financial, Inc. (SAF) is a wholly-owned subsidiary of SAC. SunAmerica Financial, Inc. (SAF), formerly Sun Insurance Services, Inc. (SIS), and SunAmerica Corporation (SAC), formerly Sun Life Group of America, Inc. (SLGA), appeal the order of the superior court granting summary judgment to appellee/plaintiff 260 Peachtree Street, Inc. (Peachtree) as to Counts 1 and 3 of its first amended complaint, which sought payment of rent from SAF under the lease and payment from SAC under the guaranty of the lease, respectively, and on Count 1 of appellants/defendants’ counterclaim pertaining to a claim of constructive eviction. Cross-appellant/appellee Peachtree has appealed the order of the superior court granting defendant Broad’s motion to dismiss Peachtree’s complaint of tortious interference against Broad. Broad has not filed a cross-appeal in this matter.

Appellee/cross-appellant Peachtree is the successor in interest to CSG Associates as lessor under the lease at issue herein. Further, Coastal States, as lessee, assigned all its right, title and interest in the lease to appellant SAF, which at that time was known as SIS. Commensurate therewith SLGA, subsequently SAC, executed an unconditional guaranty of payment and lease obligation performance on behalf of its subsidiary SIS. Additional facts concerning subject lease are contained in Sun Ins. Svcs. v. 260 Peachtree Street, 192 Ga. App. 482 (385 SE2d 127).

Peachtree asserts that SAF is in breach of the lease by having quit the premises and having refused to pay certain rents, and that SAC is in breach of its guarantee of SAF’s lease obligations. Peach-tree in its cross-appeal also argues that its claim against Broad for tortious interference did not fail to assert a claim on which relief could be granted. SAF and SAC assert inter alia that no rents were due and owing as lessee SAF was constructively evicted from the premises; it being contended that Peachtree was in violation of the lease and/or the holding of this court in Sun Ins. Svcs., supra, by refusing to approve renovation for purposes of subleasing and by refusing to remove asbestos from the rented floors to allow safe renovation thereby depriving SAF of the beneficial use and enjoyment of the premises for a purpose for which it was rented.

The lease was to expire in 1996. In April 1989, lessee SAF advised its employees of its decision to move SAF operations to Los Angeles, California, due to a change in corporate business goals. In April 1990, the senior vice president and senior legal adviser of Broad, who also served as a Director of SAF, informed lessor Peachtree of SAF’s intent to relocate and to vacate all of its space in the rented premises by October 1, 1990. SAF completed its move from the premises by October or November 1990, and continued to pay rent; also it continued its attempt to sublease the premises.

Attempts at subleasing were unsuccessful, and the record contains some evidence which indicates that at least one Atlanta commercial real estate broker declined to represent SAF in its subleasing efforts because inter alia there exists “virtually no chance” of subleasing a commercial premises containing asbestos when the lessor refuses to remove the same. An agent of that broker concluded that “the uncertainty revolving around the asbestos abatement or encapsulation ensures that any leasing efforts will end in failure.”

Apparently SAF recognized the problem of attempting to sublease the premises, which had asbestos applied directly to structural supports and decking, as it attempted to obtain Peachtree’s consent to abate all the asbestos from all 12-% floors as those floors were being vacated. Thus, from approximately mid-April 1990 to mid-July 1990, meetings between SAF and Peachtree were held, and attorneys for SAF and Peachtree corresponded regarding this matter. SAF ultimately requested permission to renovate each of the floors as they were vacated so as to gut each floor and return it to a completely open space, as it had been advised by certain agents that this would facilitate space subleasing; SAF relying inter alia on Sun Ins. Svcs., supra, in essence asserted that Peachtree was required to abate the asbestos in all requested renovation areas so as to render renovation safe.

After Peachtree refused to approve renovation and refused to consider the question of asbestos abatement without an existing subtenant who presented a formal renovation plan of its own, SAF reduced a prior oral guarantee proposal to writing. In the written guarantee proposal, SAF gave assurances “(1) that any improvements by any subtenant would equal or exceed the quality of the original condition of the premises; or (2) in the event Sun was unable to sublease the space, it would improve the space to a condition equal to the original condition of the leased space prior to the termination of Sun’s lease. Further ... if the landlord is unwilling to accept Sun’s assurances that it will meet the standard provided by the lease, Sun is prepared to give a bond, letter of credit, or some similar financial assurance in support of this obligation to the landlord as a condition of the landlord approving the plans. . . .”

On November 20, 1990, Peachtree sent invoices for rent owed as of December 1, 1990. On November 30, 1990, Peachtree received a letter signed by Mr. Weintrob, who is senior vice-president and senior legal advisor of Broad, and a director of SAF, stating that “as of December 1, 1990, we are withholding our rental payments under the lease because of lessor’s [Peachtree’s] failure to fulfill its obligations under the lease.” SAF declined to pay ány further rent. Held:

Case No. A91A2027

In Sun Ins. Svcs., supra at 483 (2), this court held that “the lease in the present case does carry an implied requirement that the landlord not refuse consent to changes that are of equal or greater quality than the original condition of the premises”; we also held that removal of asbestos “will certainly enhance the value of [Peachtree’s] building.” (Emphasis supplied.) Id. at 483. We are satisfied that SAF’s renovation proposal substantially complied with the terms of the lease, which requires all repairs, additions, or improvements to be equal in quality to the original condition of the premises, by tendering a written offer of guaranty, bond, letter of credit, or similar financial assurance. Moreover, the lease clearly provides a right to the lessee to sublease without the lessor’s consent, and it appears to be within the contemplation of the parties that various forms of renovation might have to be undertaken by the lessee to enable it to exercise its subleasing right. In this regard, we note that the lease provided that lessee shall make no “repairs, additions, or improvements” without first obtaining lessor’s written consent. These terms appear to be used in their usual and common signification (see, e.g., OCGA § 13-2-2). The common definition of “repair” is very broad in scope and includes: “to remedy; make good; make up for; to repair damage; to repair a deficiency ... to make amends for; compensate; to repair a wrong done.” Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989 ed.) Consequently, we concluded in Sun Ins. Svcs., supra at 483, that this lease had an implied requirement not to refuse to consent to certain “changes. . . .” Thus, the proposed renovation by SAF, although so extensive as to require a virtual gutting of all floors, was consistent with SAF’s attempt to exercise its right of subleasing, and we find the right of subleasing was one of the substantial and distinct purposes for which the lease was executed. Accordingly, we conclude Peachtree’s refusal to consent to the proposed renovation was unreasonable and in violation of the above implied lease requirement. Sun Ins. Svcs., supra.

Additionally, it was tacitly held in Sun Ins. Svcs., supra, that the building is not in a safe condition for purposes of allowing SAF to make renovations as contemplated in the lease, unless the asbestos (at least in the area to be renovated) is removed. Id. at 483. As application for certiorari was denied in Sun Ins. Svcs., supra, it is binding as precedent. Ga. Const. 1983, Art. VI, Sec. V, Par. III. We find the lessee’s proposed renovations, initiated in support of lessee’s exercise of its right of sublease, were not beyond the broad type of repairs, additions, or improvements contemplated in the lease, which were limited as to physical nature only by the requirement of the lease that any changes ultimately be of equal or greater quality than the original condition of the premises.

2. There remains, however, the issue of whether Peachtree’s refusal to remove asbestos from the premises constitutes a constructive eviction thereby relieving SAF of its obligation to pay rent. The trial court concluded that a constructive eviction had not occurred in this case.

(a) On summary judgment, movant has the burden of showing the nonexistence of any material fact and that he is entitled to a judgment as a matter of law. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. See, e.g., Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). Moreover, movant has this burden even as to issues upon which the opposing party would have the trial burden. D. H. Overmyer Co. v. Joe Summers &c. Co., 120 Ga. App. 188, 189 (169 SE2d 821).

