text:
    A90A2095.
    PITTS v. BODE.
    (403 SE2d 66)
   McMurray, Presiding Judge.

Clifton Bode (plaintiff) sued Donna Richardson Pitts (defendant) and alleged that he sustained injuries when defendant negligently drove her vehicle into his vehicle. Defendant denied the material allegations of the complaint. The case was later tried before a jury and the evidence showed that defendant drove a vehicle into the rear of the plaintiff’s vehicle after coming over a hill on a two-lane highway and seeing plaintiff stopped in the road behind a turning vehicle. Plaintiff sustained serious injuries as a result of the collision. The jury returned a general verdict for plaintiff in the amount of $168,772.45. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first contends the trial court “erred in admitting into evidence . . . Plaintiff’s Exhibit 6[,] a purported time log on lost wages consisting of 89 pages.” Defendant argues this exhibit was cumulative of plaintiff’s testimony “that he lost 214 days of work and [that] his lost wages amounted to $33,683.14.” Defendant further argues plaintiff’s Exhibit 6 is a “self-serving memorandum” (hearsay) that is not admissible as a business record under OCGA § 24-3-14 (b).

At trial, defendant objected to the introduction of plaintiff’s Exhibit 6 because it is “duplicative” and “cumulative [of] time records that [plaintiff] testified about.” However, defendant did not then point out what part of the 89 page exhibit is cumulative, nor did she raise any other objection to the admission of plaintiff’s Exhibit 6. Under these circumstances, we find defendant’s objection at trial too vague to have induced a specific ruling as to the cumulative nature of plaintiff’s Exhibit 6. Holiday Homes v. Bragg, 132 Ga. App. 594, 596 (4) (208 SE2d 608). See Columbian Peanut Co. v. Pope, 69 Ga. App. 26, 29 (4), 30 (24 SE2d 710). It therefore follows that the trial court did not err in overruling defendant’s objection to plaintiff’s Exhibit 6. See Levens v. Smith, 102 Ga. 480, 484 (2) (31 SE 104). Further, we cannot address defendant’s argument regarding the “self-serving” nature of plaintiff’s Exhibit 6 since this ground was not asserted at trial. Long v. Marion, 182 Ga. App. 361, 363 (2) (355 SE2d 711), aff’d 257 Ga. 431 (360 SE2d 255). This enumeration is without merit.

2. In her second enumeration of error, defendant contends the trial court erred in refusing to allow her to impeach plaintiff on cross-examination by asking why plaintiff failed to amend or update responses to defendant’s interrogatories.

“Regulation of the scope of cross-examination is within the sound discretion of the trial court and this discretion will not be controlled unless it is manifestly abused. Goldgar v. Galbraith, 155 Ga. App. 429 (3) (270 SE2d 833).” Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 546 (6), 547 (309 SE2d 816). In the case sub judice, defendant’s attorney cross-examined plaintiff on his interrogatory response regarding lost wages, pointing out that plaintiff’s response to the interrogatory was outdated by almost a year and a half. He then asked, “Have you ever amended or changed your answers to these interrogatories?” Plaintiff’s attorney interrupted and requested guidance as to the propriety of this line of questioning. In response, the trial court limited defendant’s cross-examination regarding plaintiff’s failure to amend and update defendant’s interrogatories, pointing out that such examination was not impeaching in nature and that plaintiff had no duty to give defendant a daily amendment or update in response to defendant’s interrogatories. The trial court then implied that defendant waived any requirement for plaintiff to periodically update his responses to the interrogatories by failing to request a supplemental response to the interrogatories from plaintiff. Under these circumstances, we find no abuse of the trial court’s discretion in limiting defendant’s counsel’s cross-examination of plaintiff. Defense counsel was obviously attempting to impeach plaintiff with matters that are not relevant to the issues being tried and which are not impeaching.

3. Defendant contends the trial court erred in failing to give her requested instruction on the principle of legal accident, i.e., “If you should find from the evidence in this case that neither Plaintiff nor Defendant were guilty of negligence, then any injuries or damages would be the result of an accident. The word ‘accident’ has a specific and distinct meaning, as it is used in connection with this case. In Georgia Law, ‘accidental’ injury means, in connection with personal injury such as this, an injury which occurs without being caused by the negligence either of the Plaintiff or of the Defendant. The idea of accident removes responsibility for the cause of the injury. If you find from the preponderance of evidence that the Plaintiff’s damages, if any, were caused by an accident as I have defined the word, the Plaintiff could not recover damages.”

“ ‘ “ ‘A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.’ (Cits.)” (Cits.)’ Fowler v. Gorrell, 148 Ga. App. 573, 576 (2) (a) (251 SE2d 819) (1978).” Annis v. Tomberlin & Shelnutt Assoc., 195 Ga. App. 27, 34 (7) (392 SE2d 717). In the case sub judice, defendant’s request to charge is not a complete statement of the law of accident and it is not precisely adjusted to the evidence.

“The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable.” Chadwick v. Miller, 169 Ga. App. 338, 339 (1), 344 (312 SE2d 835). In the case sub judice, there was evidence that an unidentified vehicle was involved in the collision between plaintiff and defendant and that the unidentified party caused the collision by forcing plaintiff to suddenly stop his vehicle in the middle of the road. Defendant’s request to charge did not include directions that the defense of “accident” would apply if the jury found that the occurrence took place in the absence of negligence and for which no one would be liable, including the unidentified party who stopped in front of plaintiff’s vehicle. Consequently, the trial court did not err in refusing to give the requested charge. See Wilhite v. Tripp, 179 Ga. App. 428, 429 (1) (346 SE2d 586), where a charge on “accident” was authorized because “the jury could have found that it was not foreseeable to [the third party of an automobile collision] that stopping his car [on the edge of the road] would cause ... a collision.” Id. at 429.

4. In her final enumeration, defendant contends the trial court erred in sustaining plaintiff’s objection “to the following question on the ground that said question was argumentative: ‘Mr. Bode, can you just give us an explanation of why in your deposition you would not have mentioned that you thought [defendant] had been drinking?’ ”

As pointed out in Division 2 herein, “[regulation of the scope of cross-examination is within the sound discretion of the trial court and this discretion will not be controlled unless it is manifestly abused. Goldgar v. Galbraith, 155 Ga. App. 429 (3) (270 SE2d 833).” Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 546 (6), 547, supra. An examination of the record in the case sub judice reveals that defendant’s counsel had earlier asked plaintiff why he did not mention his suspicion that defendant had been drinking on the day of the collision during plaintiff’s deposition and that plaintiff responded, “It wasn’t asked me, sir.” Under these circumstances, we find no abuse of discretion in the trial court’s ruling that defendant’s question was argumentative. The question was not only agrumentative, it was redundant. This enumeration is without merit.

Judgment affirmed.

Carley, J., concurs. Sognier, C. J., concurs in the judgment only.

Decided February 22, 1991

Rehearing denied March 1, 1991

William M. Schiller, Jane T. Lex, for appellant.

Ralph E. Hughes, for appellee.

       Defendant testified that she ran into the rear of plaintiff’s vehicle when she “came down [a] hill and . . . saw [plaintiff] swerve over a little to the left, a car was turning and it didn’t give a signal, and [plaintiff] was just right there in front of me. There was no place to go. ..."


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A90A1646.
    SHEA et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    (403 SE2d 81)
   Birdsong, Presiding Judge.

Charlotte Shea and Dr. Matthew McRae appeal from the trial court’s judgment in favor of State Farm Fire & Casualty Company in an action on an open account. Shea and McRae were two of several partners in a general partnership which obtained workers’ compensation insurance coverage from State Farm. State Farm sued the partners to recover past due earned premiums. After a bench trial, the trial court found that State Farm was entitled to recover premiums due on insurance policies which were in effect between March 1983 and April 1985.

Appellants complain that the trial court erred by ruling that the case was an action on account rather than a breach of contract claim, erred in finding for State Farm since appellants contend that State Farm did not prove its damages under a breach of contract theory, and erred in not finding that the incorporation of the partnership absolved appellants from personal liability to State Farm. Held:

1. Appellants complain that the trial court ruled that incorporation of a general partnership at will did not dissolve the partnership and that the incorporation of the general partnership did not bar individual liability of the former partners. The record shows, however, that the rulings of the trial court did not involve the principles which appellants now assert. In this instance, the trial court found that appellants, while operating as a partnership, contracted with State Farm to provide workers’ compensation insurance and that after appellants incorporated they did not advise State Farm of the change in their status. Therefore, the premiums were debts of the partnership, and not the corporation. Moreover, since the judgment was for premiums due prior to the date on which State Farm became aware that the partnership had incorporated, the principles which appellants now assert have no application in this case. Under the circumstances, appellants remained personally liable for payments of the partnership’s debts. Carnes v. Mobley’s Tire &c. Svc., 134 Ga. App. 913, 914 (216 SE2d 703). See Jones v. Burlington Indus., 196 Ga. App. 834, 835-838 (397 SE2d 174).

Decided March 1, 1991.

Horne & Rice, M. Barton Rice, Jr., Dious, Bailey & Associates, I. Kenneth Dious, for appellants.

W. Christopher Bracken III, for appellee.

2. Although appellants contend that the trial court erred by ruling that this case was an open account, and not an action for breach of contract, the record shows a pattern of billings and payments by appellants. That was sufficient to establish a prima facie case of an action on an open account (Andrews v. Adams Drive, Ltd., 142 Ga. App. 32 (234 SE2d 835)), and the record adequately supports the trial court’s findings against appellants. OCGA § 9-11-52 (a); Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 545-546 (382 SE2d 388). Accordingly, this enumeration of error is without merit.

3. Except as it may be incorporated in Division 2, appellants’ enumeration of error asserting that State Farm failed to prove its damages according to the written contract of insurance is not supported by argument or citation of authority. Accordingly, it is deemed abandoned. Court of Appeals Rule 15 (c) (2); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564).

Further in the argument section of their brief, appellants have extended their arguments to issues not raised in their enumerations of error. Enumerations of error cannot be enlarged at the appellate level by statements in the brief of counsel, and thus these assertions not enumerated as error were not preserved for consideration on appeal. Ailion v. Wade, 190 Ga. App. 151, 155 (378 SE2d 507).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A90A1706.
    BAIRD v. THE STATE.
    (402 SE2d 802)
   Pope, Judge.

