text:
    A96A1543.
    WOMACK v. THE STATE.
    (476 SE2d 767)
   Ruffin, Judge.

Hajj Womack is charged in a 93 count indictment alleging armed robbery, aggravated assault, possession of a firearm during the commission of A crime, kidnapping, carrying a concealed weapon and participation in criminal gang activity. We granted Womack’s application for interlocutory appeal to consider whether the trial court erred in denying his petition for pre-trial bond. For reasons which follow, we affirm.

1. Womack asserts eight enumerations of error, all of which stem from the initial bond hearing. All eight enumerations rely upon the evidence heard by the trial court in the initial bond hearing. However, for reasons not disclosed by the record, the bond hearing was not recorded. In an order denying Womack’s petition for reconsideration, the trial judge indicated that the judge acted properly in the initial hearing and there was “no basis to alter the previous order denying the request for a bond.”

“OCGA § 5-6-41 ‘authorizes the submission of a transcript prepared from recollection only where the trial has not been reported or where, for some other reason, an actual transcript is not obtainable.’ ” Whitt v. State, 215 Ga. App. 704, 708 (3) (452 SE2d 125) (1994) (physical precedent only). “Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41. [Cits.]” Thomas v. State, 208 Ga. App. 367 (1) (430 SE2d 768) (1993) (physical precedent only).

The record in this case does not show that Womack moved the court, pursuant to OCGA § 5-6-41, to file a transcript of the proceeding in narrative form. Rather, Womack requests that this Court rely on his own summary of the testimony of the hearing and the affidavit of his trial counsel as to what took place during the hearing, over the objections of the State. “[F]aced with the disagreement of the parties as to the content of the transcript, ‘the trial court should have entered an order stating what transpired at trial, or, if it was unable to recall what transpired, it should have entered an order stating that fact.’ ” Effel v. Effel, 207 Ga. App. 643 (2) (428 SE2d 809) (1993). “Appellate courts are guided by the record and cannot rely on extrajudicial statements contained in arguments of counsel. [Cits.]” Whitt at 708. Where the record, as here, does not fully disclose what transpired at trial, “there is nothing for the appellate court to review. [Cits.]” Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980). See also Effel, supra.

Womack’s brief contains his own summary of the testimony from the initial bond hearing. However, “unsupported factual assertions in briefs cannot be considered in the appellate process. [Cit.]” Johnson v. Bruno’s, Inc., 219 Ga. App. 164 (2) (464 SE2d 259) (1995). Since Womack’s brief merely contains assertions of unstipulated facts which are not supported by the record or trial transcript, his brief is insufficient to carry his burden of proving the trial court erred in denying his petition for pre-trial bond. Additionally, although Womack has filed an affidavit from his trial counsel asserting what transpired at the hearing, “[t]he affidavit of appellant’s trial counsel does not meet the requirements of [OCGA § 5-6-41 (f)].” Daniel v. State, 170 Ga. App. 795 (3) (318 SE2d 218) (1984).

2. Even if we were to remand the case to the trial court with direction to make such findings pursuant to Effel, supra, and the trial court entered an order supporting Womack’s alleged facts, we would conclude that there has not been an abuse of discretion in the denial of bond.

“In determining whether bond was. denied properly in cases of this kind, we apply a ‘flagrant abuse’ standard. [Cit.] In other words, the superior court’s discretion will not be controlled unless it was manifestly or flagrantly abused. [Cit.]” (Indention omitted.) Hardy v. State, 192 Ga. App. 860 (2) (386 SE2d 731) (1989).

“In Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976), we set out standards for determining whether or not to grant bond pending appeal. We find that similar considerations are relevant when a trial court is considering a motion for bond prior to trial. The defendant may be detained pending trial if the facts support a finding that the defendant is likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice or will flee if released.” (Citation and punctuation omitted.) Lane v. State, 247 Ga. 387, 388 (276 SE2d 644) (1981).

In this case, the trial court “found there was reason to believe that there was a threat of additional crimes being committed if [Womack] was released from custody.” See Hardy, supra at 860. Thus, the trial court stated one of the findings enunciated in Lane, thereby supporting the denial of bond. “Whether we agree with these findings and conclusions is not controlling.” Hardy, supra. Accordingly, we affirm the decision of the trial court.

Judgment affirmed.

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

On Motion for Reconsideration.

On motion for reconsideration, Womack contends that only the first of his eight enumerations of error stems from the initial bond hearing and that although the record did not include a transcript of the bond hearing, the record does include a transcript of the February 2, 1996 motion for reconsideration hearing. In addition, he argues that at the February 2, 1996 motion for reconsideration hearing, the State offered no testimony and no evidence as to the reason bond should have been denied.

Womack’s insistence that consideration of only his first enumeration of error is dependent on the transcript of the initial bond hearing is without merit. The record is clear and cannot be ignored that the trial court, in denying Womack’s petition for reconsideration, clearly indicated that the trial judge who presided over the initial bond hearing acted properly and that there was no basis to alter the previous order denying bond. The February 2, 1996 hearing on the motion for reconsideration allowed the trial court to both reconsider the earlier decision and to hear “additional” evidence, including testimony from additional witnesses that were not available at the first hearing. The February 2, 1996 hearing did not in any way eliminate from the court’s consideration the order of the initial bond hearing. In essence, Womack is asking this Court to review only the evidence that was presented at the February 2, 1996 hearing and to disregard the findings implicit in the trial court’s order in the initial bond hearing. At the hearing on the motion for reconsideration, Womack presented numerous character witnesses. All of the witnesses testified that Womack is a person of good character and that they would do anything to support him. In addition, Womack testified that he did not commit the crimes of which he is accused and that he would cooperate with the State concerning the charges. Despite this testimony, the court found that there was reason to believe that there was a threat of additional crimes being committed if the defendant was released from custody. While we may differ with the trial judge’s conclusion, we cannot say, on this record, that he committed error. The trial judge observed the demeanor of Womack’s witness and he was authorized to believe or disbelieve the witnesses. In denying bond upon reconsideration, the trial judge sufficiently set forth his reasons for doing so in his order as required by the Supreme Court’s holding in Lane v. State, 247 Ga. 387 (276 SE2d 644) (1981). We cannot say that he abused his discretion.

The initial bond hearing was not recorded for reasons not disclosed in the record. Without a transcript of the first hearing or a statutorily authorized substitute, this Court must assume that the judgment below was correct. Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980). It is the primary responsibility of the appellant to perfect the record on appeal. Moreover, it is well settled that one cannot complain of a verdict, judgment, ruling or order that his own legal strategy, trial procedure or conduct aided in causing. Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673) (1992).

Decided September 11, 1996

Reconsideration denied October 7, 1996.

Harry J. Bowden, for appellant.

Lewis R. Slaton, District Attorney, Mary D. Hanks, Kirby Clements, Jr., Shawn E. Lagrua, Assistant District Attorneys, for appellee.

Motion for reconsideration is hereby denied.


source: Caselaw Access Project

author: Birdsong, Presiding Judge. Blackburn, Judge,

license: Public Domain

text:
    A96A1561.
    SCHNEIDER v. TRI STAR INTERNATIONAL, INC.
    (476 SE2d 846)
   Birdsong, Presiding Judge.

Allen Schneider appeals from the grant of summary judgment to Tri Star International, Inc., in his action for damages, based upon injuries he suffered when he was struck in his right eye and on his nose by a pair of needle-nose pliers when he attempted to pull and secure a retaining spring on a set of brake shoes and one side of the pliers allegedly fractured and then lodged in his right eye. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). On appeal, a grant of summary judgment will be affirmed if it is right for any reason (Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746)), but any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment. Kelly v. Vargo, 261 Ga. 422, 423 (405 SE2d 36).