(b) In a classic constructive eviction situation, concerning commercial leases, the landlord as a consequence of his failure to keep the rented premises repaired, allows the premises to become an unfit place for the tenant, who is physically occupying the premises, to carry on the business (or purpose) for which the premises was rented, and the premises cannot be restored to a fit condition by ordinary repairs which can be made without unreasonable interruption of the tenant’s business. Overstreet v. Rhodes, 212 Ga. 521, 523 (93 SE2d 715); Piano &c. Center v. Southland &c., 139 Ga. App. 480 (2) (228 SE2d 615). However, constructive eviction can occur under circumstances other than when the premises have been allowed to deteriorate to the point of unfitness. See generally Hathaway v. Gorfine, 134 Ga. App. 748 (216 SE2d 338) (landlord’s failure to provide a tenantable premises for defendant to carry out his business apparently gave tenant just cause to vacate the shopping center thereby relinquishing his lease rights); Magnolia Warehouses v. Morton &c. Co., 102 Ga. App. 697, 698 (2) (117 SE2d 552) (failure of landlord to begin improvement alterations timely to elevator locking system which was essential to use of premises and threatened padlocking thereof constituted constructive eviction); see Roberson v. Allen, 7 Ga. App. 142 (66 SE 542) (landlord’s conduct in taking away a part of the rented premises and interfering with tenant’s use and enjoyment of a part of the same amounted to a constructive eviction). Of course, it must be factually established that the tenants use and enjoyment of the premises is not merely rendered “uncomfortable.” See Thirsk v. Coldwell Banker &c., 172 Ga. App. 236, 237 (322 SE2d 544); cf. Alston v. Ga. Credit Counsel, 140 Ga. App. 784, 785 (1) (232 SE2d 134).

The trial court, after citing the test for constructive eviction in classic commercial lease situations involving premise deterioration, held inter alia that “[traditionally, in order for constructive eviction to be a defense to a suit for rent, the landlord’s actions must in effect force the tenant to abandon the premises because it can no longer be used for the purposes for which it was rented.” In this regard, the trial court found that SAF moved out of the premises due to its own administrative consolidation, and concluded that after SAF vacated the premises there was no tenant to evict.

We have held that “[t]o constitute an eviction which will operate as a suspension of rent, there must be eith.er an actual expulsion of the tenant, or some act of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises.” (Second emphasis supplied.) Potts-Thompson &c. Co. v. Capital City &c. Co., 137 Ga. 648 (2) (74 SE 279); Rains Investment Co. v. George Roe &c. Assoc., 140 Ga. App. 566, 567 (231 SE2d 460). Normally, the questions of whether an act is permanent and grave in character or whether the act was done with the requisite intent are questions of fact for the jury. (An act may be considered grave in character if it renders the premises untenantable or unfit for the use and benefit of the tenant in accomplishing one or more of the substantial purposes of the lease (in this instance either premises rental or sublease by SAF).) “There is clearly an eviction if the landlord forcibly dispossesses the tenant, or if the lessor prevents the tenant from re-entering during an absence. But direct deprivation is not required for an eviction. Any act [of a grave and permanent character] which so affects the tenant’s enjoyment of the premises that it results in his relinquishment of them may amount to a constructive eviction.” (Emphasis supplied.) 19 EGL (1981 Rev.), Landlord & Tenant, § 41. Moreover, the lease does not contain any covenant or condition requiring SAF to physically occupy the rented premises. Thus, if SAF’s act of moving from the premises was, in fact, accomplished as a matter of administrative consolidation for business purposes, such act would not per se constitute a breach or repudiation of the lease, or a waiver of any rights or obligations thereunder. Compare Jaffe-Spindler Co. v. Genesco, Inc., 747 F2d 253, 255-256 (USCA 4th Cir.). And, if SAF continued to pay rent after it moved out of the premises and did not repudiate the lease agreement, it would remain a legitimate tenant and would remain able to exercise its right of subleasing.

There exists evidence in the record that throughout the period during which SAF was moving from the premises it continued to pay rent in accordance with the terms of the lease; and, Peachtree’s claims notwithstanding, there exists some evidence, either directly establishing or from which it can reasonably be inferred, that SAF attempted to sublet the premises in accordance with its rights under the lease, but was unsuccessful in its attempt due (in substantial part) to the presence of asbestos. There also exists some evidence that SAF elected not to pay rent only after Peachtree had declined to consent to the proposed renovations and had declined to abate the asbestos in the proposed renovation areas. Thus, a genuine issue of fact exists whether SAF ultimately relinquished its right of use and enjoyment of the premises (which under this lease also includes the right of use and enjoyment of the premises for purposes of subleasing) as a result of the conduct of Peachtree, or whether SAF ultimately relinquished its lease rights as a result of its own business decisions.

The trial court concluded inter alia that the duty to remove asbestos would arise only when remodeling was started, because it was only when remodeling was started that the asbestos presented a health problem; and that Peachtree’s refusal to abate the asbestos until SAF found a subtenant who insists on remodeling does not deprive SAF of the beneficial use and enjoyment of the premises for the purpose for which it was rented, that is, as office space. In view of our holding in Division 1 above, we find that the unreasonable refusal of Peachtree to consent to the renovation and its inextricably connected refusal to abate the asbestos until SAF found a subtenant who insisted on remodeling, did not shield Peachtree from acquiring a legal obligation to remove the offending substance. This obligation arose immediately upon its unreasonable refusal to consent. To allow Peachtree to refuse to consent to renovation in violation of the “implied requirements” of the lease and avoid acquiring an obligation to remove asbestos, merely because the unreasonably prohibited remodeling had not in fact commenced, would also enable Peachtree to circumvent the precedent and intent of our holding in Sun Ins. Svcs., supra. We further find that by its unreasonable refusal Peachtree did deprive SAF of the beneficial use and benefit of the premises for the purpose of subleasing. Examining the lease on its four corners (see generally OCGA § 13-2-3), we find that in addition to the right of renting the subject commercial premises, the right of subleasing such premises also was one of the significant purposes for which the lease was entered by SAF. However, whether Peachtree acted with the intention to deprive SAF of its right of use and enjoyment of the premises for purposes of subleasing, within the meaning of Potts-Thompson &c. Co., supra, creates a genuine issue of material fact, as does the question of whether the landlord’s conduct merely rendered the tenant’s use of the premises (for purposes of subleasing) “uncomfortable” rather than unfit for use and enjoyment for such purpose.

None of appellee’s citations and arguments is found persuasive as to the disposition of this case, and Alston v. Ga. Credit Corp., supra, which is factually distinguishable, is found not to be controlling.

The trial court erred in granting Peachtree’s motion for summary judgment as to Counts 1 and 3 of the complaint, as amended, and as to Count 1 of defendants’ counterclaim.

Case No. A91A2028

3. Cross-appellant Peachtree asserts the trial court erred in granting Broad’s motion to dismiss for failure to state a claim on the theory that a parent corporation cannot tortiously interfere with a contract between its subsidiary’s subsidiary and another. The theory of cross-appellant’s tortious interference claim against Broad was that the latter tortiously interfered with the rental contract when Broad halted the rental payments asserted to be due and owing from SAF to Peachtree.

(a) Initially we observe that the trial court ruled it had personal jurisdiction over Broad under both the Georgia Long Arm Statute and the “minimum contacts” test. Broad has attempted in its crossappellee’s brief to argue the validity of this ruling. This issue, however, is not before this court on appellate review, as Broad filed no notice of appeal in this case and did not initiate a cross-appeal in which this matter was properly and timely enumerated as error.

(b) The trial court found as fact that Broad is the sole shareholder and wholly owns SAC, and that in turn SAC is the sole shareholder and wholly owns SAF. This finding is supported and not controverted by evidence of record. Further, uncontroverted evidence of record reveals that Mr. Weintrob, senior vice-president and senior legal officer of Broad and also a director of SAF, was the person who gave the instructions to both the controller of Broad and to the controller of various Broad facilities that SAF was no longer to pay rent to Peachtree. The court expressly found that notwithstanding the affidavit of Weintrob, showing that Broad, SAC, and SAF are separate legal entities with separate financial records and bank accounts and with their own boards of directors, “the reality is that Broad controls the movements of the two subsidiaries by controlling 100% of the stock in [SAC] which owns 100% of the stock in [SAF]. . . . [T]he parent may assert full control any moment the subsidiary fails to act in the parent’s best interest.” We are satisfied that the mere fact Broad may be a separate legal entity would not prevent it from having the power to control its wholly-owned subsidiary and the latter’s wholly-owned subsidiary. Interestingly, the record established that Mr. Saltzman who is Executive Vice-President of Broad also is the President of SAC and a member of SAC’s board of directors, and a member of the board of directors of SAF; however, Mr. Saltzman could not recall the other officers of SAC, although he could recall readily the senior officers and directors of Broad. Saltzman further testified in his deposition that there are no formal meetings of the boards of directors of SAF and SAC.