Defendant Andrew Baird was convicted of shoplifting, carrying a concealed weapon and carrying a pistol without a license. The record shows defendant was stopped by a store employee as he was about to exit the store because the employee suspected him of shoplifting. When questioned by the employee, defendant denied concealing any store property but revealed that he was carrying a pistol beneath his coat. Defendant eventually admitted taking store property and agreed to sign a written admission on a form provided by the store. By the time defendant actually signed the written statement, a police officer arrived and was present in the room with defendant and the store employee. Although the statement was obtained by the store employee and not the police officer, the officer testified at the admissibility hearing that defendant was under arrest at the time he signed the statement. Thus, the trial court excluded from evidence the written admission of shoplifting because the evidence did not establish the defendant had been properly advised of his constitutional rights.

Decided March 1, 1991.

Kathleen J. Anderson, for appellant.

Ken Stula, Solicitor, J. Michael Bass, Assistant Solicitor, for appellee.

After the statement was signed but before the officer interrogated defendant, the officer read defendant his rights and defendant responded that he understood them but made no request for an attorney. Defendant went on to make oral statements to the officer relating only to the weapon charges. These statements were admitted at trial. Citing Smith v. State, 132 Ga. App. 491 (208 SE2d 351) (1974), defendant argues on appeal that the insufficient showing of a waiver of his constitutional rights as to the first written statement also taints the admissibility of the second oral statement and that the trial court erred in admitting testimony regarding the oral statements made to the officer.

The facts of this case are materially distinguishable from those in Smith. In Smith the State did not demonstrate that the admissions made after the initially tainted confession were obtained by means sufficient to “purge” the taint. A statement improperly obtained, and therefore inadmissible, does not necessarily taint a subsequent statement made after proper warnings and a knowing and voluntary waiver of rights. Oregon v. Elstad, 470 U. S. 298 (105 SC 1285, 84 LE2d 222) (1985). Here, the evidence shows the officer properly informed defendant of his constitutional rights and the defendant acknowledged his understanding and waiver of those rights before the oral statements were made. Moreover, the oral statements made after a proper warning and waiver of rights related only to the weapon charges and were unrelated to the shoplifting charge which was the subject of the inadmissible written statement. Because no evidence was presented that the trial court’s ruling on the admissibility of the oral statement was clearly erroneous or an abuse of discretion, the ruling is affirmed. See Sanborn v. State, 251 Ga. 169 (2) (304 SE2d 377) (1983).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Banke, Presiding Judge.

text:
    A90A1875.
    BYARS v. THE STATE.
    (403 SE2d 82)
   Banke, Presiding Judge.

The appellant was found guilty of statutory rape and child molestation; however, the child molestation conviction was merged into the statutory rape conviction for sentencing. The appellant brings this appeal from the denial of his motion for new trial.

The alleged victim testified that the appellant had sexual intercourse with her one evening when she was left alone with him and his younger brother in their house. The victim’s mother testified that she had left her daughter with the appellant and his younger brother for about an hour one evening in January of 1989, while she and the appellant’s mother went shopping. The appellant testified that he spent most of his time on this occasion talking to his girl friend on the phone, and he denied having had sex with the victim. It was shown that the victim had undergone an abortion on July 1, 1989, at which time she was 24 to 25 weeks pregnant, and that before the abortion she had told her cousin that the appellant was the one who had gotten her pregnant. Held:

1. The appellant contends that the trial court erred in refusing to direct a verdict of acquittal on the statutory rape count due to the absence of any evidence corroborating the alleged victim’s testimony. See generally OCGA § 16-6-3. However, only the fact of the commission of the offense of statutory rape must be corroborated by other evidence; “ ‘ “[Corroborating identification evidence is not necessary” in statutory rape prosecutions.’ [Cit.] . . . ‘The quantum of corroboration needed in a rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. . . . Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.’ [Cit.]” Hill v. State, 159 Ga. App. 489 (283 SE2d 703) (1981). See also McClendon v. State, 187 Ga. App. 666 (371 SE2d 139) (1988).

We hold that the victim’s prior consistent statements to her cousin that the appellant had gotten her pregnant, combined with the other evidence showing that a pregnancy had in fact occurred and that the appellant had the opportunity to cause it, constituted sufficient corroboration of the victim’s testimony at trial to support the statutory rape conviction. Accord Long v. State, 189 Ga. App. 131, 132 (375 SE2d 274) (1988). Believing that the evidence as a whole was sufficient to enable a rational trier of fact to find the appellant guilty of the offense beyond a reasonable doubt, we accordingly hold that the trial court did not err in denying his motion for directed verdict of acquittal. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the trial court erred in admitting into evidence an incriminating statement he had made to a police detective without benefit of the Miranda warnings. The appellant had surrendered himself to police approximately a month after the issuance of the warrant for his arrest for the offenses for which he was on trial. He was neither questioned nor given the Miranda warnings at that time, and there was no evidence that he requested an attorney. The detective in question also worked as a security guard at high school football games, and he subsequently spoke with the appellant at such a game. He testified that the appellant was with a companion at the time and that the two of them were smiling and cutting up. While he did not remember who had initiated the conversation, he stated that the appellant’s companion made reference to his [the detective’s] inability to “get [his] hands on” the appellant during the month subsequent to the issuance of the arrest warrant and that the appellant responded by making some comments about the bond, following which he (the appellant) stated: “It wasn’t no rape. Everybody in the neighborhood had some of that. ...” The detective testified that the appellant was not in custody at the time but was free to and ultimately did walk away from the conversation.

The court was clearly authorized to conclude under these circumstances that the statement was voluntary, that the appellant was neither in custody nor responding to interrogation at the time he made it, and that the Miranda warnings accordingly were not required. See generally Wilburn v. State, 230 Ga. 675 (2) (198 SE2d 857) (1973); Williams v. State, 249 Ga. 839, 842 (295 SE2d 74) (1982). Moreover, because this testimony was introduced by the state in rebuttal, after the appellant denied having had sex with the victim, it would have been admissible for impeachment purposes under Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971), even had the Miranda warnings been required.

3. The appellant contends that the trial court erred in admitting testimony that he had been involved in a prior, forcible rape which had occurred in 1987. The alleged victim of this offense testified that the appellant and another individual had raped her at gunpoint.

“The rule allowing similar transaction evidence ‘has been most liberally extended in the area of sexual offenses,’ Johnson v. State, 242 Ga. 649, 652-653 (250 SE2d 394) (1978); and this court has held that the ‘sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.’ [Cit.] Smith v. State, 193 Ga. App. 196, 198 (5) (387 SE2d 571) (1989).” Jackson v. State, 198 Ga. App. 447, 448 ( SE2d ) (1991). See also Brown v. State, 173 Ga. App. 640, 641 (3) (327 SE2d 515) (1985) (evidence of prior forcible rape committed against victim over the age of sexual consent held admissible in statutory rape case). Noting that the victim of the prior rape was 15 when the offense occurred, only two years older than the victim in the present case, we hold that the trial court did not err in admitting the testimony in question as similar transaction evidence. See Davis v. State, 249 Ga. 309, 311 (1) (290 SE2d 273) (1982).

Decided March 1, 1991.

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, H. Harold Chambers, Jr., Leigh E. Patterson, Assistant District Attorneys, for appellee.

4. The appellant contends that the court erred in admitting evidence concerning an incriminating in-custody statement he had made to police during their investigation of the prior rape, due to the state’s failure to produce the statement in response to his request, made pursuant to OCGA § 17-7-210, for copies of any statements given by him while in police custody. The state contends that it was not required to provide the appellant with a copy of the statement because it did not concern the offense for which he was on trial.

OCGA § 17-7-210 (a) provides that upon written request “the defendant shall be entitled to have a copy of any statement given by him while in police custody.” (Emphasis supplied.) Subsection (c) of the statute provides that “[fjailure of the prosecution to comply with a defendant’s timely written request for a copy of his statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution’s use in its case-in-chief or in rebuttal.” Since the statute applies by its terms to “any” statement given by the defendant while in police custody, and since the appellant made a timely request pursuant to OCGA § 17-7-210 for copies of such statements, we hold that the trial court erred in allowing the statement in question to be introduced against him during the trial.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A1906, A90A1907.
    KNISELY et al. v. GASSER et al.; and vice versa.
    (403 SE2d 85)
   McMurray, Presiding Judge.

Kurt A. Knisely and his wife (plaintiffs) sued John J. Gasser and Mary Lou Gasser (defendants) for damages which allegedly resulted after plaintiff Kurt A. Knisely fell down an unlighted and “unguarded stairwell” at defendants’ home. Defendants denied the material allegations of the complaint and the parties subsequently filed opposing motions for summary judgment. Depositions were filed and the pertinent evidence revealed the following:

Plaintiffs were socially acquainted with defendants for a number of years before the incident which forms the basis of the case sub judice. On July 12, 1986, defendants attended the wedding of plaintiffs’ son at “the Hellenic Center on Cheshire Bridge Road.” Defendants invited plaintiffs to stay at their home in Atlanta after the wedding “rather than drive all the way back to [plaintiffs’ home in] Danielsville[, Georgia].” After the wedding reception ended at about 11:30 that evening, plaintiffs went with defendant Mary Lou Gasser to defendants’ home. (Defendant John J. Gasser was then taking the bride and groom to the airport.) Defendant Mary Lou Gasser did not have the keys to her house and, according to plaintiff Kurt A. Knisely, defendant Mary Lou Gasser suggested, “ ‘Why don’t we . . . see if there’s an open window or an open door, so we can get in the house.’ ” Plaintiff Kurt A. Knisely then went to “the back wall of the house where the windows are located, to try and find an open one [and he] just took a step and there was nothing there. ...” Plaintiff fell down an unguarded and unlighted stairwell leading to defendants’ basement that was about “seven or eight feet [deep].” He did not see the stairwell because he was looking for an open window and because it was very dark. Plaintiff Kurt A. Knisely sustained injuries which required hospitalization.