2. Schneider’s complaint asserted that Tri Star negligently constructed, built, or assembled the pliers, that Tri Star failed to provide an adequate warning concerning the defective condition of the pliers, and that Tri Star breached its warranty that the pliers were safe, merchantable and fit for their intended use. Schneider further contends that Tri Star was strictly liable because it was engaged in the business of manufacturing, marketing or selling the pliers which were defective and unreasonably dangerous in design. See OCGA § 51-1-11 (b) (2).

The trial court, however, relying on Nelson v. C. M. City, 218 Ga. App. 850, 852 (463 SE2d 902) (cert. granted), held that Tri Star was not a manufacturer of the pliers within the meaning of OCGA § 51-1-11 because Tri Star “did not have ‘input’ and was not actively involved in the conception, design, or specification of the needle-nosed pliers. . . . OCGA § 51-1-11.1.” Consequently, the trial court granted summary judgment to Tri Star.

Schneider asserts on appeal that the trial court erred in reaching this finding and, thus, erred in granting summary judgment. Specifically, Schneider contends that genuine issues of material fact exist whether Tri Star had the necessary “input” or whether Tri Star was actively involved in the conception, design, or specification of the pliers. Tri Star agrees that the ultimate issue on appeal is whether it is a manufacturer of the pliers, within the meaning of OCGA § 51-1-11.

The record shows that Tri Star did not fabricate, i.e., assemble, construct, or create, the pliers. Instead, the record shows that Tri Star would inform several trading companies with ties to the Orient that it wanted certain tools, in this instance pliers, of certain size, appearance, hardness, and packaged in a certain manner, and the trading companies would secure pliers from companies in the Orient which manufactured such pliers. These pliers would then be sold.

Thus, the existence of a genuine issue of material fact on Tri Star’s status as a manufacturer of the pliers within the context of OCGA § 51-1-11 (b) (2) depends on whether the evidence shows that Tri Star had sufficient “input” in the manufacturing process or was actively involved in the conception, design, or specifications of the pliers within the limits established in Nelson v. C. M. City, supra. Tri Star contends that the descriptions provided the trading companies involved in supplying the pliers merely described the product that Tri Star was willing to buy, and that the pliers were not products it designed or which were built' specifically for it or according to its design specifications. Rather, Tri Star contends the trading companies it deals with merely located the pliers and then Tri Star imported and wholesaled them. The record shows, without contradiction, that Tri Star does not have a direct business relationship with the actual manufacturers of the pliers, i.e., the firms that actually forged and assembled the pliers, and does not have sales contracts with or documents relative to the manufacturer. Tri Star, however^ does conduct spot tests and quality checks on the products it receives to ascertain if the pliers it receives are in accordance with its orders. Tri Star contends that under this evidence it cannot be strictly liable to Schneider because it was an importer and marketer of the pliers and not a manufacturer within the terms of OCGA § 51-1-11 (b) (2). Tri Star asserts that the marketing arrangement in this case is virtually identical to that in Alltrade, Inc. v. McDonald, 213 Ga. App. 758 (445 SE2d 856), where an action based on strict liability was held not to lie even though Alltrade’s name was stamped on the product.

Under the evidence in this case, Schneider’s reliance on Nelson v. C. M. City, supra, is misplaced. The degree of involvement, i.e., “input,” by C. M. City in the manufacturing process far exceeded that of Tri Star in this appeal and was of a different nature. Therefore, we find that this case is more analogous to Alltrade, Inc. v. McDonald, supra, and the trial court did not err by concluding that Tri Star was a product seller as defined in OCGA § 51-1-11.1 (a), and not a manufacturer. Although Tri Star did not place its name on the pliers in this case, it appears that current business practices may have unduly limited the application of OCGA § 51-1-11; that is an issue for the legislature to address. See Alltrade, Inc. v. McDonald, supra at 761 (special concurrence).

3. Any error concerning the trial court’s grant of summary judgment on Schneider’s breach of warranty and negligence claims has been abandoned by his failure to present argument, reference to the transcript, or citation of authority on those issues. Court of Appeals Rule 27 (c) (2); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564).

Judgment affirmed.

Beasley, C. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I fully concur with the majority opinion as such result is required by the present statutory law. I especially concur to point out that the legislature’s 1987 amendment to the Georgia products liability law can create an unfair and unjust result. See Ga. L. 1987, p. 1152. Even though Tri Star marketed the subject pliers under its own name and apparently even represented itself to the public as having “50 years experience nation-wide as tool manufacturers,” Georgia law precludes its liability as a manufacturer. Plaintiffs like Schneider are limited in their remedy to actions against unknown and likely untouchable manufacturers in remote areas of the world. Such was not the case before the subject statute was amended, as the law formerly required those who labeled products as their own to take responsibility as an “ostensible manufacturer.” See, e.g., Pierce v. Liberty Furniture Co., 141 Ga. App. 175, 179 (4) (233 SE2d 33) (1977). I repeat the call for fairness made by Pope, C. J., in his special concurrence in Alltrade, Inc. v. McDonald, 213 Ga. App. 758, 761 (445 SE2d 856) (1994) and urge the legislature to fashion an appropriate remedy against those who represent themselves to be manufacturers when they are marketing products and it is to their benefit to do so, but who are then permitted under Georgia law to deny the responsibilities which the law imposes upon such manufacturers. Such a law permits the perpetration of a fraud upon the innocent citizens of Georgia.

Decided October 7, 1996

Parkerson, Shelfer & Groff, William S. Shelfer, Jr., David B. Groff, for appellant.

Duncan & Mangiafico, George E. Duncan, Jr., for appellee.


author: Eldridge, Judge.

text:
    A96A2111.
    HALL v. CRACKER BARREL OLD COUNTRY STORE, INC.
    (476 SE2d 789)
   Eldridge, Judge.

On November 20, 1992, appellant entered the Cracker Barrel Old Country Store in Macon, Bibb County, to have a breakfast meeting with co-workers. The Cracker Barrel restaurant is set up into two distinct areas: a gift shop at the entrance, which has a hardwood floor, and a restaurant, which has a rough, quarry tile floor.

As appellant walked from the gift shop to the restaurant, she slipped and fell on the hardwood floor, landing on her buttocks and injuring her right wrist. Appellant testified that she did not see any foreign substance on the floor, and her clothing was not wet; she said only that the floor looked shiny and was “slippery.” Appellant admitted that she had been to the restaurant both before and after the accident and had successfully negotiated the same area without slipping.

Appellee’s associate manager on duty saw appellant fall and assisted appellant while she had breakfast at the restaurant, offering to call an ambulance (appellant declined), and getting ice for appellant’s sore wrist. Appellee’s associate manager testified that appellant slipped again when she was leaving the restaurant.

Appellant was treated initially at a hospital emergency room, and, a few days later, appellant consulted with an orthopedist, who determined that appellant’s wrist was fractured and applied a hard cast. Appellant did not notify appellee of her medical care, nor did she submit medical bills to appellee for payment.

Appellant filed suit against appellee for damages arising from the fall, alleging that appellee’s floor was defective or that appellee was negligent in maintaining, designing, or constructing its business premises. Appellee responded with evidence that the floor was clean and dry at the time of the fall; that the floor was only cleaned with vinegar and water or with “Renovator,” a special cleaner/conditioner that is not a wax and does not make the floor slippery; that such care is consistent with the Cracker Barrel restaurant’s policy manual; that the floor was not slippery when it was clean and dry; that several other customers had traversed the same area on the day of the accident without slipping; and that the associate manager had never seen another customer fall at the threshold. After considering affidavits and depositions submitted by the parties, the trial court granted summary judgment to the appellee.

1. In the first enumeration of error, appellant asserts that the trial court erred in granting summary judgment since genuine issues of material fact remain in dispute. “To prevail at summary judgment under OCGA § 9-Í1-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.” (Citations and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Further, “the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id.