The trial court found persuasive, by way of analogy, Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752 (104 SC 2731, 81 LE2d 628) (a Sherman Antitrust Act case), and concluded “[a] parent and its wholly-owned subsidiary have ‘a complete unity of interest.’ Their objectives and goals are the same, having been determined by one corporate entity, the parent. Therefore ... a parent is not intruding into the affairs of others, but into its own affairs.” Accordingly, the trial court held “a parent cannot tortiously interfere with a wholly-owned subsidiary as the parent and the subsidiary are essentially one. ...”

If, as here, on motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in OCGA § 9-11-56. OCGA § 9-11-12 (b).

In order to constitute tortious interference with contract, “a third person must have maliciously and without lawful justification induced the breach of an existing contract or caused the termination of a recognized contractual relation.” (Emphasis supplied.) 27 EGL, Torts, § 9. It appears to be a case of first impression whether in Georgia the corporate parent of a wholly-owned subsidiary or of the latter’s wholly-owned subsidiaries cannot be deemed, as a matter of law, a third party capable of tortiously interfering with the contracts of said subsidiaries. As a general principle of corporate law, “great caution should be exercised in disregarding or going behind the corporate entity, it may be done when the subsidiary is shown to be the alter ego or business conduit of the parent. However, it must appear that the subsidiary is a mere instrumentality of the parent. . . .” Florida Shade &c. v. Duncan, 150 Ga. App. 34 (256 SE2d 644). Nevertheless, in Georgia, “[t]ortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract.” Jet Air v. Nat. Union Fire Ins. Co., 189 Ga. App. 399, 403 (4) (375 SE2d 873). It has been held that a parent corporation, acting through its officers, directors, or agents normally will not stand in the relationship of a third-party stranger to the contract between its subsidiaries and another for purposes of tortious interference of contract. Compare Morast v. Lance, 631 FSupp. 474, 482 (11) (USDC N.D. Ga.); see also Nexus Svcs. v. Manning Tronics, 201 Ga. App. 255 (410 SE2d 810); and Jet Air, supra. Nevertheless, while the interests of a parent corporation generally will be consistent with that of a subsidiary, circumstances can arise under which these interests may differ. Accordingly, we question whether a bright-line test should be established to the effect that a parent corporation can never be held liable for tortious interference with a wholly-owned subsidiary’s contract with another party. Rather, the better rule appears to be that of giving a qualified privilege to the parent corporation, permitting it to interfere with a wholly-owned subsidiary’s, or the latter’s wholly-owned subsidiary’s, contractual relations with another party when the contract threatens a present economic interest of said subsidiary, absent clear evidence that the parent employed wrongful means or acted with improper purpose. T. P. Leasing Corp. v. Baker Leasing Corp., 732 SW2d 480, 483 (3) (SC Ark.), citing Phil Crowley Steel Corp. v. Sharon Steel Corp., 782 F2d 781 (8th Cir.); see generally Restatement of Torts 2d, §§ 766-769. Generally the issues of whether the parent employed wrongful means or acted with improper purpose would present questions of fact for the jury to decide, but the case may be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion. See generally Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569 (1) (314 SE2d 241). In this case, we find genuine issues of material fact exist whether Broad or its officers acted in this matter on behalf of Broad or merely as agents of SAF, whether Broad employed a wrongful or legitimate means, and whether Broad acted with improper purpose to terminate the lease. Accordingly, we find the trial court erred in dismissing as premature the tortious interference claim.

Judgments reversed.

Pope and Cooper, JJ., concur.

Decided January 31, 1991

Reconsideration denied February 12, 1992

Arnall, Golden & Gregory, William H. Kitchens, Robert L. Roth-man, B. Ida Patterson, for SunAmerica and Broad.

Smith, Gambrell & Russell, Rex M. Lamb III, Matthew S. Coles, David M. Brown, for 260 Peachtree.


author: Cooper, Judge.

text:
    A91A1684.
    TURNER v. THE STATE.
    (415 SE2d 524)
   Cooper, Judge.

Appellant was convicted by a jury of child molestation and appeals from the denial of his motion for new trial.

1. Appellant first contends that the trial court erred in denying his motion for a continuance to enable him to develop an alibi defense. The indictment issued against appellant charged that the crime occurred on June 3, 1988. The evidence elicited during the presentation of the State’s case failed to establish a specific date for the crime but showed that the crime occurred during a period of time, from approximately June 1, 1988, to June 12, 1988. After the State rested its case, the prosecutor, defense counsel and the court agreed that the State could submit a request to charge to the effect that the specific date on the indictment was not a material allegation and that if the jury found the crime occurred at any time within the statute of limitation, they could convict. The defense then presented its case, and did not, at any time, raise the issue of an alibi defense. After the defense rested, a charge conference ensued during which defense counsel objected to the charge submitted by the State regarding the date of the offense. The defense argued that the indictment charged a specific date, not a time period; that appellant did not have an alibi defense for the date charged; but that appellant may have alibis for other dates within the statute of limitation. Appellant requested a continuance in order to prepare an alibi defense applicable to other periods within the statute of limitation if the State’s request to charge was given to the jury. Appellant also requested to make an offer of proof on the alibi defense. The court denied both requests. However, at the hearing on appellant’s motion for new trial, the court did allow an offer of proof to be made, and appellant’s trial counsel testified that she could have produced evidence that appellant was out of town around June 8 or 9, 1988. Counsel stated that she did not originally subpoena the alibi witness because there was no alibi for the exact date charged in the indictment, June 3,1988. Further, counsel acknowledged that it became clear during the State’s case that the date of the offense was not specific, yet she could not recall what, if any, efforts she made to secure the alibi witness during the trial.

It is well established that “ ‘[w]here the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations. [Cit.] An exception exists where the evidence of the state proving that the offense was committed at a time substantially different from that alleged in the indictment surprises and prejudices the defense in that it deprives the defendant of a defense of alibi or otherwise denies him his right to a fair trial. [Cit.]’ ” (Punctuation and citations omitted.) Henson v. State, 182 Ga. App. 617 (3) (356 SE2d 556) (1987). In Henson, supra, the defendant’s ability to present a defense was not materially affected when the indictment charged the date of child molestation as July 24, 1985, and the evidence showed that acts of molestation occurred in July 1985. Appellant relies on Carmichael v. State, 228 Ga. 834 (188 SE2d 495) (1972), in which the indictment alleged the commission of an armed robbery on February 1, 1970, and the evidence showed that the robbery occurred before midnight on January 31, 1970. The Carmichael court, after acknowledging that the evidence of guilt may extend to any day prior to the indictment and within the statute of limitation, determined that the appellant was not deprived of notice of the charge against him by reason of the discrepancy between the date charged and the evidence. The court stated, “[n]o alibi evidence was offered, nor was any continuance requested on the ground of surprise that the evidence showed the commission of the crime on a date different from that shown in the indictment, and that additional time would be needed to procure alibi testimony to account for the appellant’s whereabouts on that date.” Id. at 837-838. Appellant argues that the trial court erred because appellant did request a continuance and an offer of proof as suggested by the Carmichael court. However, the Carmichael language does not dictate a finding of error in the case sub judice. Even though the lack of specificity regarding the date of the offense was clearly exposed early in the trial, during the presentation of the State’s case, no motion for a continuance was made by appellant at that time, nor did appellant indicate any surprise on the issue of the date of the offense. In fact, the evidence adduced at trial did not show a substantial discrepancy in timing but consistently pointed to a one week to ten day span during which the molestation occurred. After the State’s case, the prosecution raised the content of the proposed jury charge on this issue and, again, no motions or claims of surprise were made by the defense. Instead, the defense agreed to the concept of such a jury charge. The appellant then proceeded to present his entire case without indicating surprise and without raising any issue of alibi. Even though appellant claims that an alibi did not exist for the date charged, he failed to raise the issue at trial with respect to the dates surrrounding the date charged even though all the evidence related to dates within a short time span. Only at the charge conference did appellant assert his position with respect to this issue. We cannot discern a basis for surprise, and we conclude that appellant was not deprived of an alibi defense or a fair trial. The trial court did not err in denying appellant’s motion for a continuance.