The trial court granted plaintiffs’ motion for summary judgment as to liability and denied defendants’ motion for summary judgment. The case was later tried before a jury on the issue of damages and the following special verdict was returned: “We, the jury, find in favor of the Plaintiffs and against the Defendants in the following amounts: Past medical expenses [and] tuxedo $2389.00 Past loss of income $1283.00 Pain and suffering past 0 Pain and suffering future O Loss of consortium 0.” The trial court entered judgment on the verdict and plaintiffs filed a motion for new trial. The motion for new trial was denied and plaintiffs appealed in Case No. A90A1906. Defendants cross-appealed in Case No. A90A1907. Held:

Case No. A90A1906

1. In two enumerations plaintiffs contend the trial court erred in denying their motion for new trial, arguing that the jury’s verdict is inconsistent and illegal in failing to award damages for pain and suffering and for loss of consortium. More specifically, plaintiffs argue that the verdict awarding them no damages for pain and suffering and loss of consortium is inconsistent with the evidence and with the jury’s award for medical expenses. See Ray v, Stinson, 172 Ga. App. 718 (324 SE2d 506), and arguments asserted therein.

The jury returned their award on a special verdict form which was not challenged by plaintiffs’ attorney when it was discussed at the charge conference. During the charge to the jury, the trial court instructed the jury as to the special verdict form and plaintiffs’ counsel did not then object to the special verdict form. After the return of the verdict which plaintiffs contend is invalid on its face, counsel for plaintiffs did not object and, after examining the jury’s verdict, he responded that the verdict was “fine as to form.” “Under these circumstances, we hold that the claim to a new trial on the basis of the form of the verdict has been waived and [that] it is [therefore] unnecessary to reach the merits of [plaintiffs’ contentions].” Ray v. Stinson, 254 Ga. 375 (329 SE2d 502). See Tomlinson v. State of Ga., 193 Ga.' App. 123 (1), 124 (387 SE2d 49).

Case No. A90A1907

2. Defendants first contend, in their cross-appeal, that the trial court erred in “denying [their] motion for summary judgment holding that [plaintiffs], who were spending the night with [defendants] after attending a wedding party and having consumed alcohol, were not social guests but invitees when [plaintiff Kurt A. Knisely] fell down an unlighted stairwell in [defendants’] back yard.”

“ ‘The elements of legal liability of the owner or proprietor of premises for injuries occasioned to persons thereon, vary according to whether the person injured was, at the time of the injury, a trespasser, a licensee, a visitor under invitation, express or implied, or a person standing in some special relation recognized by law.’ Mandeville Mills v. Dale, 2 Ga. App. 607 (1) (58 SE 1060) (1907). The owner or proprietor of premises is liable to a licensee only for wilful or wanton injury. Code Ann. § 105-402 [now OCGA § 51-3-2], As to an invitee, the owner or proprietor owes the duty to exercise ordinary care. Code Ann. § 105-401 [now OCGA § 51-3-1].

“ ‘(W)hether a person is an invitee or a licensee depends upon the nature of his relation or contact with the owner ... of the premises.’ Chatham v. Larkins, 134 Ga. App. 856, 857 (216 SE2d 677) (1975). If the relationship solely benefits the injured person, he is at most a licensee. Chatham v. Larkins, supra; Code Ann. § 105-402 [now OCGA § 51-3-2], If the relationship is one of mutual interest to the parties, the injured party is an invitee of the owner. Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 291 (30 SE2d 426) (1944); Code Ann. § 105-401 [now OCGA § 51-3-1].” Frankel v. Antman, 157 Ga. App. 26, 27 (276 SE2d 87).

In the case sub judice, plaintiffs were social guests of defendants on the night of plaintiff Kurt A. Knisely’s injuries and plaintiffs were then at defendants’ home for their own convenience, i.e., so that plaintiffs would not have to drive to their home in Danielsville, Georgia. Under these circumstances, plaintiff Kurt A. Knisely was a licensee at the time of his fall, not an invitee. OCGA § 51-3-2 (a). Accordingly, defendants’ responsibility to plaintiff Kurt A. Knisely was as follows:

“ ‘The occupier is subject to liability to a licensee for injury caused by a condition on the property if the occupier (a) knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to the licensee, and should expect the licensee will not realize the danger; and (b) fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and risk involved; and (c) the licensee does not know or have reason to know of the condition and the risk.’ Patterson v. Thomas, 118 Ga. App. 326 (163 SE2d 331) (1968).” Cummings v. Grubb, 184 Ga. App. 872, 875 (363 SE2d 167). In the case sub judice, defendants argue that the open stairwell did not rise to the level of wilful and wanton negligence and that, even if it did, plaintiff Kurt A. Knisely had equal knowledge of the hazard and did not exercise ordinary care in traversing near the stairwell. These arguments are without merit.

Defendant Mary Lou Gasser affirmed on cross-examination in her deposition, taken at the instance of plaintiffs, that on the night of plaintiff Kurt A. Knisely’s fall the stairwell was unlighted; that it was seven or eight feet deep; that no railing or shrubbery was around it and that if a person was not aware of the stairwell he “may walk right [into it] and fall down.” Defendant Mary Lou Gasser further testified that they “just neglected ...” the area around the stairwell because it was “too much . . .” work. Plaintiff Kurt A. Knisely testified on cross-examination during his deposition, taken at the instance of defendants, that he regularly visited at defendants’ house when he and his family resided near defendants several years before his fall, but that in recent years he only visited at defendants’ home “[a] couple times a year[.]” Plaintiff Kurt A. Knisely further testified that he has been to defendants’ back yard, but that it was “many years . . .” before the fall. (Defendants’ attorney did not question plaintiff Kurt. A. Knisely during the deposition as to whether he was familiar or even aware of the open stairwell.) This evidence and other conflicting testimony as to plaintiff Kurt A. Knisely’s knowledge of the open stairwell presented, at the very least, genuine issues of material fact as to whether the open stairwell was an unreasonable risk of harm to licensees and whether plaintiff Kurt A. Knisely was aware of the danger. Consequently, the trial court did not err in denying defendants’ motion for summary judgment.

3. Defendants state in their brief and enumeration of errors that they do not seek a new trial; that they are satisfied with the jury’s verdict and that they only wish to pursue their second and third enumerations in the event that plaintiffs prevail in Case No. A90A1906. Under these circumstances, defendants’ second and third enumerations are deemed withdrawn.

Decided March 1, 1991.

Kenneth L. Baer, for appellants.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellees.

Judgment affirmed in Case No. A90A1906 and in Case No. A90A1907.

Sognier, C. J., and Carley, J., concur.


text:
    A90A1927.
    KELLEY v. THE STATE.
    (403 SE2d 246)
   Pope, Judge.

Defendant Calvin Lamar Kelley was convicted of trafficking in cocaine and appeals. We affirm.

Construed so as to support the verdict, the evidence adduced at trial shows the following: On April 3, 1987, local and state law enforcement officials conducted a search of the mobile home where defendant and his wife lived. The search was conducted pursuant to a warrant. Defendant, who was asleep in a back bedroom at the time officers entered the mobile home, was the only occupant present at the time the search was conducted. A substance subsequently identified as 130.9 grams of “crack” cocaine was found in the pillow case of one of the pillows on the bed where defendant was sleeping. Another 19.2 grams of crack cocaine were found in a gauze box on the dresser in the bedroom. Officers found a pair of scales in the living room, and cash totalling $9,000 was found in various places throughout the mobile home. Defendant testified at trial that he had no knowledge that the contraband was in his home.

1. Defendant first contends that the trial court erred by refusing to empanel a new jury because the prosecution failed to give adequate racially-neutral explanations after exercising all of its peremptory challenges to strike blacks from the jury, in contravention of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). “When [a Batson challenge] is made the defendant has the burden to complete the record with information revealing the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury. Aldridge v. State, 258 Ga. 75[, 77 (4)] (365 SE2d 111) (1988).” Harris v. State, 186 Ga. App. 756, 757 (2) (368 SE2d 527) (1988). This the defendant did not do. The record in this case shows only that the State used seven of its ten peremptory challenges and that it exercised the seven strikes to remove members of defendant’s race from the jury. Prior to denying defendant’s motion the trial court stated that the jury was “more than evenly divided black and white” and that it was “properly comprised.” The State also noted that “the jury is either representative of or has a greater percentage of blacks in the actual jury than what appeared in the jury pool.” From the record before us, we have no choice but to conclude that the defendant failed to establish a prima facie showing of discrimination.

Defendant, relying on Williams v. State, 258 Ga. 80 (3) (365 SE2d 408) (1988), argues he was not required to establish a prima facie case of discrimination because the trial court in this case proceeded with the second phase of the Batson hearing by allowing the State to give its reasons for each of the peremptory strikes. However, the court in Williams simply “commended and endorsed” the procedure of requiring the State to give its reasons for exercising its peremptory challenges even in those cases in which the trial court determines that the defendant has not made out a prima facie case of discrimination. Id. at fn. 2. Moreover, contrary to defendant’s assertions on appeal, Williams clearly stands for the proposition that the appellate courts are not required to review the trial court’s findings as to the State’s reasons for exercising its peremptory challenges where the defendant has failed to establish a prima facie case of discrimination, such as the case at bar. See also Solomon v. State, 195 Ga. App. 882 (1) (395 SE2d 335) (1990). This enumeration is without merit.

2. Defendant next contends the trial court erred in denying his motion for directed verdict of acquittal on the basis that the evidence adduced against him at trial was insufficient to show his knowing actual possession of the contraband.

“Because this case arose prior to March 28, 1988, the effective date of the amendment of OCGA § 16-13-31, it was incumbent upon the State to prove [defendant’s] actual possession. See Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988); Coleman v. State, 189 Ga. App. 366, 368 (7) (375 SE2d 663) (1988). However, the legislature did not intend the phrase actual possession to mean that a person would be holding the contraband in his hand or have it physically on his person. (Cits.) The evidence was sufficient for a rational trier of fact to find [defendant] guilty beyond a reasonable doubt of the crime charged [and thus the trial court did not err in denying defendant’s motion for directed verdict of acquittal]. (Cits.)” (Punctuation omitted.) Allen v. State, 193 Ga. App. 16, 17 (2) (387 SE2d 11) (1989).