In the case sub judice, appellant asserts that she “slipped and fell due to the defective flooring and/or excessive waxing of the floor . . .” or because appellee was negligent by “failing to properly maintain, design, and/or construct its business premises.” Further, appellant asserts that appellee should have known about this allegedly dangerous condition and taken steps to warn customers about the hazard.

However, appellee has pierced appellant’s complaint by presenting evidence that no defective or dangerous condition existed that caused appellant to fall. Appellee’s associate manager testified in his deposition and affidavit that the floor had been maintained according to the policy manual and had not been waxed; that the floor was not slippery when clean and dry; that the floor was clean and dry at the time of appellant’s fall; and that no foreign substances were on the floor that may have caused appellant to slip and fall. In response, appellant admitted that she is unsure as to how and why she fell and relied on her assertion that the floor was “slippery” and, therefore, defective and dangerous.

Further, pretermitting whether or not a defective condition existed, appellant must also prove that there was “an act or omission [by appellee] which was the-proximate cause of [the] injury and which could not have been avoided by the [appellant] through the. exercise of ordinary care. [Cit.]" Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). “The weight of. authority in cases where the plaintiff slips and falls, allegedly due to the defendant’s negligence in maintaining a highly waxed and slippery floor, is that ‘proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.’ [Cit.] . . . [T]he plaintiff must, at a minimum, show that the defendant was negligent eithex; in the materials . . . used in treating the floor or in the application of them.” Id.; see also J. C. Penney Co. v. Smith, 173 Ga. App. 612, 613 (327 SE2d 574) (1985).

In the case sub judice, appellant alleged such negligence in the. care of the floor, but appellee’s evidence pierced the pleadings at issue by presenting evidence that their care of the floor was' consis-' tent with the policy manual of Cracker Barrel; that they used only vinegar and water or “Renovator,” a hardwood floor cleaner and conditioner, to clean the floor; axid by affirmatively denying the use of waxes or substances which would make the floor slippery. Again, in response, appellant failed to present any evidence that such floor care was negligent other than the assertion that the floor was “slippery” and that, therefore, the appellee mjust háve been negligent.

In a case with remarkably similar facts, this Court found that summary judgment was appropriate when the plaintiff failed to present evidence that the “wood flooring in [defendant’s] restaurant was defective; that the area where [plaintiff] fell was negligently maintained or that the wood flooring used-in [defendant’s] restaurant is not an accepted flooring material commonly used in the building industry. The only evidence with regard to fixe condition pf the floor at the time of [plaintiff’s] fall is her own deposition testimony that the floor just felt slippery.’ This evidence is insufficient to raise genuine issues of material fact as to [defendant’s] negligent maintenance, design-, or construction of its business premises.” Cole v. Cracker Barrel, 210 Ga. App. 488, 489-490 (436 SE2d 704) (1993).

Further, in Alterman Foods, supra, another similar slip and fall case, the defendant introduced testimony that there was no foreign substance or defect on the floor at the time of plaintiff’s fall and that other customers had traveled over the area without incident. Id. at 625. The Supreme Court held that the evidence presented was “sufficient to pierce the pleadings of the plaintiff and to shift the burden to her to produce issuable evidence or suffer judgment. ‘The evidence [here] is not ambiguous, doubtful, or susceptible of more than one interpretation. There is no evidence that the defendant or its agents were guilty of any negligence. Indeed the record affirmatively shows the absence of any negligence by the defendant or its agents. The evidence simply shows that the plaintiff fell while shopping in the defendant’s store. This is insufficient.’ Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go.” (Citations omitted.) Id. “To presume that because a cusfalls iñ a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state.” (Citation and punctuation omitted.) McGauley v. Piggly-Wiggly Southern, 170 Ga. App. 851, 852 (319 SE2d 15) (1984) (granting summary judgment since the “record is silent as to why or how the appellant slipped, or upon what”); Alterman Foods, supra at 624.

Finally, in the case sub judice, appellant attempted to introduce evidence that others have experienced similar slip and fall incidents at the restaurant, apparently to prove that a defective condition existed and that the appellee had actual or constructive knowledge of a dangerous condition. In slip and fall cases in Georgia, this Court has held that the “true ground of liability is the proprietor’s superior knowledge of the. perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner . . . and not known to the person injured that a recovery is permitted.” (Citations and punctuation omitted; emphasis in original.) Ballard v. Southern Regional Med. Center, 216 Ga. App. 96, 97 (453 SE2d 123) (1995); Alterman Foods, supra at 622. However, there is no admissible evidence that appellee had actual or constructive knowledge of the alleged defect, i.e., a slippery floor.

Appellant cited to previous slip and fall incidents involving her neighbor and an employee of appellee, but admitted that she did not know where or when the incidents took place or whether they involved foreign substances on the floor. Further, appellant’s testimony regarding the other incidents was apparently based on hearsay and not personal knowledge. Hearsay is never admissible at trial unless it comes within a recognized exception. Jeweler’s Financial Svcs. v. Chapes, Ltd., 181 Ga. App. 872, 873 (354 SE2d 200) (1987). “ ‘Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. (Cits.)’ ” E. H. Crump Co. &c. v. Millar, 200 Ga. App. 598, 600-601 (3) (409 SE2d 235) (1991), quoting Biggs v. McDougall, 175 Ga. App. 87, 88 (1) (332 SE2d 381) (1985). In addition, there was no evidence to establish that the circumstances surrounding the other incidents were substantially similar to the appellant’s slip and fall. See Manley v. Gwinnett Place Assoc., L.P., 216 Ga. App. 379, 381 (454 SE2d 577) (1995). “Similar acts or omissions on other and different occasions are not generally admissible to prove like acts or omissions at a different time or place.” (Citation and punctuatioh omitted.) J C. Penney, supra at 613 (holding that such evidence is “irrelevant”); see also Cole, supra at 490 (rejecting affidavits of two of defendants’ patrons and a former employee who described similar slip and fall incidents as proof of negligent maintenance).

Although appellant also stated in her affidavit that a co-worker slipped at the same time on the same area of floor, she failed to mention the incident when asked during her deposition whether she knew “of anyone else who’s ever slipped on the floor like that.” Therefore, these inconsistent statements must be construed against the appellant, as appellant has offered no reasonable explanation for the discrepancy. Prophecy Corp., supra; Brown, supra; Papera, supra; Simone, supra.

Since the appellee presented evidence that no defective condition existed at the time of appellant’s fall, that appellee’s care of the floor was not negligent, and that they had no actual or constructive knowledge of the alleged hazard, the appellant, in order to survive summary judgment, must present admissible evidence to rebut these contentions and give rise to a triable issue. Such possible evidence might include expert opinion as to whether appellee’s floor maintenance was adequate or appropriate, e.g., the chemical composition of the “Renovator” floor treatment, which left an admittedly glossy surface and which might have shown that the substance could have become slippery after buffing or in the presence of water, or the use of vinegar and water, since it is a weak acid solution, which may have acted as a stripper and dissolved fats and other substances and may have caused a film of fat or other substances to develop on the floor if not properly removed. In addition, the appellant may have been able to raise an issue regarding the finish on the hardwood surface, i.e., did it have a slick polyurethane surface to protect the wood, and was this the surface that the “Renovator” was to regenerate? Further, the appellant’s possible evidence may have been able to establish that the composition of the sole of appellant’s shoes, when they came into contact with the hardwood floors and the restorative substance, may have been slick for that type of footwear but not others. Finally, appellant could have submitted an affidavit from the co-worker who allegedly slipped contemporaneously with the appellant. When appellant fails to controvert or refute appellee’s evidence, summary judgment in favor of appellee is mandated. J. C. Penney, supra at 613. Appellant’s assertion that the floor was “slippery” is insufficient to create a material issue of fact as to appellee’s evidence, and therefore, summary judgment was appropriate.

Decided September 26, 1996

Reconsideration denied October 8, 1996.

Dozier, Lee, Graham & Sikes, Neal B. Graham, Stephen M. Welsh, for appellant.