2. Appellant next contends that the trial court erred in admitting evidence of a prior conviction of appellant for aggravated assault. At trial, the State called the older sister of the victim as a witness, who testified on direct examination that the victim told her that appellant molested the victim. On cross-examination, the defense counsel asked the witness if she liked the appellant, to which the witness responded negatively. Defense counsel then asked the witness if appellant made her clean up the yard and help him work on the house and if the witness did not get along with appellant because of these demands. The witness responded that appellant did make her do these things but that they got along over these tasks. On redirect, the prosecution asked the witness why she did not like appellant to which she responded that he abused her mother, beat her sister and shot at her and her son. Appellant objected, and the trial court overruled the objections because the prosecution’s inquiry was within the scope of the questioning begun on cross. On re-cross examination, the defense further probed the witness’ allegations of appellant’s propensity for violence and asked the witness if she called the police when these incidents occurred. When the witness responded that she did contact the police, defense counsel asked, “so the police department will have a stack of police reports from you calling them, right?” On further redirect, the prosecution elicited from the witness that she did follow up with the police when appellant shot at her and her son, and the prosecution then offered into evidence a certified copy of an indictment and conviction of appellant for aggravated assault relating the shooting. On appeal, appellant argues that the evidence of the indictment and conviction was admitted without a proper purpose, that it placed the character of the appellant in issue and that any relevancy of the evidence was outweighed by its prejudicial effect. “ ‘Evidence relevant to an issue in the case is not rendered inadmissible because it may incidentally impugn the character of an accused where character is not otherwise in issue.’ [Cits.]” (Punctuation and citations omitted.) McCarthy v. State, 196 Ga. App. 839 (3) (397 SE2d 178) (1990). “What is forbidden is the State’s introduction in the first instance of evidence whose sole probative value is that it tends to show a defendant’s bad character. [Cit.]” Mathis v. State, 192 Ga. App. 772, 773 (3) (386 SE2d 532) (1989). There was no error in admitting the indictment and conviction of appellant. It is clear that defense counsel made the first reference to the witness’ feelings for appellant and the reasons therefor. After the prosecution appropriately followed the line of questioning, the defense continued to probe and attack the witness’ credibility by asking if the witness had made reports to the police. The prosecution, in response to the attacks by the defense and in an attempt to bolster the witness’ veracity and credibility, introduced the indictment and conviction. Thus, although the conviction may reflect on appellant’s character, the line of questioning was not introduced by the State in the first instance, and the conviction was relevant to the credibility of the witness. See McCarthy, supra. “One cannot complain of a judgment, order, or ruling that his own procedure or conduct has caused. [Cit.]” Mathis, supra at 774. Moreover, “ ‘[A]dmission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion.’ [Cit.]” Ingram v. State, 192 Ga. App. 196 (2) (384 SE2d 262) (1989). Appellant argues that the court erred in not giving limiting instructions to the jury. The record reflects that the defense submitted a request to charge on witness’ feelings in an attempt to limit the jury’s consideration of the evidence. The court determined that the charge as submitted did not make sense and did not address the defense counsel’s concerns about the evidence. The court gave defense counsel the opportunity to redraft the charge or to submit other instructions, but the record is devoid of any further submission by the defense. “[The] failure to instruct the jury as to the limited purpose for which evidence is offered, is not error in the absence of a request. [Cit.]” Cridiso v. State, 200 Ga. App. 342 (1) (408 SE2d 153) (1991).

Decided February 12, 1992.

Shandor Badaruddin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Constance C. Russell, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1818.
    BOWDEN v. THE STATE.
    (415 SE2d 527)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of driving under the influence of alcohol and giving false information to a police officer. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Four days prior to the selection of appellant’s jury, the trial court conducted a preliminary juror orientation session for the entire array. The trial court’s refusal to allow appellant’s attorney to be present during this juror orientation session is enumerated as error.

“[J]uror orientation, whether it be through preliminary instructions to the entire array[, as here,] or through responses to questions raised by members of a panel, serves a useful function.” Edmonds v. State, 196 Ga. App. 190, 194 (1) (395 SE2d 566) (1990). See also Johnson v. State, 179 Ga. App. 21, 23 (2) (345 SE2d 123) (1986); Mention v. State, 171 Ga. App. 116 (1) (318 SE2d 765) (1984); Beardon v. State, 159 Ga. App. 892, 893 (3) (285 SE2d 606) (1981). The instant preliminary juror orientation session was recorded and no comment made by the trial court therein has been specifically enumerated as erroneously uninformative, inaccurate, or prejudicial. Compare Edmonds v. State, supra at 193 (1). Appellant’s enumeration of error asserts only that the absence of his counsel mandates a reversal. However, the preliminary juror orientation session was not a “stage of the trial” or a “critical stage of the proceedings,” such as would require reversal based solely upon the absence of appellant or his counsel. See Gilreath v. State, 247 Ga. 814, 824 (3) (279 SE2d 650) (1981); Stone v. State, 177 Ga. App. 750, 751 (1) (341 SE2d 280) (1986). See also Commonwealth v. Katz, 10 A2d 49, 52-53 (Pa. Super. 1939); Goldstein v. State, 150 A2d 900, 905 (Md. App. 1959); People v. Lopez, 197 P2d 757, 759 (Cal. 1948). Accordingly, this enumeration of error is without merit.

2. Appellant’s blood-alcohol level was shown to be .06. On cross-examination, the law enforcement officer who had tested appellant’s blood-alcohol level was asked whether this was “a low test compared to those normally given to people who are charged with DUI.” The State’s objection on the ground of irrelevancy was sustained and the officer was not allowed to answer the question. This ruling is enumerated as error.

The issue for jury resolution was whether appellant was “[u]nder the influence of alcohol to the extent that it [was] less safe for [him] to drive. . . .” (Emphasis supplied.) OCGA § 40-6-391 (a) (1). Obviously, the test results of persons other than appellant would shed no light on this issue. Any mere disparity between appellant’s test results and those of others charged with DUI would not be reflective of the differing effect that a given blood-alcohol level might have on the ability of different individuals to drive safely. A blood-alcohol level greater than .06 might not render one individual a less safe driver, whereas a blood-alcohol level below .06 might render another individual a less safe driver. As with any driver whose blood-alcohol level was within the parameters of OCGA § 40-6-392 (b) (2), appellant’s test result raised no presumption that he was thereby rendered a less safe driver and was but one factor to be considered by the jury in making that determination. Since the test results of persons other than appellant would not be probative of any relevant issue in the case, it was not error for the trial court to have sustained the State’s objection to the question. See generally Hunter v. State, 191 Ga. App. 769, 771 (382 SE2d 679) (1989).

Judgments affirmed. Judge Arnold Shulman concurs.

Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

Although I concur in Division 2, I do not fully concur in Division

1.

Defendant’s counsel attempted to sit in on the jury orientation conducted by the judge at the beginning of the trial in the room which was being used as a jury assembly room. He simply wanted to listen to the proceedings, as out of this group the defendant’s jurors would be chosen. The judge advised counsel that the juror orientation session was not open to the general public and precluded him from remaining. There is no explanation of why this very important and influential part of jurors’ service, when they meet the judge and are given general instructions which will guide their service, is or should be closed.

Considering the matter from the perspective of the public and of the persons who are to be tried, as well as the effect on fairness which open proceedings serve to achieve, jury orientation should not be conducted behind closed doors. The concern that court communications with juries be open has been expressed by both of our appellate courts. See, e.g., Forehand v. State, 188 Ga. App. 527 (1) (373 SE2d 382) (1988); Berryhill v. State, 235 Ga. 549, 554 (12) (221 SE2d 185) (1975).

In this case the orientation was reported, so defendant was able to ascertain whether anything occurred which he thought was prejudicial to him. He asserts that he has the sheer right to have his counsel (not himself) present during this proceeding, but we find no precedent for this proposition as it has not been regarded as a critical stage of the proceedings against him.

He also asserts that the transcript, which he was provided with in lieu of his counsel’s presence, shows that the court infected the jurors by putting a premium on speed superior to the values of correctness and justice. The court told the jurors that there were 26 cases to be called during this criminal trial week and that “[i]t’s my duty and job to try and dispose of as many of these 26 cases during this five-day period which is available to us as possible, so we will, I assure you, try to call and dispose of as many of these cases as we possibly can.”