3. Lastly, defendant contends the trial court erred by not charging the jury on simple possession. The record shows that defendant did not submit a written request to charge on simple possession, see Lovell v. State, 189 Ga. App. 311 (4) (375 SE2d 658) (1988), but apparently orally requested such a charge during the charge conference, as evidenced by defense counsel’s objections following the court’s charge to the jury. The transcript shows the trial court, after defining the terms actual and constructive possession, properly charged the jury in this case that defendant could be convicted of trafficking in cocaine only if he was in knowing, actual possession of the contraband; the court specifically charged the jury that defendant could not be guilty of the crime of trafficking in cocaine based on constructive possession of the contraband. Thus, under the charge as given the jury was required to return a verdict of acquittal if it found only constructive possession of the contraband by defendant. Under these circumstances we fail to see how defendant has been harmed by the trial court’s failure to give the requested charge and thus find no reversible error under the circumstances of this case.

Decided March 1, 1991.

Michael C. Garrett, for appellant.

Michael C. Eubanks, District Attorney, Barbara A. Smith, Richard E. Thomas, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A90A2018.
    BARRON v. SPANIER et al.
    (403 SE2d 88)
   Pope, Judge.

Plaintiff Sarah Barron filed a complaint for medical malpractice against defendant Jacob Spanier, M.D., on August 21, 1989. Defendant filed a timely answer and served interrogatories upon plaintiff on October 23, 1989. When a timely response was not received, defendant’s attorney made a good faith effort to resolve the matter, as required by Rule 6.4 (B) of the Uniform Superior Court Rules, by writing a letter to plaintiff’s attorney requesting a response by December 11, 1989. The secretary for plaintiff’s attorney called defendant’s attorney and advised him that a response would be served by December 15. Defendant filed a motion to dismiss for total failure to respond to his discovery request on December 28, 1989. Finally, a response to defendant’s interrogatories was served January 9, 1990. The only argument in opposition to defendant’s motion to dismiss, raised by plaintiff in a brief which was untimely filed, was that the motion to compel could not be granted because defendant did not first obtain an order compelling plaintiff to respond to discovery. Plaintiff appeals the order dismissing the complaint.

The appellate courts of this state have repeatedly held that a total failure to respond to a discovery request subjects a party to immediate sanctions pursuant to OCGA § 9-11-37 (d). See, e.g., Mayer v. Interstate Fire Ins. Co., 243 Ga. 436 (254 SE2d 825) (1979); Bryant v. Nationwide Ins. Co., 183 Ga. App. 577 (359 SE2d 441) (1987); Vlasz v. Schweikhardt, 178 Ga. App. 512 (2) (343 SE2d 749) (1986); Danger v. Strother, 171 Ga. App. 607 (1) (320 SE2d 613) (1984); Wetherington v. Koepenick &c., 153 Ga. App. 302 (1) (265 SE2d 107) (1980). Thus, contrary to plaintiff’s argument below, defendant was not required first to obtain an order compelling plaintiff to respond to his interrogatories. Nor does the fact that plaintiff ultimately filed a response after defendant filed his motion to dismiss save plaintiff from the sanction of dismissal. See Singleton v. Eastern Carriers, 192 Ga. App. 227 (3) (384 SE2d 202) (1989); Danger v. Strother, supra at (2); Rucker v. Blakey, 157 Ga. App. 615 (278 SE2d 158) (1981).

Decided March 1, 1991.

Carl A. Johnston, for appellant.

Love & Willingham, John A. Gilleland, Thomas K. Foster, for appellees.

On appeal, plaintiff argues the trial court erred in finding the failure to respond was wilful; but no explanation or excuse is offered for plaintiff’s failure except for admitting the failure was careless and showed unvigorous prosecution of the case. “There is no requirement that the [party subject to sanctions] display and the trial court find actual ‘wilfulness;’ The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.” (Citations and punctuation omitted.) Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988). Where, as here, the only reason set forth by the party who failed to respond to discovery does not show the failure was accidental or involuntary, dismissal is appropriate. See Evans v. East Coast Intermodal &c., 191 Ga. App. 749 (382 SE2d 743) (1989). See also Wetherington v. Koepenick &c., supra.

Because the applicable law is indisputably clear and plaintiff’s appeal has no arguable merit we impose a penalty for frivolous appeal, pursuant to Rule 26 (b) of the Rules of the Court of Appeals, and we direct the trial court to impose upon plaintiff a penalty of $500 upon receipt of the remittitur.

Judgment affirmed with direction.

Beasley and Andrews, JJ., concur.


text:
    A90A2043.
    LOKEY v. TRUST COMPANY BANK OF SOUTH GEORGIA, N.A.
    (402 SE2d 803)
   Banke, Presiding Judge.

The appellee bank filed suit against the appellant seeking to collect the balance due on a promissory note the latter had co-signed with her husband for the purpose of enabling him to purchase a boat and pay off a car loan. In her answer, the appellant alleged that the bank had fraudulently induced her to sign the note in her capacity as guardian of her daughter, Jill Edwards, despite its awareness that she “had no authority from the Probate Court... to enter into any type of agreement in her capacity as guardian of her daughter,” and she asserted that as a result of this conduct, the bank was now estopped from attempting to hold her liable on the obligation in her individual capacity. The trial court awarded the bank summary judgment, and this appeal followed.

Both in her answer and in an affidavit submitted in opposition to the bank’s motion for summary judgment, the appellant asserted that when she came to the bank with her husband to co-sign the note, the bank officer suggested that she pledge as collateral a certificate of deposit belonging to her daughter which was on deposit at the bank, in order to enable her husband to secure the loan at a cheaper interest rate. She asserted that the officer encouraged her to do this notwithstanding her protestations that she did not have the legal authority to obligate her daughter on such a loan or to pledge her daughter’s certificate of deposit as security for such an obligation. The appellant’s signature on the note is followed by the hand-printed notation, “Guard. Jill Edwards.” She averred in her affidavit that this phrase “was prepared and added to her signature after she signed the same but based on the recommendation of” the bank officer.

After the appellant’s husband defaulted on the note, the bank initially attempted to offset the certificate of deposit against the balance due on the indebtedness. However, it thereafter released these funds to the appellant in her capacity as the child’s guardian in return for her agreement not to bring suit against it for its conduct in this regard. Held:

It is evident from the appellant’s complaint and affidavit, as well as from her brief on appeal, that she fully intended, from the outset, to obligate herself on the note as an accommodation party. She does not allege that any false representation was made to her to do this, only that the bank officer induced her to do so in her capacity as guardian of her minor child and to assign the child’s certificate of deposit as collateral for the debt in order to enable her husband to obtain the loan at a lower interest rate. It is thus apparent that, but for the bank’s alleged misconduct, she would simply have co-signed the note in her individual capacity. Indeed, she indicates in her answer that this is precisely what she intended to do and that the guardianship notation was placed beside her signature later, without her knowledge. Under these circumstances, it is difficult to comprehend how she can claim to have been injured by the bank’s conduct.

Decided March 1, 1991.

Donald E. Strickland, for appellant.

Gardner, Willis, Sweat & Goldsmith, Willis A. Duvall, Jr., for appellee.

“ ‘[A]s to trustees, guardians, executors and administrators, and other persons acting en autre droit they are by our law generally held personally liable on promissory notes, because they have no authority to bind, ex directo the persons for whom, or for whose benefit, or for whose estate they act; and hence to give any validity to a note they must be deemed personally bound as makers.’ ” Howard v. Cassels, 105 Ga. 412, 415 (31 SE 562) (1898). Cf. OCGA § 29-2-20. Based on the undisputed evidence of record in the case, the trial court was authorized to conclude that, whether she intended to co-sign the note in her individual capacity or whether she intended to do so in her capacity as her daughter’s guardian, the appellant became personally bound on the obligation as a matter of law.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur. Birdsong, P. J., disqualified.


text:
    A90A2064.
    WALTON v. HOWARD.
    (403 SE2d 90)
   Pope, Judge.

Plaintiff Ronnie Howard entered into a contract entitled “Lease/ Purchase Agreement” with defendant Danny Walton regarding a John Deere tractor. According to the terms of the agreement Walton agreed to “sell” the equipment to Howard for Howard’s promise to pay off the amount in arrears Walton owed to John Deere Finance Plans, Inc., and to take over future monthly installment payments owed on the equipment until the financing agreement between Walton and John Deere was paid off. The agreement granted Howard the right to a bill of sale for the equipment upon payment of $1 and other consideration once the lien in favor of John Deere was paid off. In the interim, the monthly payments were considered “lease payments” as between Walton and Howard. The agreement imposed upon Howard the duty to pay taxes and insurance on the equipment. The evidence also shows Howard paid Walton $4,000 for Walton’s equity in the equipment.

Howard made six monthly payments of over $1,000 to John Deere before falling into arrears. When Howard was three months behind in payments Walton repossessed the equipment and retained it in his possession without notice of intent either to retain the collateral in satisfaction of the debt or to dispose of it to satisfy the debt. Howard brought suit against Walton for breach of contract or, in the alternative, for judgment ordering Walton to return the equipment. After a hearing the trial judge found the written agreement to be a security agreement subject to Georgia’s Commercial Code and granted plaintiff the right to redeem the collateral upon payment of the remaining debt plus $400 for interest on the sum paid by Walton to John Deere to extinguish the lien. Walton appeals.

1. We find no error in the trial court’s finding that the agreement was a secured transaction. The agreement granted Howard the right to purchase the equipment for a nominal sum after the final monthly installment payment was made to John Deere. Pursuant to the definition of “security interest” in Georgia’s Commercial Code, “an agreement that upon compliance with the terms of the lease, the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.” OCGA § 11-1-201 (37). Additional factors which tend to establish that a transaction is a. conditional sale instead of a true lease include an initial down payment and the requirement that the lessee be responsible for payment of taxes and insurance. Ford Motor Credit Co. v. Dowdy, 159 Ga. App. 666 (284 SE2d 679) (1981), overruled on other grounds, Adams v. D&D Leasing Co., 191 Ga. App. 121 (1) (381 SE2d 94) (1989). In this case, the evidence shows Howard, referred to in the agreement as “Lessee/ Buyer,” made a down payment of $4,000 to compensate Walton, the “Lessor/Seller,” for his equity interest in the equipment. The agreement also required Howard to pay taxes and insurance. Because ample evidence was presented to support the finding that the agreement created a security interest we affirm the findings of fact on this issue. See Mann Investment Co. v. Columbia Nitrogen Corp., 173 Ga. App. 77 (1) (325 SE2d 612) (1984).