Anderson, Walker & Reichert, Robert A B Reichert, Samuel G. Alderman III, for appellee.

2. In the second enumeration of error, appellant asserts that the trial court erred in granting summary judgment on the issue of payment of medical expenses, since an oral contract was created between the two parties. In the alternative, in the absence of an oral contract, appellant asserts that promissory estoppel compels a judgment against appellee for the payment of her medical expenses. However, appellant did not claim such contract or promissory estoppel in her pleadings before the trial court, and therefore, this claim will not be reviewed by this Court for the first time.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

       Appellant, in her affidavit, bolstered this assertion by claiming that, in her opinion, the area of the floor where she fell was “shiny” and, therefore, over-waxed or excessively worn. However, when asked during her deposition if there was anything different or unique about the appearance of the spot on the floor where she fell that makes it stand out from the rest of the hardwood floor, appellant answered “no.” “Although we construe the evidence most favorably to appellant as the party opposing the motion for summary judgment, ‘where there is a direct contradiction in the testimony of the respondent as to a material issue of fact, that party’s unfavorable testimony will be taken against him,’ ” unless there is a reasonable explanation for the discrepancy. (Citations omitted.) Simone v. Hancock Textile Co., 175 Ga. App. 191, 193 (332 SE2d 669) (1985); see also Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986); Brown v. Amerson, 220 Ga. App. 318 (469 SE2d 723) (1996); Papera v. TOC Retail, 218 Ga. App. 777, 778 (463 SE2d 61) (1995). Appellant has offered no explanation for the inconsistent testimony.


author: Ruffin, Judge.

text:
    A96A1402.
    WILLIAMS v. SAFEWAY INSURANCE COMPANY.
    (476 SE2d 850)
   Ruffin, Judge.

Scedro Williams sued Ronald Cousin for injuries allegedly sustained in an automobile collision between the parties. Williams also served the complaint on her uninsured motorist carrier, Safeway Insurance Company (“Safeway”). Safeway answered the complaint in its own name, asserting among other defenses that Cousin was not an uninsured motorist as defined by Georgia law. After trial, the jury returned a verdict in favor of Williams for $32,719.23. Safeway subsequently filed a motion for j.n.o.v. on the ground that Williams presented no evidence showing the existence of an uninsured motorist policy or that Cousin was an uninsured motorist. The trial court granted Safeway’s motion, and Williams appeals from that order. We affirm.

A j.n.o.v. is proper “when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions, demands a particular verdict.” Cox v. State Farm &c. Co., 217 Ga. App. 796 (1) (459 SE2d 446) (1995). The relevant facts of this case are not in dispute. Although the record does not contain a trial transcript, Williams concedes in her appellate brief that she presented no evidence showing the existence of her uninsured motorist policy with Safeway or that Cousin was an uninsured motorist. Williams contends, however, that she was not required to present such evidence because neither issue was preserved in the pretrial order. Specifically, Williams cites paragraph 8 of the pretrial order which provides: “[t]he issues for determination by the jury are as follows: Negligence, proximate cause and damages.”

Although Williams is correct that the pretrial order controls the scope of trial, and that an issue omitted from the pretrial order is waived, that is not the end of our analysis in this case. See Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 495 (313 SE2d 709) (1984). By filing an answer in its own name, Safeway gained the status of a named party which could contest its liability for coverage. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 169-170 (268 SE2d 676) (1980). In such an action, Williams had the threshold burden to prove “(1) the existence of a policy of liability insurance containing uninsured motorist protection, and (2) that [Cousin] was an uninsured motorist at the time of the [collision].” Hartford Accident &c. Co. v. Studebaker, 139 Ga. App. 386, 387 (1) (228 SE2d 322) (1976). “The court[ could not] presume that [Cousin] was an uninsured motorist.” Id. at 388.

Furthermore, the burden to raise these issues in the pretrial order did not rest solely on Safeway. “ ‘The pre-trial order is an indispensable mechanism in the (trial) court. Its purpose is to determine which of the claims pleaded will actually be tried. The claims, issues, and evidence are limited by the order and the course of the (action) is thereby narrowed to expedite the proceeding.” (Emphasis supplied.) O’Bryant, supra at 495. Accordingly, not only was Safeway required to preserve in the pretrial order any defenses it had, but Williams was also required to preserve any claims she had. “A claim or issue, though previously raised in pleadings, is waived when it is omitted from the pretrial order. [Cit.]” O’Quinn v. Southeast Radio Corp., 199 Ga. App. 491 (1) (405 SE2d 314) (1991). Thus, Williams’ contention that the issues were not raised in the pretrial order is a double-edged sword which would result in a waiver for both parties. If, as Williams contends, Safeway’s liability for coverage was not an issue, then a stipulation should have been recited in the pretrial order. See, e.g., Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 882 (1) (204 SE2d 789) (1974).

Decided October 8, 1996.

Thomas F. Jones, for appellant.

Crim & Bassler, Nikolai Makarenko, Jr., for appellee.

Moreover, the record does not support Williams’ contention that the issue was not raised in the pretrial order. Paragraph 7 (b) of the pretrial order, which contains Safeway’s outline of the case, states that “Safeway Insurance Company denies that the Defendant is [sic] uninsured motorist as defined under Georgia law.” Although this was not stated in the pretrial order as an issue for determination by the jury, “a pre-trial order should be liberally construed to allow the consideration of all questions fairly within the ambit of contested issues.” (Citation and punctuation omitted.) Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522-523 (1) (b) (428 SE2d 426) (1993). Considering the duty of the court to construe a pretrial order liberally, we find the pretrial order in this case fairly raised the issue of Safeway’s liability for uninsured motorist coverage. See id. Because Williams did not present any evidence on this issue, the trial court did not err in granting Safeway’s motion for j.n.o.v.

For all the foregoing reasons, we affirm the trial court’s judgment.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A96A1682.
    LOFTY et al. v. FULLER et al.
    (477 SE2d 30)
   Blackburn, Judge.

Glen C. Fuller, in his individual capacity and doing business as Tri-State Graphics, sued Bob Lofty, Steven D. Lofty, and James A. Lofty, individually and doing business as Lofty Construction Company (collectively Lofty), for breach of contract and negligent damage to property. Lofty appeals the jury’s verdict in favor of Fuller, and argues that because there was no evidence of a meeting of the minds, the trial court erred in failing to grant its motion for directed verdict. Lofty also appeals the denial of its motions for remittitur and j.n.o.v. or in the alternative, motion for new trial.

Viewed most favorably to Fuller, the evidence shows that in September 1991, Fuller and Lofty entered into an agreement for Lofty to remove approximately 40,000 cubic yards of fill dirt from Fuller’s property for use in Lofty’s nearby construction project. Fuller declined Lofty’s offer to pay $8,000 for the fill dirt, and the parties agreed that Lofty’s payment to Fuller would be through the provision of services. Lofty removed the dirt from Fuller’s property. In so doing, Fuller alleges that Lofty’s trucks damaged his property. Two years passed, and despite repeated requests, Fuller could not get Lofty to return to his property and perform the work Lofty allegedly agreed to do in exchange for the dirt. Fuller sued, and the parties’ disagreement concerns what services Lofty was to provide in exchange for the fill dirt.

1. Lofty argues that the contract was unenforceable because there was no meeting of the minds on its terms, and that the trial court erred in failing to direct a verdict on this issue. “A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test.” (Citation and punctuation omitted.) Grubb v. Woodglenn Properties, 220 Ga. App. 902, 903 (470 SE2d 455) (1996).

Both parties agree that Lofty was to dig a pond, but disagree as to what, if any, other services Lofty contracted to perform in exchange for the dirt. Fuller testified that Bob Lofty came to his office, walked Fuller’s property while Fuller explained what he wanted done, examined a tax map of Fuller’s property, agreed to perform the services outlined by Fuller, and shook hands on the deal. Lofty began removing dirt from Fuller’s property the very next day. Lofty contests Fuller’s version of the contract terms, asserting that Lofty was to provide Fuller with $8,000 worth of grading services which included digging a pond. The remaining services were unspecified.