Decided February 12, 1992.

David W. Griffeth, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.

Although, out of context, one could paint the court’s statement with a connotation of lopsided values, one must consider not only the entire tenor of the orientation but more importantly the manner in which the court conducted defendant’s trial later that week. The record reflects that it was done with due deliberation and all the procedural safeguards to which defendant was entitled, including a careful and complete charge on the jury’s duty with respect to the finding of guilt or innocence.

Moreover, although the words “dispose of” may not be the most neutral expression to convey the idea, the court was merely referring to the constitutional mandate underlying the philosophy of case management in our state, which is the achievement of “the speedy, efficient, and inexpensive resolution of disputes and prosecutions.” 1983 Ga. Const., Art. VI, Sec. IX, Par. I.

Where no harm is shown, the conviction must be affirmed. Robinson v. State, 176 Ga. App. 18 (335 SE2d 303) (1985).

       One meaning is “to get rid of, throw away, discard.” Webster’s Third New Intl. Dictionary, unabridged.


author: Andrews, Judge.

text:
    A91A1875.
    BLACK v. GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY.
    (415 SE2d 705)
   Andrews, Judge.

Black brought this action against Georgia Southern & Florida Railway Company (the railway) and Wynne for injuries he suffered when his automobile collided at an intersection with a car driven by Wynne. The trial court granted summary judgment in favor of the railway and Black appeals.

Black claims that the accident was proximately caused by Wynne’s negligence in combination with the negligent failure of the railway to properly maintain its crossing signal at the intersection. The record, as viewed in favor of the non-moving party, reflects that Wynne was traveling in a line of cars on Watson Boulevard approaching its intersection with Highway 247 in Warner Robins. The railway’s tracks ran parallel to Highway 247. The cars approaching the intersection on Watson Blvd. from Wynne’s direction were required to cross the tracks, and then proceed approximately two car lengths before encountering the city traffic light facing Watson Blvd. At the time of the accident, which occurred on a clear day at about noon, the railway’s automatic crossing signal was malfunctioning causing the crossing bars to go up and down every few minutes. There was no train approaching on the tracks. The malfunctioning signals had caused traffic to back up on Watson Blvd. as cars approaching the intersection would either drive around the lowered bars or wait until they raised to proceed. Wynne crossed the tracks when the bars were in the up position, and proceeding two car lengths, stopped her car at the traffic light. She testified on deposition that the crossing bars were behind her at that point, and had no further effect on her driving. Wynne further deposed that, as she approached the intersection, the city traffic light facing her was also malfunctioning, and was either continuously red or completely off. Wynne testified the cars approaching on Highway 247 had the right-of-way at that point, and she treated the intersection as if she was at a stop sign. As the cars preceding her had done, Wynne came to a complete stop at the intersection, and ignoring the malfunctioning traffic light, looked both ways with an unobstructed view, saw no cars coming on Highway 247, and drove into the intersection. Immediately upon pulling into the intersection Wynne collided with Black, who deposed that he was traveling on Highway 247 under a green traffic light at the intersection. The record shows that the city traffic light was coordinated with the railway’s crossing signal. Every time the automatic crossing signal was activated, the traffic light would be triggered to run through its sequence of colors, and remain red facing Watson Blvd. as long as the crossing bars were down. The uncontroverted affidavit of the railway’s signal supervisor indicated that the malfunction of the crossing signal could not have caused the city traffic light to freeze on one color or go out altogether.

1. The gravamen of Black’s complaint against the railway is that the negligently maintained and malfunctioning crossing signal created a hazardous traffic condition which, combined with Wynne’s negligence, proximately caused the accident. In order to state a cause of action for negligence it is necessary to establish the essential elements of duty, breach of that duty, and proximate cause which amounts to a legally sufficient causal connection between the conduct alleged and the resulting injury. Robertson v. MARTA, 199 Ga. App. 681 (405 SE2d 745) (1991). A defendant who pierces the plaintiff’s pleadings by showing that under any theory one essential element is lacking is entitled to summary judgment despite any remaining issues of fact with respect to other essential elements. Id. at 683. The trial court correctly determined that the railway did not proximately cause the accident and granted summary judgment because, as a matter of law, the intervening actions of Wynne broke any causal connection between the accident and the conditions created by the malfunctioning crossing signal.

Although the malfunctioning crossing signal may have been a cause in fact of the accident under the theory that but for the conditions created by the malfunction the accident would not have happened, this does not constitute a determination that the railway’s negligence was a proximate cause of the accident. McAuley v. Wills, 251 Ga. 3, 7 (303 SE2d 258) (1983); Rustin Stamp &c. Inc. v. Ray Bros., 175 Ga. App. 30, 32 (332 SE2d 341) (1985). The concept of proximate cause acts as “a limitation on what would otherwise be the unlimited liability of a negligent tortfeasor for all the immediate and the eventual consequences of his negligence.” Mikell, Jury Instructions & Proximate Cause, Ga. Bar Journal, Vol. 27, No. 3 at 61 (1990). Applying this concept to limit recovery necessarily involves a policy decision that, for various reasons including the intervening act of a third person, the defendant’s conduct is too remote from the injury to attach liability. McAuley, supra at 7; Western Stone &c. Corp. v. Jones, 180 Ga. App. 79, 80 (348 SE2d 478) (1986). While this policy decision is usually left to a jury, in plain and undisputed cases the court may make the determination as a matter of law. Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176 (342 SE2d 497) (1986).

“It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s acts, and which was sufficient of itself to cause the injury.” (Quotations and citations omitted.) Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386) (1989); In other words, “if the author of the latter negligence, with the intermediate effects of the former negligence consciously before him, is guilty of a new negligent act which preponderates in producing the injurious effect, we say that the first negligent cause is not the proximate cause, that the intervention of the latter negligence breaks the chain of causal connections so far as juridic purposes are concerned.” Ethridge v. Nicholson, 80 Ga. App. 693, 696 (57 SE2d 231) (1950).

After having crossed the railroad tracks, and with the malfunctioning crossing bars safely behind her, Wynne came to a complete stop at the intersection aware that the traffic light was not functioning, and mindful that cars approaching on Highway 247 had the right-of-way under the existing conditions. In these circumstances, the negligence of the railway did no more than furnish conditions or give rise to the occasion by which the injury was made possible, and under which Wynne took actions which intervened as the preponderating cause of the accident. Wanless v. Winner’s Corp., 177 Ga. App. 783, 785 (341 SE2d 250) (1986). Nevertheless, any intervening act which is a normal reaction to the conditions created by the prior negligence is deemed foreseeable by the defendant and does not break the chain of proximate causation. Perry v. Lyons, 124 Ga. App. 211, 215-216 (183 SE2d 467) (1971).

As Wynne pulled into the intersection and collided with Black, she was not confronted with conditions to which her response could be deemed normal or foreseeable. Although the conditions made the process of crossing the intersection less convenient than it would have been with a properly functioning crossing signal and traffic light, the degree of care required was no greater than that demanded of drivers entering an intersection from a stop sign. No hazard or condition of emergency was created by the railway which prevented Wynne, by the exercise of ordinary care, from safely traversing the intersection. Blanchard v. Posey, 81 Ga. App. 631 (59 SE2d 530) (1950) (negligence of defendant in turning off traffic light at intersection was not the proximate cause of an automobile accident occurring there, where such negligence created no emergency or immediate hazard, and did not prevent safe passage through the intersection by the exercise of ordinary care); compare Bass v. Seaboard Air Line R. Co., 205 Ga. 458, 474 (53 SE2d 895) (1949) (causal connection not broken because the intervening act was foreseeable as a normal reaction to the stimulus of an inherently dangerous situation created by the prior negligence).

Since no conditions created by the railway prevented safe passage through the intersection by the exercise of ordinary care, we find the intervening actions of Wynne severed any legally sufficient causal connection between the negligence of the railway and the collision with Black.

2. Black also claims that the trial court erred by granting summary judgment without opening or considering the depositions of four witnesses in the case. “If a trial court indicates in his order granting a motion for summary judgment that the motion is being granted after a review of the record, this court will not hold that he failed to review the relevant portions of a deposition simply because the original of the deposition on file in the case remained sealed and was not opened until after the order granting the motion was entered.” General Motors Corp. v. Walker, 244 Ga. 191, 193 (259 SE2d 449) (1979). In any event, the depositions are in the record, we have examined them, and nothing therein raises a genuine issue of material fact.