2. Having determined that the agreement created a security interest, then the trial court did not err in finding the agreement was subject to Article 9 of the Commercial Code, including OCGA § 11-9-506. Pursuant to said statute, the court did not err in awarding Howard the right to redeem the equipment upon payment of the amount due under the agreement ($6,954) plus $400 for interest (or loss of use of funds) to Walton for paying off the lien on the equipment.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Decided March 1, 1991.

Johnny B. Mostiler, for appellant.

Hemmann & Hemmann, Paul E. Hemmann, Alfred D. Fears, for appellee.


text:
    A90A2071.
    MERRILL et al. v. EIBERGER.
    (403 SE2d 91)
   Birdsong, Presiding Judge.

W. Harrison Merrill and Vanguard Management Corporation (“Merrill & Vanguard”) appeal from the trial court’s judgment in their favor in a proceeding brought by Eiberger to confirm a foreclosure sale. Although the trial court refused to confirm the sale of the property because the property did not bring its true market value, Merrill and Vanguard appeal because they assert that certain rulings on other issues raised in their motion to dismiss may prejudice their litigation posture in other cases. Nevertheless, appellants do not seek reversal of the trial court’s judgment. Held:

This court serves to correct errors of the trial court. It is a well established principle, however, that for errors to require reversal they must be harmful. See OCGA § 9-11-61; Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892). In this case even if the trial court erred by denying appellants’ motion to dismiss, it is plain that appellants suffered no prejudice in this case because they prevailed on the merits.

It is not our function to provide advisory opinions on other issues which potentially may arise in other litigation, or to assure that all errors are corrected regardless of the lack of prejudice to the parties. See Board of Trustees &c. v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720); Sentry Ins. v. Majeed, 194 Ga. App. 276, 277-278 (390 SE2d 269). Moreover, since appellants prevailed in this case, the doctrine of res judicata will operate in their favor (see OCGA § 9-12-40; Trend Dev. Corp. v. Douglas County, 259 Ga. 425, 427 (383 SE2d 123)) and will not affect other litigation between these parties on other contracts.

As no party to this appeal seeks reversal of the judgment of the trial court, the issues presented are moot. “A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights. . . . This court will upon its own motion dismiss an appeal where it affirmatively appears that a decision would be of no benefit to the complaining party. The fact that the appellants might possibly derive some future benefit from a favorable adjudication on an abstract question will not require this court to retain and decide the case.” (Citations and punctuation omitted.) Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241). Accordingly, this appeal must be dismissed. OCGA § 5-6-48 (b) (3).

Decided March 1, 1991.

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellants.

Troutman, Sanders, Lockerman & Ashmore, William T. Plybon, Norton, Pennington, Goetz & Cronkright, John C. Pennington, for appellee.

Appeal dismissed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2269.
    MEHAVIER v. TAHAMTAN.
    (403 SE2d 92)
   Banke, Presiding Judge.

The appellant successfully sued the appellee, his former landlord, in magistrate court to recover a $550 security deposit. The appellee appealed to state court, where the appellant filed an amended complaint seeking treble damages and attorney fees pursuant to OCGA § 44-7-35, based on allegations that the appellee had retained the deposit for more than a month following the termination of the lease without giving him a written statement of his reasons for doing so. Approximately a week later, on March 30, 1990, the appellee telephoned the appellant’s counsel to advise him that he intended to dismiss the appeal and to send the appellant a check for $550. On April 2, 1990, which was the next business day, the appellant filed a written objection to the dismissal based on OCGA § 5-3-29, which provides that in de novo appeals “either party is entitled to be heard on the whole merits of the case.” Although the appellant tendered the check to the state court uncashed approximately two weeks later, when the case was called for trial, the judge ruled that by his silence and retention of the uncashed check during that period, he had accepted it in settlement of his claim. We granted the appellant’s application for a discretionary appeal from that ruling. Held:

In American Oil Co. v. Studstill, 230 Ga. 305 (196 SE2d 847) (1973), the Georgia Supreme Court held that the mere retention of a check offered in settlement of a claim, without presenting it for payment, does not, as a matter of law, constitute an acceptance of the check in satisfaction of the claim, unless in a separate writing the claimant “acknowledges receipt and retention of the check for the purpose tendered. . . .” Id. at 306. Not only did the appellant in the present case not execute such an acknowledgment, he promptly indicated his rejection of the settlement offer by filing an objection to the proposed dismissal of the case. Under these circumstances, we find no evidentiary support for the trial court’s finding that the appellant’s retention of the check, uncashed, for a period of approximately two weeks pending the scheduled trial date, manifested an acceptance of it in satisfaction of his claim for treble damages.

Decided March 1, 1991.

Hollingsworth & Associates, Jason T. Schneider, Tony Blair, for appellant.

Amir Tahamtan, pro se.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


author: Carley, Judge.

text:
    A90A2227.
    LEWIS v. THE STATE.
    (403 SE2d 233)
   Carley, Judge.

Appellant was tried before a jury and found guilty of three counts of distributing crack cocaine. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdict of guilt.

1. Over appellant’s chain-of-custody objection, the trial court admitted into evidence cocaine identified as that which appellant had sold to an undercover agent on three separate occasions. This evidentiary ruling is enumerated as error.

“ ‘[Wjhere the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence. (Cit.) Hence, the burden is on the prosecution “to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” (Cit.) However, the State need not negate all possibility of tampering [or substitution], and “need only establish reasonable assurance of the identity” of the confiscated evidence. (Cits.)’ [Cit.]” Spead v. State, 187 Ga. App. 359, 360 (1) (370 SE2d 213) (1988). In the instant case, there was no evidence of tampering or substitution, and the undercover officer positively identified the cocaine as that which he received from appellant. See Edwards v. State, 164 Ga. App. 663 (297 SE2d 105) (1982). Compare Meeks v. State, 150 Ga. App. 170 (257 SE2d 27) (1979). The circumstances relied upon by appellant in support of this enumeration relate only to the mere possibility of a break in the chain of custody. “There being, at most, bare speculation of tampering[,] substitution[, or misidentification of the drugs as those which came from appellant], the trial court correctly admitted the cocaine into evidence. [Cit.]” Langham v. State, 196 Ga. App. 71, 72 (1) (395 SE2d 345) (1990). See also Gilbert v. State, 159 Ga. App. 326, 330 (6) (283 SE2d 361) (1981).

2. Appellant enumerates as error the denial of his motion for mistrial predicated upon the purported interjection of impermissible character evidence.

Appellant made no objection when the undercover agent testified on direct examination that he had received a large “quantity of pictures from the chief of police. After an undercover buy was made . . . I would go through these pictures and attempt to identify [the sellers] through the pictures.” “ ‘Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. (Cit.)’ [Cit.]” Eight v. State, 195 Ga. App. 727, 730 (6) (394 SE2d 636) (1990).

When the officer subsequently testified on cross-examination that “[the police chief] furnished me with pictures on police files,” appellant did move for a mistrial. The motion was denied, but the trial court admonished the witness and offered to give curative instructions to the jury. This offer was declined, and appellant did not renew his motion. Thus, appellant waived appellate review of the denial of his motion for mistrial. Gamble v. State, 194 Ga. App. 765, 768 (2) (391 SE2d 801) (1990). Moreover, even if there had been no waiver, “ ‘[a] mere reference to the fact that defendant’s photograph was already in police records, without more, does not inject the defendant’s character into evidence. [Cits.]’ [Cit.]” Washington v. State, 194 Ga. App. 756, 758 (3) (391 SE2d 718) (1990).

3. The trial court’s instruction on the presumption of innocence was not, as appellant contends, erroneously incomplete. See Rigsby v. State, 184 Ga. App. 330, 331 (2) (361 SE2d 694) (1987); Ford v. State, 164 Ga. App. 620 (2) (298 SE2d 327) (1982).

4. In charging on the State’s burden of adducing evidence of appellant’s guilt beyond a reasonable doubt, the trial court did not intimate that a not guilty verdict could not be based upon the presumption of innocence. To the contrary, the trial court correctly charged that the presumption of innocence remained with appellant “throughout the trial of the case and entitle[d] him to an acquittal, that is, a not guilty verdict unless the State over [came] the presumption of innocence by the introduction of evidence which convince [d] [the jury] of his guilt to a moral and reasonable certainty and beyond a reasonable doubt. . . .”

5. Appellant enumerates as error the trial court’s failure, without request, to charge on OCGA § 24-4-6.

“The refusal to give a requested instruction on that code section is not error except when the case is totally dependent upon circumstantial evidence, [cit.]. In the absence of a request, it is not error to fail to charge on OCGA § 24-4-6 where the case is not close or doubtful and the charge on reasonable doubt is full and fair. [Cit.]” (Emphasis supplied.) Heath v. State, 186 Ga. App. 655, 658 (2) (368 SE2d 346) (1988). The instant case is neither close nor doubtful, and the jury instruction that was given on reasonable doubt was full and fair.

Decided February 22, 1991

Rehearing denied March 4, 1991

Allen & Kelly, Roy Benton Allen, Jr., for appellant.

David E. Perry, District Attorney, Howard B. Buchanan, Assistant District Attorney, for appellee.

Appellant’s reliance on Gibson v. State, 150 Ga. App. 718, 719 (6) (258 SE2d 537) (1979) is misplaced. Here, unlike in that case, there was only direct evidence of appellant’s guilt in the form of the testimony of the undercover officer and, if that officer was successfully impeached, there was no additional circumstantial evidence upon which to convict appellant. Accordingly, the trial court did not err in failing or refusing to give the charge. “In the event the jury did find that [the officer] had been impeached the jury was [not] left to decide the defendant’s guilt or innocence entirely from circumstantial evidence without any instruction upon the law of circumstantial evidence [because there was no circumstantial evidence of his guilt]. This, we think, under the circumstances of this case was [not] error.” Horne v. State, 93 Ga. App. 345, 346 (4) (91 SE2d 824) (1956). See also Mayfield v. State, 153 Ga. App. 459, 461 (3) (265 SE2d 366) (1980).