Lofty argues that there was no meeting of the minds because the parties disagree as to the contract terms. “The fact that the plaintiff and the defendant differed in their testimony as to the terms of the contract is not sufficient to show that their minds had never met, but simply raised a conflict in the evidence as to what was the contract between the parties.” Fincher v. Redman, 12 Ga. App. 241 (76 SE 1077) (1913).

Because Fuller presented evidence that there was a meeting of the minds that grading services would be exchanged for fill dirt, the parties’ disagreement about the precise contract terms constitutes a genuine issue of material fact for the jury. The evidence does not demand a verdict in favor of Lofty, and the trial court did not err in failing to direct the verdict.

2. Lofty argues that the trial court erred in not granting its motion for remittitur. The evidence reflected that it would cost Fuller between $82,000 and $200,000 to perform the work Lofty agreed to perform, and that the highest value of the dirt taken by Lofty was $14,000. The jury returned a verdict for $34,000 in favor of Fuller. The jury was instructed as to various theories of recovery, including breach of contract and quantum meruit. Its verdict did not reflect which theory the jury adopted.

With respect to its motion for remittitur, Lofty argues that because the jury did not award Fuller interest pursuant to OCGA § 13-6-3, it found that there was no contract and made its award upon the theory of quantum meruit. Lofty argues that the $34,000 award to Fuller must be reduced because quantum meruit only entitles Fuller to receive the value of the dirt he provided, plus the $1,238.20 in damage to his property he proved at trial.

Lofty’s argument — that the absence of an award of interest means that the jury awarded in quantum meruit and not in contract — is without merit. As the jury was instructed, the decision to award interest for breach of contract lies within its discretion. See Carpet Transport v. Kenneth Poley Interiors, 219 Ga. App. 556, 559 (466 SE2d 70) (1995) (“ ‘[t]he jury in their discretion may increase the immediate amount of damages found, by an allowance of interest’ ”). Thus, we cannot presume that the jury’s failure to award interest meant that it found no contract existed. The court did not err in denying Lofty’s motion for remittitur.

Lofty also appeals the trial court’s denial of his motion for j.n.o.v. or in the alternative, motion for new trial. Lofty asserts that the verdict was contrary to the evidence and strongly against the weight of the evidence.

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. . . . The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motions for new trial and [j.n.o.v.] will not be disturbed.” (Citations and punctuation omitted.) Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996).

Employing this standard, we find evidence to support the verdict. Therefore, the trial court did not err in failing to grant Lofty’s motion for j.n.o.v. and in the alternative, motion for new trial.

Judgment affirmed.

Beasley, - C. J, and Senior Appellate Judge Harold R. Banke concur.

Decided October 8, 1996.

Spears, Moore, Rebman & Williams, Robert G. Nor red, Jr., for appellants.

Strang, Fletcher, Carriger, Walker & Hodge, Larry L. Cash, James R. Rogers, for appellees.


text:
    A96A2073.
    RICHARD v. THE STATE.
    (476 SE2d 849)
   Blackburn, Judge.

In this appeal from his conviction for robbery (OCGA § 16-8-40), Clarence Paul Richard contends in his sole enumeration of error that the State improperly struck an African-American venireman from his jury panel in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

Examining the record, we find that although voir dire was not recorded, the trial transcript reflects the State struck one of two black panel members. When Richard challenged this strike, the trial court ruled that Richard had not shown a prima facie case of discrimination under Batson. The State nonetheless gave its reason for the strike, and the prosecutor stated the panel member had previously served on a jury that returned a “not guilty” verdict in a criminal case he prosecuted. The prosecutor told the trial court he had previously struck white and black prospective jurors who had served on juries which returned “not guilty” verdicts, but he did not know of any other members of Richard’s panel who had served on such a jury. The trial court then denied Richard’s motion. We affirm.

The initial inquiry in this type of case is “whether [Richard] established a prima facie case of discrimination to trigger the prosecutor’s duty to give racially neutral reasons for the exercise of his challenged peremptory strikes.” Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993). In this case, because the trial court ruled on the ultimate question of intentional discrimination, the preliminary issue of whether Richard made a prima facie case of discrimination is rendered moot. Id. Accordingly, we focus on the ultimate question of intentional discrimination.

The prosecutor must respond to a prima facie Batson challenge by giving specific race-neutral, case-related reasons for his peremptory strikes. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). We have held a prosecutor’s good-faith concern that a juror will not properly consider a case to be a proper ground for exercising a strike. In Crawford v. State, 220 Ga. App. 786, 788 (1) (470 SE2d 323) (1996), we held race-neutral the explanation of a prosecutor who stated he struck a black female from a jury panel because of her previous service on a jury which returned a not guilty verdict in a felony case. We have previously held that strikes based on a panel member’s service on a prior “hung jury” in a criminal case were not discriminatory. Aldridge v. State, 222 Ga. App. 437 (475 SE2d 195) (1996); Jackson v. State, 220 Ga. App. 98 (469 SE2d 264) (1996).

Decided October 8, 1996.

William W. Clarke, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Under this case law, the State presented a legitimate, race-neutral explanation for the challenged peremptory strike. Richard has pointed to no facts in the record challenging the basis for the prosecutor’s explanation. Crawford, supra. Thus, the trial court’s conclusions are not clearly erroneous. Gamble, supra at 327 (5).

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J, concur.


author: McMurray, Presiding Judge.

text:
    A96A0818.
    WOODS v. THE STATE.
    (476 SE2d 865)
   McMurray, Presiding Judge.

Defendant was charged in an accusation with theft by taking. He later appeared at arraignment without an attorney and executed a form entitled, “ARRAIGNMENT,” which provides as follows: “Comes now defendant in the within matter and acknowledges receipt of copy of accusation and list of witnesses, waives benefit of counsel, formal arraignment, trial by jury and pleads NOT guilty.” After consulting with the State’s attorney, defendant also executed a document entitled, “STATEMENT OF INTENTION TO HIRE OWN ATTORNEY-WAIVER OF RIGHT TO APPOINTED COUNSEL.” This document appears to be a standard form and provides as follows:

“I am the above named defendant. I hereby declare my intention to hire my own attorney to represent me in the above-styled case. The judge has told me that if I cannot afford to hire my own attorney, he will consider appointing one to represent me at the County’s expense.

“I DO NOT WANT THE JUDGE TO APPOINT A LAWYER TO REPRESENT ME AT THE COUNTY’S EXPENSE.

“I understand that if I appear for trial without an attorney, no continuance will be granted solely for the purpose of obtaining counsel. I also understand that I may still request appointed counsel by calling the judge’s secretary and scheduling an appointment no later than one week prior to the trial date.”

The State’s attorney then presented and explained a document to defendant entitled, “WAIVER OF RIGHT TO TRIAL BY JURY.” Defendant executed this form, but later changed his mind and filed — pro se — a request for jury trial. When the trial court called defendant’s case for a jury trial three weeks later, defendant appeared without an attorney and informed the trial court that he had consulted an attorney and expected this attorney to represent him at trial. Defendant explained, however, that he “and the counsel never had come to any type of financial agreement.” Because defendant “did not make a timely request for [a] court appointed attorney,” the trial court entered an order — which also appears to be a form incorporating standard findings of fact and conclusions of law — finding that defendant “waived his right to be represented by counsel.” The trial court then immediately called upon defendant to defend himself at trial without assistance of counsel, and the jury found defendant guilty of the crime charged. The trial court sentenced defendant to a term which included five consecutive weekends in confinement at the county jail. About a week after entry of this sentence, defendant was found to be indigent, and a court-appointed attorney was assigned to represent him.