Decided February 12, 1992.

Dozier, Akin, Lee & Graham, Neal B. Graham, for appellant.

Hall, Bloch, Garland & Meyer, J. Steven Stewart, for appellee.

Judgment affirmed.

Sognier, C. J., concurs. McMurray, P. J., concurs in the judgment only.

       In determining that the railway is not liable for the accident, we make no determination as to liability between Wynne and Black.


text:
    A91A1887.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. WILLIAMS.
    (415 SE2d 535)
   Andrews, Judge.

Mozelle Williams filed this lawsuit against MARTA for injuries she claimed to have suffered as the result of a fall at a MARTA station. She alleged that her fall was caused by water which was left on the floor by a MARTA employee and that MARTA was negligent in maintaining this unsafe condition. The case was tried before a jury and resulted in a verdict for Williams of $12,024.64.

1. In its first and second enumerations of error, MARTA claims that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict or, in the alternative, for a new trial. Because the standards for granting a directed verdict and a judgment notwithstanding the verdict are the same, we will review these enumerations together. Joe N. Guy Co. v. Valiant Steel & Equip., 196 Ga. App. 20 (395 SE2d 310) (1990). “As with a directed verdict, a motion for judgment notwithstanding the verdict is proper only where there is no conflict in the evidence as to any material issue and evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” (Citations and quotations omitted.) Hiers-Wright Assoc. v. Manufacturers Hanover &c. Corp., 182 Ga. App. 732 (2) (356 SE2d 903) (1987).

Viewing the evidence in favor of the verdict, we find that at the time of the incident it was drizzling lightly outside, but that there was no rainwater in the turnstile area in which the fall occurred and that the area in which the fall occurred was well inside the station. After her fall, Williams noticed that the floor appeared to have been recently mopped and she saw a bucket and mop, which MARTA employees used for cleaning, near the spot she fell. There was also testimony that a MARTA employee had recently mopped the area in which Williams fell.

MARTA, citing Layne v. Food Giant, 186 Ga. App. 71 (366 SE2d 402) (1988), argues that since rainwater might have caused the fall, the failure to direct a verdict in its favor was error. We recognize that had the evidence shown that rainwater in the entranceway was the cause of the fall, then the trial court’s failure to grant MARTA’s motions would be error. See Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (332 SE2d 304) (1985). This was not the situation here, since there was evidence to support the plaintiff’s theory that the wetness was left by an employee’s cleaning efforts and was not from rainwater accumulation. See generally Food Giant v. Cooke, 186 Ga. App. 253 (366 SE2d 781) (1988). There was also evidence that MARTA had superior knowledge of the condition of the floor. Compare McConnell v. Winn-Dixie Atlanta, 194 Ga. App. 700 (391 SE2d 785) (1990); Cook v. Arrington, 183 Ga. App. 384, 385 (358 SE2d 869) (1987).

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alternan Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

In the instant case, unlike in Layne, we are unable to assume that plaintiff slipped on rainwater when she fell, nor are we able to assume that Williams had equal knowledge of the water. Here there was proof of fault by MARTA and of ignorance of the danger by Williams. Hospital Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500 (402 SE2d 103) (1991). We find that there was sufficient evidence for a jury to find that the wetness was caused by an employee’s mopping, and not by rain, and that the wet area was distant from the entrance to the station itself. Compare Jiffy Store v. Bishop, 190 Ga. App. 716 (379 SE2d 602) (1989). Accordingly, the trial court did not err in denying the motions for directed verdict and judgment notwithstanding the verdict and there was no error in the trial court’s failure to grant a new trial.

2. Next, MARTA contends that the trial court erred in allowing Williams to call witness Amos Causey for purposes of cross-examination. Citing Pirkle v. Hawley, 199 Ga. App. 371 (7) (405 SE2d 71) (1991) and Massey Jr. College v. Taggart, 140 Ga. App. 591 (1) (231 SE2d 540) (1976), MARTA argues that an opposite party can call an alleged agent for purposes of cross-examination only if the agency exists at the time of the trial. Although this may be a correct statement of law, MARTA failed to argue this objection before the trial court and has not clearly articulated how this principle applies to the present case. Accordingly the issue has not been preserved properly for appeal. See First Financial Ins. Co. v. Rainey, 195 Ga. App. 655, 660 (4) (394 SE2d 774) (1990), aff’d in part, rev’d in part, 261 Ga. 52 (401 SE2d 490) (1991).

Decided February 12, 1992.

David R. Autry, for appellant.

Kenneth J. Rajotte, for appellee.

Judgment affirmed.

Sognier, C. J., concurs. McMurray, P. J., concurs in the judgment only.


text:
    A91A1906, A91A2190.
    GEBREMEDHIN v. THE STATE.
    (415 SE2d 529)
   Birdsong, Presiding Judge.

Kalayou Mahare Gebremedhin appeals the denial of his motions to suppress evidence, following his conditional guilty pleas to two indictments (see, however, Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824)), the first indictment being filed May 15, 1989, for possession of cocaine with intent to distribute on February 15, 1989, and the second indictment being filed May 10, 1990, for trafficking in cocaine on April 6, 1990. As to each offense, appellant contends the police did not have probable cause to arrest him, which invalidated the respective subsequent consensual search and search incident to arrest. Held:

Case No. A91A1906

Detective Przeslawski of the Augusta Police Department testified that at about 8:00 p.m. on February 15,1989, he and Detectives Thorington and Burbo acted upon information given to Thorington by a confidential and reliable informant, that appellant and another suspect were selling cocaine at the Pedros Club. The informant described the suspects, their clothing and their car. Detective Przeslawski had on previous occasions received information from this confidential informant which had resulted in arrests. The detectives set up surveillance behind a fence across from the Pedros Club and, using binoculars, saw appellant and the other suspect (Elfred Baker) conduct transactions. Baker appeared to be the lookout; he stopped persons who then approached appellant and handed appellant what appeared to be money. Appellant went back to his vehicle and returned to the persons and handed them something, and the persons then walked off. After two of these transactions, the officers stopped appellant and Baker and searched them. Appellant had on his person $448.80. He gave consent to search his vehicle, wherein was found an amber-colored pill bottle containing 12 pieces of crack cocaine.

Appellant argues that the officers were without sufficient probable cause to arrest appellant, because Detective Przeslawski could not state with any certainty the nature of the objects exchanged by appellant and the apparent buyers, and because the informant’s reliability was not established.

Following the tip of a reliable informant (see Pickard v. State, 152 Ga. App. 707, 708 (263 SE2d 679)), police saw appellant as described at the described night club location doing acts which, in confirmation of the informant’s information (see McKinney v. State, 184 Ga. App. 607 (362 SE2d 65)), appeared to the officers in their experience to be the exchange of drugs for money. “Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.” Cook v. State, 136 Ga. App. 908, 909 (222 SE2d 656); see Banks v. State, 187 Ga. App. 280, 281-282 (370 SE2d 38). A combination of suspicious circumstances evincing the conduct of a criminal act may amount to “ ‘sufficient probable cause to uphold a warrantless arrest or search.’ ” Id. at 282; see generally State v. Reid, 247 Ga. 445 (276 SE2d 617). Particularly in view of the reliable tip that appellant was in fact selling cocaine at that specific location, the observance by police of transactions of exchange by the described persons provided probable cause in the totality of circumstances to uphold this search and seizure of money from appellant. The arrest was supported by further probable cause with the discovery of the large sum of money, and the search of the vehicle with consent was valid. See Huffman v. State, 149 Ga. App. 464 (254 SE2d 489), cert. den. 444 U. S. 918 (100 SC 236, 62 LE2d 174). The trial court did not err in refusing to suppress this evidence.