6. The trial court’s charge did not authorize the jury to return a guilty verdict which would be in fatal variance with the allegations of the indictment. The trial court correctly instructed the jury that “[wjhether or not the exact date and any other material allegations [of the indictment] have been proven to your satisfaction and beyond a reasonable doubt is for you ... to decide. And, again . . . the burden is on the [S]tate and if you [find] the [S]tate has not carried that burden and proved his guilt beyond a reasonable doubt, you should find him not guilty.”

7. A rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A90A2017.
    MARTA v. POWELL.
    (402 SE2d 805)
   Birdsong, Presiding Judge.

Pursuant to our grant of authority to appeal under OCGA § 5-6-35 (a), MARTA contends the trial court erred by affirming the award by the State Board of Workers’ Compensation granting John M. Powell an $8,250 lump sum advance of benefits.

The record shows that after Powell received a compensable injury and had received benefits for over 26 weeks, he requested a lump sum advance to redeem his home which was sold at a tax sale. The record also shows, however, that the title to the property is only in Powell’s wife. Although Powell originally requested an advance of $10,360.89 plus attorney fees of $250, he reduced his request to $6,821.91 because he received a tax refund.

MARTA, however, objected to the lump sum advance contending that the advance was not authorized since part of the tax delinquency predated Powell’s injury; Powell’s application was not supported by a sworn affidavit; the advance was to be credited against future benefits when Powell had not been given a permanent partial disability rating; and there was evidence that, contrary to his application, Powell had worked during his purported disability.

After considering the application and MARTA’s response, the full board made the required “best interest/no hardship” findings and awarded Powell a lump sum advance of $8,250. The award directed MARTA to “continue weekly benefits at the rate of $175, until terminated by law, taking credit for the advance upon determination of permanent partial disability by reducing the period during which those benefits are to be paid. This reduction shall be taken at the end of the period.”

MARTA contends that this award is contrary to law. Held:

1. Although no hearing is required before the full board grants a lump sum advance, the award must be based upon competent evidence. Johnson v. Atlanta Dairies Co-op., 172 Ga. App. 403, 404 (323 SE2d 185). As this court has earlier held, this proof contemplates verified documentation. International Energy Structures v. Fennelly, 187 Ga. App. 416, 417 (370 SE2d 523). As Powell’s statement supporting this affidavit was not sworn, the full board abused its discretion by granting the lump sum award over MARTA’s objection. Id. We find the absence of sworn support for the application especially significant in this case as there is other competent evidence showing that Powell’s statement may not have accurately portrayed his financial condition.

2. The full board also erred by approving a lump sum advance against permanent partial disability payments. A rating of permanent partial disability requires a finding that the disability is permanent (State of Ga. v. Birditt, 181 Ga. App. 356, 357 (352 SE2d 203)) and no such finding was made here. Further, lump sum advances against future permanent partial disability payments are authorized only when a permanent impairment rating has been made. Edgeman v. Organic Chem. Corp., 173 Ga. App. 4, 6 (325 SE2d 400). In this case the full board erred by awarding a lump sum advance against future permanent partial disability payments when no finding of permanency and no permanent impairment rating had been made, and, particularly when the record contains evidence that Powell may not have a permanent disability. Accordingly, we find that the trial court erred by affirming the award of the full board.

Decided March 4, 1991.

Sligh, Presmanes . & Jackson, Gregory T. Presmanes, James G. Jackson, for appellant.

Arthur H. Marateck, for appellee.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2197.
    INTERTRUST CORPORATION v. FISCHER IMAGING CORPORATION et al.
    (403 SE2d 94)
   Birdsong, Presiding Judge.

Intertrust Corporation (“Intertrust”) appeals from the judgment of the trial court in favor of Fischer Imaging Corporation (“Fischer”) on the priority of a financing statement. Intertrust contends that Fischer did not properly perfect its purchase money security interest in certain equipment Fischer sold because Fischer filed its UCC-1 statement on March 23, 1989, in Fulton County, and Intertrust contends the financing statement should have been filed in DeKalb County where the purchaser’s principal place of business was located on the date of filing. Held:

1. The first consideration is whether we have jurisdiction in this appeal. Court of Appeals Rule 32 (d); Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (306 SE2d 22). The record shows that after judgment was first entered, Intertrust filed a motion to set aside that judgment because its counsel did not learn that the judgment had been filed until after the time for filing a notice of appeal had expired. After the parties consented to have the earlier judgment set aside and re-entered, the trial court granted Intertrust’s motion and set aside and re-entered the earlier judgment. Thereafter, Intertrust filed a timely notice of appeal.

The issue, however, is not whether Intertrust’s counsel had actual knowledge that judgment was entered, but whether there was compliance with OCGA § 15-6-21 (c). Robinson v. Kemp Motor Sales, 185 Ga. App. 492, 493 (364 SE2d 623); Atlantic-Canadian Corp. v. Hammer &c. Assoc., supra.

Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (269 SE2d 426) requires a finding that notice pursuant to OCGA § 15-6-21 (c) was not provided. In this appeal, although there was no specific finding that notice to Intertrust’s counsel was not made, such a finding is inherent in the trial court’s action and “in the absence of a contrary showing, the trial court will be presumed to have followed the law. [Cits.]” Jones v. Cropps, 197 Ga. App. 313, 315 (398 SE2d 295). Accordingly, we have jurisdiction.

2. Intertrust contends the trial court erred by finding as a matter of fact that at the time Fischer filed its UCC-1 financing statement the purchaser’s primary place of business was in Fulton County rather than DeKalb County and, consequently erred in concluding that Fischer properly perfected its purchase money security interest. See United States of Amer. v. Waterford No. 2 Office Center, 154 Ga. App. 9, 12 (267 SE2d 264). Intertrust asserts that there is no evidence supporting the trial court’s determination that Fischer’s financing statement was properly filed in Fulton County; such determination being predicated on a finding because purchaser “was not actively operating as a business in DeKalb County at the time of Fischer’s filing.”

The record shows that Intertrust had a perfected security interest in the purchaser’s assets, including after-acquired property, and neither party contests the legal sufficiency of the contents of the other’s financing statements. Thus the question centers on whether Fischer properly perfected its purchase money security interest in the property so that its interest had priority over that of Intertrust. Accordingly, the issue is whether Fischer properly filed its financing statement in the county where the purchaser’s primary place of business was located. See OCGA § 11-9-401 (1) (b); In the Matter of Carmichael Enterprises, 334 FSupp. 94 (ND Ga. 1971), aff’d 460 F2d 1405 (5th Cir. 1972).

Intertrust contends the purchaser’s primary place of business was in DeKalb County where Intertrust alleges the purchaser was actually operating its business. Fischer contends, however, it properly filed its financing statement in Fulton County because the purchaser had not started conducting business and the purchaser’s corporate documents on file with the Secretary of State’s office showed its principal office and its registered agent were in Fulton County.

The guiding principles are that findings of fact by the trial court will not be set aside unless they are clearly erroneous (OCGA § 9-11-51 (a)) and the trial court’s findings of fact are as binding on the parties as a jury verdict. Sunn v. Mercury Marine, 166 Ga. App. 567, 568 (305 SE2d 6). As the “clearly erroneous test” is the same as the “any evidence test,” an appellate court will not disturb the trial court’s findings of fact if there is any evidence to support them. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga. App. 544, 546 (382 SE2d 388).

Decided March 4, 1991.

Cofer & Beauchamp, Charles V. Choyce, Jr., Teri A. Simmons, for appellant.

Powell, Goldstein, Frazer & Murphy, Francis A. Landgraff III, David G. Ross, for appellees.

After careful review of the record, we must conclude that there is no evidence supporting the trial court’s finding that the purchaser was not actively operating a business on the date of filing. On the contrary, all the evidence, e.g., putting up a sign, installing equipment, hiring and training employees, seeing patients, etc. shows that the purchaser was operating its business in DeKalb County and nowhere else. Further, the evidence shows that Fischer delivered the equipment to the address in DeKalb County and that Fischer’s records showed that address. The testimony from the purchaser’s agent that the purchaser had not yet started to charge patients at the DeKalb County office for their treatment is not controlling; likewise not controlling is the fact that the Secretary of State’s records show the Fulton County address. In the Matter of Carmichael Enterprises, supra at 99. Consequently, the trial court’s findings of fact are clearly erroneous, and the judgment must be reversed.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2254, A90A2255.
    VINSON v. PIEDMONT HOUSING, INC.; and vice versa.
    (403 SE2d 96)
   Carley, Judge.

Appellant-plaintiff brought suit against appellee-defendant in magistrate court. A judgment was entered in favor of appellant and appellee appealed to the superior court. The case was tried before a jury and a verdict was returned in favor of appellant. However, before judgment was ever entered on this verdict, appellee moved for judgment notwithstanding the verdict and the superior court granted that motion. Appellant applied for a discretionary appeal, and, in Case No.

Decided March 4, 1991.

Lonzy F. Edwards, Brenda C. Youmas, for appellant.

G. B. Moore III, for appellee.

A90A2254, she appeals pursuant to the grant of her application, while in Case No. A90A2255, appellee cross-appeals.

Case No. A90A2254

1. “ ‘A motion for judgment notwithstanding the verdict or for a new trial filed prior to entry of the judgment on the verdict is void.’ [Cit.]” McKeeuer v. State of Ga., 189 Ga. App. 445 (375 SE2d 899) (1988). “[T]he trial court should not . . . have entered a judgment notwithstanding the verdict . . . prior to entry of judgment on the verdict. [Cit.]” Connell v. Long, 248 Ga. 716, 719 (1) (286 SE2d 287) (1982). Accordingly, the superior court’s erroneous grant of appellee’s void motion for judgment notwithstanding the verdict is reversed with direction that judgment be entered on the jury’s verdict. Thereafter, appellant will be entitled to pursue her post-judgment remedies, including the right to file an application for a discretionary appeal from any adverse final judgment in the case.