Defendant’s newly appointed attorney filed a motion for new trial, asserting that “defendant was forced to proceed unrepresented without making a knowing and voluntary waiver of his right to counsel.” At a hearing on this motion, defendant testified as follows: “[DEFENSE COUNSEL:] Now you represented yourself at trial; is that correct? A. Yes, sir. Q. And why did you not have an attorney represent you at trial? A. Originally I had went out and sought representation, and me and the counsel never had come to any type of financial agreement. . . . Q. Okay. And what happened with [this attorney]? A. And he had just said he was going to be here for the trial. And at the day of the trial he no-showed and the judge had given me time to go call him and he was unavailable. So I represented myself from that point on. Q. Now had you retained [the attorney who said he was going to appear on your behalf at trial]? A. Yes. Q. Had you paid him money? A. No. No, we had not come to an agreement. He said he had to look further into the case and see exactly what he was getting into before he would put any type of financial demands upon it. Q. Okay. Now when you discovered that [this attorney] wasn’t going to represent you at trial how did you come to decide to represent yourself? A. It was just a hasty decision that I had made. I felt like without having proper representation, then my other factor would be for me to represent myself or at least try. Q. Did you ask the Court for an attorney to represent you? A. No. No, I did not. Q. You never did? A. No, because my attorney was suppose to have been present. Q. Did you understand that because you are indigent that the Court might have appointed an attorney for you? A. No. No, sir. Q. And you’re stating under oath that that was never explained to you, that you had the right to an attorney? A. Yes, that was explained to me, that I had the right to attorney, but I had counsel upon my knowledge. The attorney was supposed to be here on the day of the trial. That’s why I turned down representation. Q. All right. Now do you remember the Court explaining to you the importance of having an attorney to represent you at trial? A. No. No, I do not, not the importance of me having an attorney to represent me, no. Q. Okay. And do you have any legal training? A. No, sir. Q. Did you understand what the possible punishment was for theft by taking? A. Yes. Q. And what was that? A. Vaguely, it was 12 months incarceration, community service, and a fine and restitution.”

After cross-examining defendant, the State’s attorney offered the following: “I will then state in my place that with respect to the ‘Statement of Intention to Hire an Attorney, slash, Waiver of Right to Appointed Counsel’ and with respect to ‘Waiver of Right to a Trial by Jury,’ those documents contain my signature, excuse me, my handwriting, and I will state again in my place that [at arraignment], I personally spoke with the defendant and reviewed those documents with him myself, explained those rights to him in laymen’s terms, and then I presented those documents to [the trial court], and I recall [the trial court] reading those documents and then sighing off on them indicating that [the trial court] had read the defendant the documents personally.”

The trial court denied defendant’s motion for new trial and appended its earlier determination that defendant had waived his right to an attorney, adding that defendant “had made a knowing and intelligent waiver of his right to counsel. . . .” This appeal followed. Held:

Although the trial court is vested with discretion in determining whether a defendant waives counsel by failing to diligently retain an attorney, Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448), the trial court must first ascertain whether the absence of counsel is attributable to reasons beyond the deféndant’s control. Burnett v. State, 182 Ga. App. 539 (1), 540 (356 SE2d 231). In the case sub judice, defendant informed the trial court that he talked with an attorney before trial and that, even though he and “the counsel never had come to any type of financial agreement,” he fully expected the attorney to represent him at trial. But when defendant could not muster the attorney on the day of trial, the trial court ended further inquiry and entered an order — with standard findings of fact and conclusions of law — finding that defendant’s appearance without counsel, along with his failure to request a court-appointed attorney, amounted to waiver of “his right to be represented by counsel.” The problem with this conclusion, however, is that the trial court failed to explore whether defendant’s appearance without counsel was attributable to reasons beyond defendant’s control. Indeed, the scant record in the case sub judice does not even show whether defendant was indigent at the time of trial. It indicates only that defendant may have consulted an attorney before arraignment and that defendant entered bis not guilty plea on a form which includes language purporting to reflect defendant’s waiver of his right to counsel at arraignment. Consequently, since waiver of counsel cannot be presumed from a silent record, Waire v. State, 211 Ga. App. 69, 70 (438 SE2d 142), we must remand the case sub judice for the trial “court to make a finding as to [defendant’s] indigence [at the time of trial] and, depending upon that finding, to exercise discretion as to diligence and the appointment of counsel.” Livingston v. State, 221 Ga. App. 563, 568 (2), 570 (472 SE2d 317). If the trial court in its exercise of discretion determines that defendant was indigent at the time of trial, then the trial court must order a new trial; if not, a new trial is not necessary. See Flanagan v. State, 218 Ga. App. 598 (462 SE2d 469).

Decided October 9, 1996.

Austin A. Hammond, for appellant.

Judgment affirmed on condition, otherwise reversed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

       A prosecuting attorney should avoid counseling and consulting with the accused as “all attorneys have ‘an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.’ Cuyler v. Sullivan, 446 U. S. 335, 346 (100 SC 1708, 64 LE2d 333) (1980); Ga. Code Title 9 Appendix, Rules and Regulations for Organization and Government of State Bar of Georgia, Canon 5.” Hudson v. State, 250 Ga. 479, 481 (299 SE2d 531).

       It seems appropriate to avoid such omissions by recording compliance with Uniform Superior Court Rule 30.2, which provides as follows: “Before arraignment the court shall inquire whether the accused is represented by counsel and, if not, inquire into the defendant’s desires and financial circumstances. If the defendant desires an attorney and is indigent, the court shall authorize the immediate appointment of counsel.”


text:
    A96A0931.
    GIBSON v. THE STATE.
    (476 SE2d 863)
   McMurray, Presiding Judge.

Defendant Gibson appeals his conviction of the offenses of possession of cocaine with intent to distribute, possession of cocaine, and possession of a firearm during commission of a crime. Held:

1. Defendant was outside the house when a search warrant was executed on his residence. Cocaine was found in a coffee table in the living room. The coffee table was positioned in front of a couch, and a firearm was found beneath the couch against the wall. Based on this set of circumstances, defendant argues that there is no evidence that he had the firearm “on or within arm’s reach of his person . . .” during the commission of the offense of possession of cocaine with intent to distribute. OCGA § 16-11-106 (b) (4).

Contrary to defendant’s assertion, we find sufficient circumstantial evidence to authorize defendant’s conviction. Defendant’s possession of cocaine and of the firearm was established by his dominion over his residence. Thus, the final element of the crime of possession of a firearm during commission of a crime required proof only that defendant passed even momentarily within arm’s reach of the gun. As to this element, the jury could consider the evidence concerning the small size and crowded conditions within the residence and infer that it was inevitable that such a juxtaposition had occurred. The evidence satisfied the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. During the motion to suppress hearing, the trial court considered evidence concerning oral testimony provided to the magistrate. Defendant contends that the trial court’s consideration of that evidence was error because “neither the warrant nor affidavit stated that oral testimony was given.” This argument is predicated on language from Pines v. State, 166 Ga. App. 724, 726 (305 SE2d 459) noting that a better practice in presenting such testimony on a motion to suppress would be via official transcript or record and encouraging magistrates to make some written notation or memorandum as to any oral testimony presented to them in support of the issuance of a warrant. Indeed, in the case sub judice, the magistrate had made a one sentence note apparently recording a point made in oral testimony. While defendant urges that a higher standard be made mandatory, no authority is cited in support of this proposal. The well-established rule permits consideration of evidence concerning oral testimony provided to the magistrate. Delay v. State, 213 Ga. App. 199, 201 (4) (444 SE2d 140). This enumeration of error lacks merit.

3. Next, defendant contends that the magistrate lacked probable cause to issue the search warrant for defendant’s home. But we conclude that there was a reasonable basis for the magistrate’s determination of probable cause in issuing the search warrant and find this enumeration of error to lack merit.