Case No. A91A2190

On April 5, 1990, Deputy Tarver, in undercover, met with a confidential informant to set up a purchase of crack cocaine. The informant directed Tarver to the Alamo Hotel in Augusta, where the informant parked and talked with the person whom Tarver identified as appellant. Appellant got in the car with the deputy and informant and drove to the rear of Southgate Mall. Appellant told Tarver that “the guy he was going to purchase the cocaine from didn’t want . . . anyone to know where he lived,” whereupon Tarver gave appellant $600 and appellant left the vehicle. After about 40 minutes, Tarver decided appellant had absconded and posted a lookout for appellant, giving a description of a black male who was, according to Tarver’s recollection at trial, wearing “plaid shirt and blue jeans.” Officer Bolton and others, who were in front of Southgate Mall, immediately set forth to locate the person described by Tarver, whom Bolton wrote in his notes as wearing “green shirt with stripes, light blue pants.” On a street nearby, Bolton saw a person walking in the opposite direction from Southgate Mall, wearing clothes matching the description given, and arrested him. An incidental search found 28 grams of cocaine on the person. In court, Officer Bolton identified this person as appellant.

Decided February 12, 1992.

Peter D. Johnson, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

Appellant contends that probable cause to arrest was wanting in this instance because of the variance in the description of clothing Deputy Tarver said he gave and the description of the clothing which Bolton said was worn by the person he arrested. This is not exactly the import of the trial testimony. Tarver testified from memory nearly two years later as to the description he gave, whereas Bolton testified from contemporaneous notes, and moreover testified that when he made the arrest after leaving Southgate Mall, he “stopped the first black male that fit the description that was given out by Deputy Tarver.” The evidence authorizes the conclusion that the suspect was arrested on the basis of the description given that day by Deputy Tarver.

“The test of probable cause is whether it would justify a person of reasonable caution in believing that an offense has been or is being committed, and this requires probability, which is less than a certainty but more than mere suspicion or possibility.” Lewis v. State, 255 Ga. 101, 104 (335 SE2d 560). Irrespective of Tarver’s testimony from recall two years later as to what description he gave, the arresting officer arrested the person matching the description actually given. His reasonable belief might not arise to a certainty, but it clearly was more than mere suspicion or “possibility.” Id. The search incident to the lawful arrest was therefore valid, pursuant to OCGA § 17-5-1.

Judgments affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1930.
    LINGO et al. v. BRASINGTON.
    (415 SE2d 534)
   Cooper, Judge.

This case arises from a wrongful death action brought by appellants, the parents of the deceased. The car in which the deceased was riding as a passenger was travelling southbound on a two-lane highway and collided with a truck that was stopped in the southbound lane. Appellee was the driver of a car travelling north in the northbound lane. The driver of the car carrying the deceased contended that he could not drive around the stopped truck because appellee had stopped to talk to the driver of the stopped truck, thereby blocking the roadway. Appellants sued appellee for the wrongful death of their child, alleging his negligence in blocking the roadway, and a jury returned a verdict for appellee. Appellants appeal, raising as their sole enumeration of error the trial court’s instruction to the jury on sudden emergency.

Decided February 12, 1992.

“ ‘ “The doctrine of sudden emergency refers only to those acts which occur immediately following the apprehension of the danger or crisis and before there is time for careful reflection. (Cit.) The rule of sudden emergency is that one who in a sudden emergency acts according to his best judgment or, because of want of time in which to form a judgment, acts in the most judicious manner, is not chargeable with negligence. (Cits.)” [Cit.] “An emergency is a ‘sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributed not to lack of care but to lack of time to assess the situation.’ (Cit.)” . . . [Cit.]’ [Cits.]” Kelly v. Adams, 197 Ga. App. 574 (2) (398 SE2d 848) (1990). Appellee testified that as he was proceeding northbound, he saw the truck stopped in the southbound lane; that as he approached the stopped truck, he slowed down but did not stop; that as he slowed down he saw the other car heading south behind the stopped truck and he realized this was a bad situation; that he decided to accelerate forward beyond the stopped truck; that as he accelerated, the crash occurred. We do not agree with appellant that appellee’s actions created the emergency situation. There is evidence that appellee, who was responding to a situation resulting from the stopped truck, was faced with his own emergency. Seeing the southbound car behind the stopped truck, appellee had to make a decision and he testified that he decided to proceed forward. Based on the testimony presented at trial, the court did not err in charging the jury on sudden emergency. “Where there is evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue. [Cit.]” Foskey v. Williams Bros. Trucking Co., 197 Ga. App. 715 (3) (399 SE2d 484) (1990).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.

Samuel W. Oates, Jr., for appellants.

Kelly, Denney, Pease & Allison, Allen C. Levi, Bradford C. Dodds, for appellee.


author: Carley, Presiding Judge.

text:
    A91A1995.
    TOLES v. THE STATE.
    (415 SE2d 531)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of aggravated child molestation. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. “There is no requirement that the testimony of the victim of [aggravated] child molestation be corroborated. [Cit.] Nevertheless, the testimony of the victim in this case was corroborated in several material respects. From all of the evidence, the jury was authorized to find that appellant had committed an immoral or indecent act to the person of the child . . . with the intent to arouse his sexual desires . . . [and] that the commission of the act of molestation was accomplished by the use of such force as to have resulted in physical injury to the child. [Cit.]” Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988). A rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of aggravated child molestation beyond a reasonable doubt. Adams v. State, supra; Keeler v. State, 181 Ga. App. 208 (1) (351 SE2d 731) (1986).

2. Over appellant’s hearsay objection, a witness was permitted to relate a statement made to her by the victim. “The record reflects that the trial court found sufficient indicia of reliability from the circumstances of the [statement]. The victim herself testified at trial and was cross-examined. The trial court did not err in admitting [this testimony] over appellant’s hearsay objection. [Cits.]” Fitzgerald v. State, 193 Ga. App. 76, 77 (5) (386 SE2d 914) (1989). See OCGA § 24-3-16.

3. The evidence authorized a finding that appellant was guilty only of aggravated child molestation. However, the trial court did not, as appellant contends, erroneously charge on child molestation as a lesser included offense. The record clearly shows that the trial court merely defined child molestation in connection with its charge on the elements of aggravated child molestation. Since child molestation is an element of aggravated child molestation, defining child molestation for the jury was obviously correct. Moreover, even if the trial court had given a charge on child molestation as a lesser included offense, the error would clearly be harmless since appellant was not convicted of that offense. McWhorter v. State, 198 Ga. App. 493, 494 (2) (402 SE2d 60) (1991).

Decided February 12, 1992.

Robert L. Ferguson, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Sognier, Chief Judge.

text:
    A91A2188.
    CALLOWAY v. THE STATE.
    (415 SE2d 533)
   Sognier, Chief Judge.

Gordon Calloway was convicted of one count of child molestation and a second count of child molestation as the lesser included offense of the charged crime of statutory rape. He appeals.

Appellant contends in his sole enumeration of error that the trial court erred by admitting third-party testimony regarding out-of-court statements made by the victim under OCGA § 24-3-16 because the trial court did not make a finding regarding whether the circumstances of these statements provided sufficient indicia of reliability and because the inconsistencies in the victim’s statements meant no such finding of indicia of reliability could be supported by the evidence. We do not agree.

Regarding the trial court’s failure to state on the record that it found sufficient indicia of reliability, we have held that it is implicit in the admission of statements pursuant to OCGA § 24-3-16 that the trial court made the necessary finding. Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988). We will not reverse a correct ruling of the trial court admitting statements pursuant to OCGA § 24-3-16, regardless of the reason given for or the timing of its ruling, if, after both sides have rested at trial, the record contains sufficient competent evidence of “indicia of reliability.” Gregg v. State, 201 Ga. App. 238, 239-240 (3) (a) (411 SE2d 65) (1991). The consistency between repeated out-of-court statements by the victim is but one factor which the court may consider. Id. at 240 (b).

Examining the transcript in light of the factors set forth in Gregg, supra at 240 (b), evidence was adduced at trial that appellant offered the 13-year-old victim money to clean his camper, then molested her once she was inside. The victim’s grandmother testified that when she arrived to take the victim home, the child was depressed and crying and once home went to her room, cried, and refused to talk until persuaded to do so the following day. Although at that time the victim told the grandmother that appellant had undressed her and had sex with her, the victim told the investigating officer the same day that her clothing was not removed and that she “was not sure” if appellant had penetrated her. The investigating officer testified that the victim was afraid to talk and scared of appellant. A social worker who spoke with the victim three days later also testified that the victim was confused about whether penetration had occurred. It was not until she spoke with the investigating officer a few days later that the victim told someone outside her family that sexual intercourse had occurred; the investigating officer testified it was common for child molestation victims to tell more about what happened a few days later. The victim testified at trial that she did not immediately tell the investigating officer that appellant had sexual intercourse with her because she was afraid.