Case No. A90A2255

2. “A cross-[appeal] is a remedy provided for the successful party in a verdict and judgment to have reviewed adverse rulings made during the trial, ‘in the event his adversary is successful in obtaining a judgment in the [appellate court] which in its effect leaves the case to be tried again in the trial court.’ [Cit.]” Robinson v. Ga. Savings Bank &c. Trust Co., 185 Ga. 688, 700 (8) (196 SE 395) (1938). The effect of our reversal of the main appeal is not to order a retrial in the superior court, and, under such circumstances, “ ‘the settled practice is to dismiss the cross-[appeal].’ [Cits.]” Robinson v. Ga. Savings Bank &c. Trust Co., supra at 700. After the superior court’s compliance with the mandate of our holding in the main appeal, appellee will be entitled to pursue its post-judgment remedies, including the right to file a valid motion for judgment notwithstanding the verdict.

Judgment reversed with direction in Case No. A90A2254. Appeal dismissed in Case No. A90A2255.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A90A2318.
    JOHNSON v. HOUSING AUTHORITY OF ATLANTA.
    (403 SE2d 97)
   Birdsong, Presiding Judge.

Angela Johnson filed this direct appeal from the judgment of the state court affirming, pursuant to the grant of certiorari, the judgment of the magistrate court refusing to open a default against Johnson in a dispossessory action. She contends that the state court erred by finding that OCGA § 44-7-53 (a) prohibits opening defaults in dispossessory actions filed in magistrate court regardless of the language in OCGA §§ 15-10-41 (b) (2) and 15-10-43 (e) suggesting that defaults could be opened. Held:

This issue arises because the 1982 amendment to OCGA § 44-7-53 (a), which eliminated opening of defaults in dispossessory actions, did not include language making certain that the amendment applied in magistrate court notwithstanding any provision to the contrary in OCGA §§ 15-10-41 and 15-10-43. As OCGA § 44-7-53 (a) read after the amendment, it specifically eliminated opening such defaults in courts subject to the Civil Practice Act because by earlier amendments, OCGA § 44-7-53 (a) applied “notwithstanding Code Section 9-11-55.” Johnson argues that because the amendment did not include specific language applicable to magistrate courts, the legislature intended for dispossessory defaults in magistrate court to be treated differently from dispossessories in courts subject to the Civil Practice Act. The state court, however, relying on Avery v. Warrick, 172 Ga. App. 674, 675 (324 SE2d 532) and A. G. Spanos Dev. v. Caras, 170 Ga. App. 243, 244 (316 SE2d 793), found that the magistrate had no authority to open defaults in dispossessory actions because OCGA § 44-7-53 (a) showed the legislature’s intention that tenants who allow dispossessory actions to go into default would not be allowed to open the default thereafter.

The state court did not err. From the course of the amendments to OCGA § 44-7-53 (a), it is clear that the legislature first restricted and ultimately eliminated the opportunity to open defaults in dispossessory actions. Tenants were originally given 14 days in which to move to open a default. This period was later reduced to seven days, and then the legislature eliminated opening defaults entirely in these cases. (See A. G. Spanos Dev. v. Caras, supra, for the history of these amendments.) Under the circumstances and applying the principles in OCGA § 1-3-1 (a) and Barton v. Atkinson, 228 Ga. 733, 739 (187 SE2d 835) (courts will not construe a statute to give an unreasonable result not contemplated by the legislature), we cannot conclude that the legislature’s failure to include specifically the code provisions applicable to opening defaults in magistrate court was anything more than an oversight. “[A] statute is to be construed in accordance with its real intent and meaning and not so strictly as to defeat the legislative purpose.” (Citation and punctuation omitted.) Blank v. Collins, 260 Ga. 70, 71 (389 SE2d 493).

Decided March 4, 1991.

Margaret Hayman, for appellant.

Imogene L. Walker, for appellee.

Accordingly, the trial court did not err by holding that OCGA § 44-7-53 (a) prohibits opening defaults in dispossessory actions in magistrate court.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A91A0109.
    SMITH DEVELOPMENT, INC. v. FLOOD.
    (403 SE2d 249)
   Birdsong, Presiding Judge.

Appellant/plaintiff, Smith Development, Inc., appeals the bench trial judgment in favor of appellee/defendant Kim M. Flood in its action grounded on quantum meruit and unjust enrichment.

Appellant was contacted to build a house for Mr. and Mrs. Dyer on land being offered for sale and owned jointly by appellee Flood and her friend Boling. Appellant’s salesman contacted Boling regarding the purchase of the land. Although an approximate purchase price of $12,000 probably was mentioned, no agreement was reached and no written contract for purchase executed. Boling informed appellant’s agent that he was not the sole owner of the lot and could not sell it.

About mid-October of 1988, Boling visited the lot with a prospective buyer and discovered “somebody” was building a house; the foundation was affixed to the land, subflooring had been installed, and a septic tank was in the ground but not covered with dirt. Boling contacted appellee Flood who did not know who was building on their property. Neither joint owner had given anyone permission to build. A few days later, appellee ascertained appellant probably was the builder and contacted an attorney. Boling subsequently conveyed his interest in the lot to appellee Flood.

On October 19, 1988, appellee’s attorney immediately phoned an office employee of appellant and gave notification there was no agreement to purchase the land, and “that she needed to have them get off [appellee’s] property until this matter was settled.” By letter, dated October 20, 1988, appellee’s attorney confirmed his prior telephone call, stated “no contact” occurred between the parties “other than a verbal agreement to sell this property” to Dyer for $12,000, and warned “until a deed is executed and monies paid on behalf of my clients, I would request that no further construction take place on this property, or if you do so it will be at your own peril.” (Emphasis supplied.) On October 21, 1988, appellee’s attorney sent appellant another letter stating that as appellee had now suffered additional expenses, including attorney fees, she would not sell the lot unless these expenses were paid in addition to the $12,000. This letter contained a caveat that “until this matter is resolved my client does not desire any further construction on her property.” On November 2, 1988, appellant responded with a general offer to place the $12,000 in escrow plus accrued interest and reasonable attorney fees. On November 4, 1988, appellee’s counsel sent a letter indicating general agreement, but specifying the Dyers pay $12,000 plus attorney fees of $250 and interest at 11 percent until date of closing. This letter re-emphasized that “until this matter is settled I would not suggest any further construction on this property.” Subsequently, appellant’s president sent a counter offer containing a security deed and note, which appellee apparently refused to accept as her $12,000 offer was a “cash offer.”

Appellant continued construction during the negotiation process, and the house was substantially completed on November 17, 1988. About February 1989, appellee tendered a final offer with an expiration date of February 11, 1989, to sell the lot for $16,000. Appellant’s president testified and made in-court admissions that in September and October of 1988, appellant knew who owned the land; appellant “obviously jumped the gun on starting the house” without a contract; and, that appellant could not get the FHA loan “worked out” and could not close by the deadline.

The February 11 deadline passed without the final offer being accepted. Appellee expended approximately $2,700 on house expenses, including installation of a dishwasher and stove, and rented the premises under a lease-purchase agreement on April 1, 1989. The purchase option was never exercised, but appellee received approximately $6,000 in rent. Held:

1. The trial judge’s findings of fact, included inter alia findings the' house was approximately 50 percent completed before it was discovered by Boling; appellee’s attorney advised appellant to stop construction until appellee was paid and deeds delivered; he again told appellant that appellee “wanted construction to halt”; appellant never stopped construction; and, the house was substantially completed by November 17, 1989. The trial judge also found “the fair market value of the land was $16,000 and the house built . . . has a reasonable [value] to the [appellant] of $40,400.” (Emphasis supplied.)

Findings shall not be set aside unless clearly erroneous. OCGA § 9-11-52 (a). The findings of fact are all adequately supported by evidence of record, and we are bound thereby.

2. Appellant’s claim for recovery based on unjust enrichment and grounded upon a contract implied in law or quasi contract is without merit. “If a benefit was conferred upon [appellee] at the expense of [appellant], it was not a benefit for which [appellee] became obligated to [appellant] under the theory of unjust enrichment.” See, e.g., Lawson v. O’Kelley, 81 Ga. App. 883, 886 (60 SE2d 380); 6 EGL (1989 Rev.), Contracts, § 49. Moreover, appellant appeared before the trial court having voluntarily commenced building on appellee’s property without her knowledge or consent, and by continuing building after being notified by appellee that to do so was at appellant’s peril and that appellee wanted construction to halt. Those who seek equity must do equity; as appellant’s conduct is incompatible with the “clean hands” doctrine, the equitable remedies of contract implied in law or quasi contract and recovery on the basis of unjust enrichment are not available to it. See Murawski v. Roland Well Drilling, 188 Ga. App. 760, 765 (2) (374 SE2d 207). Additionally, see Division 3 (b), below.

3. Appellant argues it is entitled to recovery on the theory of quantum meruit arising from the existence of a contract implied in fact.

(a) Where quantum meruit is an available remedy value means value to the owner rather than the cost of producing the result of the contractor. Stowers v. Hall, 159 Ga. App. 501, 502 (3) (283 SE2d 714); Bowen v. Ken-Mar Constr. Co., 145 Ga. App. 708, 709 (1) (244 SE2d 646). But, in view of our holding, we need not determine whether defensive litigation costs and other factors reduced appellee’s value in the property to a level lower than the value of the property found reasonable as to appellant by the trial court.

(b) “Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof” (OCGA § 9-2-7); and, generally an action of this type is grounded upon quantum meruit (First Nat. Bank &c. Co. v. McNatt, 141 Ga. App. 6, 8 (232 SE2d 356)); but cf., Ginsberg v. Termotto, 175 Ga. App. 265, 267 (1) (333 SE2d 120). The presumptions under this statute arise by operation of law (Hudson v. Hudson, 90 Ga. 581 (1) (16 SE 349)) and are rebuttable (see generally Atlantic Coast Line R. Co. v. Drake, 21 Ga. App. 81, 84 (2) (94 SE 65)). A contract to pay will not be implied from the mere performance of services. Phinazee v. Bunn, 123 Ga. 230 (1) (51 SE 300).