“ ‘ “In determining whether probable cause supported issuance of a search warrant, a ‘totality of the circumstances’ test is employed. ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . ., there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis ... for conclud(ing)” that probable cause existed.’ (Cit.)” (Cit.)’ Perkins v. State, 197 Ga. App. 577, 578 (1) (398 SE2d 702) (1990). ‘(T)he determination of staleness has been modified so that now that issue is included in the broad overview of “totality of circumstances.” (Cit.)’ Ayers v. State, 181 Ga. App. 244, 248 (2) (351 SE2d 692) (1986). ‘Time is assuredly an element of the concept of probable cause. (Cit.) However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of the issuance of the search warrant. (Cit.)’ State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984).” Sims v. State, 207 Ga. App. 353, 354 (427 SE2d 842).

The analysis of this issue submitted by defendant proceeds through the affidavit, paragraph by paragraph, to reach the “key point” that neither the affidavit nor the magistrate’s note ever states how the informants obtained their information or describe the alleged criminal activity in such detail as to show that it is more than a “casual rumor” circulating in the underworld. Defendant argues that where reliance is placed on an informant, one of these alternative items must be shown. Dailey v. State, 136 Ga. App. 866 (1) (222 SE2d 682). However, this Court has held that where, as in the case sub judice, an affiant states under oath before a magistrate that an informant has seen the contraband, this sufficiently establishes the source of information. Jackson v. State, 130 Ga. App. 6 (1) (202 SE2d 206).

The evidence on the motion to suppress shows that the magistrate was presented with a showing via affidavit and oral testimony that an informant, identified as “Source B,” had seen cocaine in defendant’s control and that this informant along with a law enforcement officer (presumably an undercover agent) had discussed the purchase of cocaine with defendant. This informant lived in close proximity to defendant’s residence and was able to see a lot of what went on at the residence and had reported observing a delivery to the residence of a large quantity of crack cocaine 11 days prior to the execution of the search warrant, as well as a lot of traffic going to the residence. Ample evidence concerning this informant’s reliability was provided via the affidavit and oral testimony.

Decided October 9, 1996.

Lawrence W. Daniel, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Tarvin, Assistant District Attorney, for appellee.

The affidavit set forth additional information from other sources which serves primarily to show that defendant engaged in a pattern of dealing in drugs over a period of months, and if some of these items of information should be omitted due to a failure to establish the reliability of the source, there is no discernible effect on the overall picture. The affiant also stated that his research disclosed that defendant had a long history of drug arrests.

4. The trial court did not err in refusing to give defendant’s requested instruction on the equal access defense. An instruction given by the trial court was substantially similar to the pattern instruction approved and held to adequately cover the equal access issue in Dickerson v. State, 200 Ga. App. 366, 367 (1) (408 SE2d 137).

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A1188.
    In the Interest of K. B., a child.
    (476 SE2d 875)
   McMurray, Presiding Judge.

The Juvenile Court of Gwinnett County adjudicated K. B. a delinquent child after hearing proof that K. B. was a party to a shooting incident involving two delinquent acts (constituting two aggravated assaults if committed by a person other than a child). Specifically, evidence adduced at the adjudicatory hearing reveals that, at 10:00 p.m. on April 14, 1995, K. B. was in the company of six other youths, at least two of whom planned to assault a particular member of a group known as “the Bloods gang.” After one of the youths, “R. W.,” suggested tracking down and assaulting “D. M.,” the targeted victim, K. B. and his associates rode to an area where D. M. was known to hang out. They soon spotted the victim and another rival gang member. These two youths were alone, walking throúgh a residential apartment complex. One of K. B.’s associates then stated — “ ‘We’re going to go kill this slob’ ” — and the driver of the car (in which K. B. was a passenger) “pulled up on the curb . . .” near the victims. R. W. exited the car and called to the victim and his companion. K. B. and three or four others followed close behind and stood outside the car. The targeted victim and his associate instinctively moved away from this threatening assembly, but did not get far before gunshots rang out. One of K. B.’s associates had fired two shots from a handgun. The first bullet missed, but the second bullet hit its mark. The targeted victim fell to the ground, wounded through the neck. Two more rounds were fired at the rival gang members. This time, both bullets missed, and K. B. and his associates fled in the getaway car.

D. M. initially told Officer Matthew Daly of the City of Norcross Police Department “that the man or the kid who shot him was [R. W.]” At the adjudicatory hearing, Perry (Trey) Littlejon testified that he and three friends were walking up the street when they met K. B. “And [R. W.] and [D. L.] drove up in a car and [R. S.] said what you-all doing. He’s like, ‘We’re fixing to go kill this slob.’ ” “[A slob is a] member of the Bloods [gang].” “So [R. S.] asked [D. L.] could Folks go with him and he said yeah. So we got in the car and we drove and we drove to Wind Brook and while we was driving the car, . . . [R. W] .told us that we was going to go look for him by Norcross School, and if we couldn’t find him in Norcross School, we was going to go to his house and we was going to shoot his house up. . . . [W]e seen them walking in the street and [D. L.] and [R. W] said, ‘There they go, there they go, there they go.’ ” “And ‘KB’, he was sitting on the end of the car so he let everybody out.” Perry Littlejon also testified that it was R. W. “who did the shooting[.]” But he conceded that he had originally given a taped statement to police where he “told [police] ‘KB’ shot him.” Perry Littlejon explained giving this contradictory evidence “because there was a threat on [his] life.” However, the victim’s companion, “D. A.,” testified that he recognized the driver of the car (not K. B.) “and [he] saw K. B. get out.” The victim, D. M., testified that when he heard the first shot he “turned to [his] right and . . . looked. . . . Everybody was just standing there.” D. M. saw “ ‘KB,’ [R. W.], [D. L], That was the only three.” As [D. A.] bent over to help [D. M.,] . . . they fired two more shots. . . .” “L. S.,” age 14, was in the car. He gave a statement to authorities “that ‘KB’ had the gun right after the shooting[.]” L. S. also affirmed “that ‘KB’ gave the gun to [R. W.]. . . [a]fter the shots were over.” L. S. then clarified, “right after the shots were fired, [R. W.] had had the gun. And then we were talking in the car and stuff and [R. W.] had handed it back to ‘KB’, and . . . then he [K. B.] gave the gun to [R. W.] and that’s what [L. S.] saw.” An audiotape of the original statement L. S. gave to police was played before the juvenile court. In that statement, L. S. related that after R. W. haled the intended victim, “everybody got out of the car except [L. S.] and [the driver], . . . [L. S.] heard all of them talking and then ‘KB’ was like, man, f— it, and then pow, pow, pow.” L. S. further identified State’s Exhibits 15 and 16 as photographs of the gun he saw in the car that night.

Craig Watson, R. W.’s stepfather, testified that, after he heard of the shooting, he went to K. B.’s home “to see what happened because [his] son was locked up.” “His [K. B.’s] father asked him what happened and then he [K. B.] proceeded to explain to us what happened. . . .” “In his [K. B.’s] words he said they were out, they were riding around and they saw the boy . . . and they went up to him and they were going to have an altercation and ‘KB’ said that somebody gave him a gun, and it was passed around and he got the gun and he shot four times and the boy fell and they all got back in the car and they left.” Perry Psura Davis, Jr. also heard K. B. make'this statement. K. B. testified in his own behalf and denied making this incriminating statement. This appeal followed the denial of K. B.’s motion for new trial. Held:

In his sole enumeration of error, K. B. challenges the sufficiency of the evidence, arguing that his presence at the crime scene is insufficient to authorize a determination that he was a willing participant in the above-described delinquent acts.