Decided February 12, 1992.

Jones & Ledbetter, Joseph D. Little, for appellant.

Darrell E. Wilson, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

We find that this evidence established a sufficient showing of indicia of reliability, within the meaning of OCGA § 24-3-16, as to all out-of-court statements made by the victim, which were testified to by witnesses in the presence of the jury. Gregg, supra. “The record also shows the child was present at trial, testified as a court witness, and was subject to examination and cross-examination by appellant and the State. Thus, appellant had every conceivable opportunity to examine and cross-examine the child in the presence of the jury, regarding the child’s memory of and the circumstances surrounding [her] making of each of the out-of-court statements in question, and had the opportunity to allow the jury to judge the child’s demeanor in response to any examination or cross-examination about the alleged making and veracity of these previous statements. This procedure provided an additional safeguard to appellant’s right of fair trial, and provided appellant full opportunity for confrontation.” Id. at 241 (c).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A1529.
    KING v. THE STATE.
    (415 SE2d 684)
   Sognier, Chief Judge.

Donna Marie King was indicted for murder and convicted of voluntary manslaughter in the death of Dennis McMullen. She appeals from the denial of her motion for new trial.

The evidence adduced at trial established that in late 1987 or early 1988, appellant and her two young children moved into a house rented by McMullen and inhabited by McMullen and several other adults, including appellant’s former husband, Keith King. Appellant and McMullen soon became romantically involved. Appellant testified that McMullen was kind to her for the first few weeks but eventually became violent toward her and others, and that he drank heavily nearly every day.

On the night of May 28, 1988, McMullen received several visitors, including a former lover. Appellant testified that she was sitting outside the house and that when she looked through the front window and saw McMullen hugging and fondling two of the women visitors, she decided to leave him. Testimony of the visitors established that they heard the sound of glass breaking in a bedroom and observed a broken window; that McMullen concluded appellant had broken it; that McMullen ran to retrieve his pistol from his car but discovered it was missing; that McMullen went back to the house, got out his shotgun, and fired it into the air; that as the visitors departed they heard appellant and McMullen yelling at one another and then heard five gunshots. McMullen’s body was found in the driveway with five bullet' wounds from shots fired from his pistol. Appellant initially told police that she had shot McMullen, but in a later statement and at trial she testified that Keith King shot McMullen as he was attacking appellant, and that she had claimed to be the perpetrator at King’s insistence because he thought her claim of self-defense would be more credible.

1. Appellant contends the trial court erred by excluding her proffered evidence concerning prior violent acts committed by McMullen against appellant and third parties. On the State’s motion in limine to preclude the admission of this evidence, the trial court initially ruled in appellant’s favor. However, after appellant testified that she did not shoot McMullen, the court reversed the earlier ruling, reasoning that appellant had not made a prima facie case of self-defense.

At the time this case was tried, Georgia law precluded the use of evidence of specific violent acts toward third parties to show the victim’s tendency to commit violent acts. Hill v. State, 259 Ga. 655, 657 (4) (386 SE2d 133) (1989). Nonetheless, a defendant is permitted to show the victim’s general reputation for violence if the defendant first “makes a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly trying to defend himself. [Cits.]” Chapman v. State, 258 Ga. 214, 215 (2) (367 SE2d 541) (1988). Similarly, evidence of specific acts of violence by the victim against the defendant is admissible provided this same prima facie showing is made. Milton v. State, 245 Ga. 20, 22 (262 SE2d 789) (1980).

We agree with the trial court that appellant did not set forth a prima facie case of justification or self-defense, for at trial she specifically recanted her earlier statement that she shot McMullen in self-defense and testified instead that he was killed by someone else in her defense. See generally Bennett v. State, 254 Ga. 162, 164 (3) (a) (326 SE2d 438) (1985); compare Chapman, supra at 214-216. Moreover, even if she had made a prima facie case, evidence of McMullen’s specific acts of violence toward others was not admissible. Bennett, supra at 164-165 (3) (a). Furthermore, appellant was permitted to testify that McMullen became violent toward her and other members of the household. Accordingly, we find no error.

2. Appellant next enumerates as error the trial court’s exclusion of Keith King as a witness after King indicated he intended to claim his Fifth Amendment right against self-incrimination as to any question concerning the events that occurred the night of McMullen’s death. As a general rule, “[w]here [a] witness ha[s] indicated to the trial judge outside the presence of the jury that he will assert [his Fifth Amendment] privilege he may not be called by the defendant.” Dodd v. State, 236 Ga. 572, 576 (224 SE2d 408) (1976). Appellant contends the trial court should have followed the procedure sometimes used in civil cases whereby the witness is permitted to testify as to non-incriminating matters, claiming the privilege as needed. We do not agree. Even assuming, without deciding, that the topics on which appellant sought King’s testimony were relevant to the issues before the jury, the Supreme Court has adopted the federal rule that “ ‘[i]f it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. . . .’ [Cit.]” Davis v. State, 255 Ga. 598, 604 (7) (340 SE2d 869). (1986). Under the circumstances of this case, we find no abuse of that discretion.

3. Appellant also objects to the trial court’s refusal to allow a police officer to testify concerning the statement King made to the officer in which King confessed that he shot McMullen. Our courts have prohibited the admission of hearsay confessions made by co-defendants or co-conspirators, even if exculpatory as to the complaining defendant, if the co-defendant does not testify at trial and is not available for cross-examination. Davis, supra at 604-605 (8); see OCGA § 24-3-52. Exception is made to this rule, however, if the circumstances surrounding the statement provide indicia of reliability and the testimony is critical to the defendant’s Sixth Amendment right of confrontation. Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979); Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973); compare Davis, supra.

After carefully reviewing the circumstances of King’s statement and the available corroborating evidence, we are not persuaded that this case falls within the exceptions articulated in Green and Chambers. The statement was not a spontaneous utterance to a friend, but a recorded statement given several days after the crime. Unlike the situation in Green, we have no information concerning the use of this statement by the State against King (it appears from the record that he had not been tried at the time of appellant’s trial), nor does the record reveal any corroborating evidence for King’s confession. Moreover, unlike the witness in Chambers, King was not available to testify at appellant’s trial because he exercised his Fifth Amendment right against self-incrimination. Accordingly, we find no error. See Davis, supra; see also Davis v. State, 194 Ga. App. 482, 484-485 (2) (391 SE2d 124) (1990).

4. In her final enumeration, appellant contends the trial court erred by allowing the admission of one of her three statements made to police because it was not produced to appellant at least ten days in advance of trial as required by OCGA § 17-7-210 (a). In response to appellant’s notice to produce, the State produced two of appellant’s custodial statements on April 4, 1989 and the third on April 10. A jury was struck on April 19, but upon appellant’s objection to the admission of the latter statement and the State’s ensuing motion for a continuance, the court continued the case until the next day. When the trial reconvened, the court ruled that the lack of compliance with OCGA § 17-7-210 had been cured because ten days had elapsed. The officer’s testimony concerning the statement in question and the statement itself subsequently were admitted without further objection.

As appellant notes, the burden of compliance with OCGA § 17-7-210 is on the State, and if the State wishes to introduce the defendant’s statement into evidence but does not furnish a copy to the defendant within the requisite time period the remedy is for the State to request a continuance. Garner v. State, 159 Ga. App. 244, 245-246 (282 SE2d 909) (1981). However, in the case at bar the State did request a continuance, the trial court continued the case until expiration of the statutory time period, and the court then ruled that the State’s burden of compliance had been met. Since appellant neither objected to that ruling nor objected or moved for a mistrial when the statement was introduced into evidence, she cannot now complain of the admission of the statement. Huguley v. State, 253 Ga. 709-710 (2) (324 SE2d 729) (1985); accord Reeves v. State, 241 Ga. 44 (1) (243 SE2d 24) (1978).

Decided February 3, 1992

Reconsideration denied February 13, 1992

Kelly R. Burke, for appellant.

Edward D. Lukemire, District Attorney, Claire C. Chapman, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       The Supreme Court changed this rule effective September 12, 1991, in Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669) (1991), holding that in future cases evidence of specific acts of violence by the victim toward third parties will be admissible when the defendant makes a prima facie case of justification.