Appellee could not accept any services from appellant of which she was totally unaware. See Booth v. Watson, 153 Ga. App. 672, 677 (2) (266 SE2d 326). Accordingly, any acceptance of services would have to arise by virtue of the parties’ conduct after appellee became aware of the construction on her lot. Appellant argues that such conduct is demonstrated by appellee’s continued negotiation with appellant as to the sale of the lot and her ultimate leasing of the lot to a third party. Under the existing circumstances we do not agree.

“Where a party derives any benefit from services rendered by another, the law reasonably implies, on the part of the one who has received such benefit, a promise to pay, which promise is enforced on grounds of justice in order to compel the performance of a legal and moral duty.” 98 CJS, Work & Labor, § 6 (a); compare Atlanta Limousine Svc. v. Nichols, 155 Ga. App. 742 (272 SE2d 584); Brumby v. Smith &c. Co., 123 Ga. App. 443 (181 SE2d 303) with Williams v. Coca-Cola Co., 158 Ga. App. 139, 141 (3) (279 SE2d 261) (quantum meruit predicated on implied promise to pay arises only if defendant accepts valuable services). “This rule applies at least where the work is done with the knowledge or approbation of the party benefited, and unless it appears that there was an understanding that no compensation should be given; where there is such an understanding the law will not imply a promise, and such understanding may be implied from circumstances.” (Emphasis supplied.) 98 CJS, supra. Thus, a presumption of law that the person enjoying the benefit of services is bound to pay for them, is subject to rebuttal by proof either “that the services were intended to be gratuitous or by particular circumstances from which the law would raise the counterpresumption that the services were not intended to be a charge against the party benefited thereby.” (Emphasis supplied.) 98 CJS, supra.

Existing precedent in Georgia appears compatible with the above rule. “Quantum meruit lies ordinarily when one renders services valuable to another which the latter [voluntarily] accepts, raising the implication of a promise to pay the reasonable value thereof.” Griner v. Foskey, 158 Ga. App. 769, 771 (2) (282 SE2d 150); Guyton v. Young, 84 Ga. App. 155, 158 (2) (65 SE2d 858); accord Jackson v. Buice, 132 Ga. 51, 53 (63 SE 823). However, the promise to pay is rebutted if from the facts and circumstances it appears that the services were “rendered gratuitously.” Cooper v. Cooper, 59 Ga. App. 832 (2 SE2d 145); see also Guyton v. Young, supra at 162. Whether services were intended to be rendered gratuitously ordinarily is a question for the finder of fact to determine. McRae v. Britton, 144 Ga. App. 340, 344 (240 SE2d 904). Moreover, “ ‘[a] recovery on a quantum meruit basis may not be obtained where the services (even if beneficial) are rendered with no anticipation that compensation is to be received.’ ” Creative Svc. v. Spears Constr. Co., 130 Ga. App. 145 (3) (202 SE2d 581); accord Pembroke Steel Co. v. Technical Sales Assoc., 138 Ga. App. 744, 745 (2) (227 SE2d 491). “[T]he law will not imply a promise to pay for services contrary to the intention of the parties. There can be no recovery for services rendered voluntarily and with no expectation at the time of the rendition that they will be compensated. . . . Under such circumstances no obligation ... is incurred. A subsequent change of intention by the parties performing the services does not alter the rule.” (Citations and punctuation omitted.) Addison v. Southern R. Co., 108 Ga. App. 314, 315-316 (132 SE2d 833).

Decided March 4, 1991.

Bates, Kelehear & Starr, L. Stephen Kelehear, for appellant.

McDonald, Kinnamon & Thames, E. Crawford McDonald, Jef frey J. Dean, for appellee.

Inherent within the judgment of the trial court is the implicit finding that it was not intended at the time the services were rendered appellee would pay appellant. In this regard, the record reflects the services were rendered on appellee’s land in furtherance of an arrangement struck between appellant and the Dyers, and that when the services were performed appellant never contemplated appellee would be paying therefor. Accordingly, no presumption of law arises that appellee was to pay appellant for its services. See Henry Pilcher’s Sons v. Thompson, 145 Ga. 604 (89 SE 698) and Vason v. Strauss, 75 Ga. 833.

Appellant’s assertion that appellee voluntarily accepted his services by subsequently leasing the house is without merit. The trial court, citing Sutton v. United States, 256 U. S. 575 (41 SC 563, 65 LE 1099), has persuasively concluded that the appellee “did not accept or ratify the [appellant’s] work because she has not chosen to tear the house down, but has instead used it.” Sutton, supra at 580, states “ ‘[w]henever a structure is permanently affixed to real property belonging to an individual, without his consent or request, he cannot be held responsible because of its subsequent use. It becomes his by being annexed to the soil; and he is not obliged to remove it to escape liability. He is not deemed to have accepted it so as to incur an obligation to pay for it, merely because he has not chosen to tear it down, but has seen fit to use it.’ United States v. Pacific Railroad, 120 U. S. 227, 240 [7 SC 490, 30 LE 634].” Although this rule on occasion can be harsh, it is necessary; otherwise innocent landowners could be at the mercy of trespassing builders who could build indiscriminately on other’s lands knowing ultimately they will be compensated from some source. We need not determine exactly at what point in time the house became a fixture. By the time the February deadline passed, without appellant’s purchase of the land, the house was attached to the land as a fixture — belonging to appellee to do with as she desired. See generally OCGA §§ 44-1-2; 44-1-6 (a).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A90A1554.
    THOMAS v. THE STATE.
    (403 SE2d 206)
   Birdsong, Presiding Judge.

Ben Thomas appeals his conviction for the sale of cocaine. He alleges that the trial court erred by denying his motion to disclose the identity of a confidential informant and by limiting the scope of his cross-examination of a police officer. He also asserts that the evidence presented at his trial is insufficient to sustain the verdict. Held:

1. Although Thomas contends that he was entitled to know the identity of a confidential informant because the confidential informant was allegedly the only person other than the appellant and the undercover officer who witnessed the transaction, the transcript shows that three other witnesses testified no such sale was made. Thus, the informant was not “ ‘the only witness in a position to amplify or contradict the testimony’ of the appellant and the police officer.” Moore v. State, 187 Ga. App. 387, 391 (370 SE2d 511). Therefore, neither disclosure of the informant’s identity nor a Moore in-camera hearing was required. See Ponder v. State, 191 Ga. App. 346, 347 (381 SE2d 534).

2. Thomas also asserts that the trial court erred by limiting his cross-examination of a sheriff’s investigator about the investigator’s knowledge of charges pending against the confidential informant. See OCGA § 24-9-64. Although the trial court had ordered the prosecution to reveal any deals with the informant, and the transcript shows that the investigator had testified there was no deal, Thomas sought to cross-examine the investigator about why the informant was “trying to make a drug deal” because that information would go “to the motive for doing what he was doing and his reliability and that sort of thing.” After considering this argument, the trial court found the testimony Thomas sought would not be relevant: “I can’t follow the connection here.” As the sheriff’s investigator had previously testified there was no deal with the informant, the information sought had no relevance to the issues in the trial (see OCGA §§ 24-2-1 and 24-2-2). Further, there was nothing to indicate that the investigator was competent to testify about the informant’s subjective motivation for assisting the police. More significantly, however, the admissibility of this evidence lies within the discretion of the trial judge, and as there is no evidence that he abused his discretion in this case, we find no error. Butler v. State, 173 Ga. App. 168 (325 SE2d 835); Lewis v. State, 158 Ga. App. 586 (281 SE2d 331).

3. Thomas’ last enumeration of error asserts that the evidence presented at trial fails to meet the standards established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), because the testimony of three witnesses supported his contention that he did not sell cocaine to the undercover officer. We disagree. At this stage of the proceedings the presumption of innocence no longer prevails, the jury has decided the credibility of the witnesses, and it has been convinced beyond a reasonable doubt of the appellant’s guilt. Further, appellate courts review the evidence only to determine if there was evidence sufficient to authorize the factfinder to return the verdict of guilty. Powers v. State, 150 Ga. App. 25 (256 SE2d 637). As there was direct testimony from the undercover officer that Thomas sold him a substance which was later identified as cocaine by another witness, the evidence is sufficient. Consideration of the transcript in a light most favorable to the jury’s verdict, “reveals ample evidence from which any rational trier of fact could conclude that [Thomas] was guilty of [the sale of cocaine] as charged.” Jackson v. Virginia, supra; Baggett v. State, 257 Ga. 735, 736 (363 SE2d 257).

Decided January 16, 1991

Rehearing denied March 5, 1991.

Michael L. Bankston, for appellant.

J. Brown Moseley, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1670.
    GRAGG v. DIEBOLD, INC.
    (403 SE2d 229)
   McMurray, Presiding Judge.

Defendant Diebold, Inc., supplied a security system for a Citizens & Southern National Bank facility (“bank”) where plaintiff Gragg was employed. Plaintiff was injured when she walked in on an armed robbery in the main lobby of the bank. The entrance through which plaintiff entered the main lobby was the only one which did not have a warning light which would have alerted plaintiff that a security problem existed.

Plaintiff filed this product liability action predicated on theories of strict liability and negligence, alleging that because the security system provided by defendant did not include a warning light located in the vicinity of the entrance through which plaintiff entered the lobby it was defective, reflecting negligence in the design and installation of the system. Plaintiff appeals from the grant of summary judgment in favor of defendant. Held:

Decided February 21, 1991

Rehearing denied March 5, 1991

Didio & Broome, Stef ano A. Didio, Robert W. Broome, for appellant.

Chambers, Mabry, McClelland & Brooks, Cynthia J. Becker, for appellee.

We affirm. Bypassing several contentions made by defendant in the superior court in support of its motion for summary judgment, we predicate our decision upon Weatherby v. Honda Motor Co., 195 Ga. App. 169 (393 SE2d 64).

The security system is not alleged to be defective in the operational sense but in that it did not contain the additional safety feature of a warning light in the vicinity of the entrance used by plaintiff. The absence of such an additional warning light was readily discernible upon an objective view of the security system, thus it was readily apparent that the security system could provide no warnings to persons traversing that entrance to the bank’s lobby. Under the “open and obvious rule,” a plaintiff is barred from recovery on theories of negligence or strict liability for injuries resulting from such obvious or patent perils. Weatherby v. Honda Motor Co., 195 Ga. App. 169, 173, supra.

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.