“Under the Juvenile Code, ‘the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. (Cits.)’ M. W. W. v. State of Ga., 136 Ga. App. 472, 474 (221 SE2d 669) (1975).” In the Interest of T. S. 211 Ga. App. 46 (2) (438 SE2d 159). “ ‘While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of [the commission of the crime as] being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ (Citations and punctuation omitted.) Griggs v. State, 208 Ga. App. 768, 769 (1) (432 SE2d 591) (1993); Tucker v. State, 205 Ga. App. 683, 684 (423 SE2d 422) (1992). Further, a person is a party to a crime and may be charged with and convicted of commission of the crime if he intentionally aids or abets in the commission of the crime. OCGA § 16-2-20.” Grace v. State, 210 Ga. App. 718 (1), 719 (437 SE2d 485).

Although there is evidence in the case sub judice that K. B. merely sat in the back seat of a car on the night of the incident in question and did nothing while his companions planned and executed assaults upon the targeted victim, there is other testimony that K. B. knew of R. W.’s plans and willingly joined him before entering the car. K. B. was the first to follow R. W. out of the getaway car at the crime scene. There is also evidence authorizing the conclusion that K. B. encouraged the initiation of gunfire before he returned to the getaway car. There is evidence that he handled the gun after the shootings and remained with his associates (watching television) for some time after the shootings. This evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the juvenile court’s determination, beyond a reasonable doubt, that K. B. committed the alleged delinquent acts by aiding in and abetting the shooting assaults in question. In the Interest of J. S. S., 168 Ga. App. 340 (2) (308 SE2d 855). See generally Cargill v. State, 256 Ga. 252 (1), 253 (347 SE2d 559); Johnson v. State, 188 Ga. App. 411, 412 (2) (373 SE2d 93). As the juvenile court did not err in adjudicating K. B. delinquent and providing him with rehabilitation and treatment according to law, the enumeration of the general grounds is without merit.

Decided October 9, 1996.

Rich, Smith & McCoy, Michael T. Smith, for appellant.

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Johnson, Judge.

text:
    A96A1208.
    McKENZIE v. THE STATE.
    (476 SE2d 868)
   Johnson, Judge.

Raleigh McKenzie was convicted on all counts of a ten-count indictment charging him with child molestation, incest, rape, and aggravated sexual battery. He appeals following the denial of his motion for new trial. We remand.

1. McKenzie challenges the sufficiency of the evidence. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court. . . does not weigh the evidence or determine witness credibility.” (Citation and punctuation omitted.) Powell v. State, 218 Ga. App. 556 (462 SE2d 447) (1995). All three victims, McKenzie’s daughters, testified at trial that he had committed the charged acts. Other witnesses also testified that the girls had said McKenzie had molested them. This evidence is sufficient. See Carr v. State, 214 Ga. App. 367 (1) (448 SE2d 33) (1994).

2. McKenzie alleges that his trial counsel rendered him ineffective assistance, violating the guarantees of the Sixth Amendment to the United States Constitution and of Ga. Const., Art. I, Sec. I, Par. XTV. McKenzie has cited no authority, however, for his Georgia constitutional claims. We deem them abandoned and consider the Sixth Amendment claims only. See Wilson v. State, 199 Ga. App. 900, 901 (406 SE2d 293) (1991).

In evaluating ineffectiveness of counsel claims, this Court uses the test set out in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), which requires a two-part showing. The first part requires the convicted defendant to show that his trial counsel’s representation “fell below an objective standard of reasonableness.” Id. at 688. The defendant must also “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Cit.]” Id. at 689. The second part of the Strickland test requires the defendant to show that any deficiency in trial counsel’s performance resulted in prejudice to his defense, meaning “a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different (104 SC 2068).” (Citation and punctuation omitted.) Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891) (1990).

(a) The first alleged deficiency is the mishandling of two defense witnesses’ subpoenas. The subpoenas were quashed because they were served less than 24 hours before the witnesses were to testify. See OCGA § 24-10-25 (a). As a result, the witnesses did not testify until the sentencing hearing. At the hearing on the new trial motion, trial counsel testified that McKenzie asked to serve the subpoenas himself because the witnesses were friends of his. Trial counsel agreed to the request, gave McKenzie the subpoenas two or three days in advance, and told him of the 24-hour requirement for service. Though McKenzie and his brother allege counsel gave him the subpoenas the night before the witnesses were to testify, the trial court’s findings of fact in its order denying the new trial motion reflect that it believed trial counsel’s testimony. “It is the province of the trial court to weigh the credibility of the witnesses and unless clearly erroneous, its findings of fact will be upheld on appeal.” (Citation omitted.) Arline v. State, 264 Ga. 843, 844 (2) (452 SE2d 115) (1995). The facts as found by the trial court do not establish that McKenzie’s counsel’s conduct fell below an objective standard of reasonableness. Moreover, the witnesses would have testified only to McKenzie’s good character and had no knowledge of the particular acts with which he was charged; McKenzie thus has not shown a reasonable probability that their testimony would have changed the trial’s outcome. This claim therefore presents no ground for reversal.

(b) McKenzie also maintains that his trial counsel were ineffective when they failed adequately to respond to inadmissible testimony by two of the State’s witnesses.

(i) When counsel for both sides were through questioning Vernon Lestagez, the witness on his own initiative implored the jury, “Don’t let him get away with it. That’s all I have got to say.” McKenzie’s counsel immediately objected, and the judge sustained the objection and instructed the jury to disregard the remark. McKenzie’s counsel did not move for a mistrial and gave two reasons for not doing so in the evidentiary hearing on the new trial motion: First, that she considered the jury an excellent one for McKenzie and doubted she could get another one as good at a new trial; second, she noted that the jury had laughed at Lestagez during his testimony, leading her to conclude they would give little weight to anything he had to say. This decision can be considered sound trial strategy and thus did not constitute ineffective assistance.

(ii) Another witness was asked whether the victims had admitted to her that they fabricated the charges against their father. She replied that they had not and further volunteered, “I do not think that they made that up because, personally, I have went through some of the stuff that they went through but I haven’t gone through it with my father and for me to make up something like that —At that point she was stopped by McKenzie’s counsel’s objection. Before the court ruled on the objection, the prosecutor said he had no further questions for the witness, and she was excused. The trial court never ruled on the objection or gave curative instructions, and McKenzie’s counsel did not request any curative action. At the later evidentiary hearing, counsel explained that they did not consider the comment influential, and that they did not want a mistrial because they were so pleased with the composition of the jury. Not asking for a mistrial can be considered sound trial strategy.

(c) McKenzie contends his trial counsel failed to communicate with each other and with him before trial, failed to-interview important witnesses, and otherwise failed adequately to prepare for trial. These failures, he alleges, resulted in the following testimony and trial court rulings that prejudiced his defense:

(i) A ruling allowing the State to use evidence of similar transactions. The indictment charged McKenzie with molesting his daughters from 1991 through 1994. Two of the girls testified, however, that he had begun molesting them when they were much younger. The prosecutor had served upon McKenzie’s lead counsel a pretrial notice, pursuant to Uniform Superior Court Rules 31.1 and 31.3 (A), that he intended to introduce this similar transaction testimony. When the court held its hearing under USCR 31.3 (B), however, it became apparent that McKenzie’s lead counsel had expected to receive a brief on the issue from the State and that his co-counsel was not even aware of the notice the State had served.

No amount of preparation, coordination, or skill on the part of trial counsel, though, would have changed the fact that the similar transaction evidence was admissible because it satisfied the three-part test set out in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). “[T]he sexual molestation of young children, regardless of sex or type of act, is [of] sufficient similarity to make the evidence admissible. . . . [T]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” (Citations and punctuation omitted.) Adams v. State, 208 Ga. App. 29, 32 (2) (a), (b) (430 SE2d 35) (1993). It is not necessary to introduce a conviction of the other crimes in order to adduce testimony that they occurred. Grier v. State, 218 Ga. App. 637, 639 (2) (463 SE2d 130) (1995). McKenzie has failed to show prejudice from his counsel’s performance in this regard.

(ii) The trial court’s ruling that McKenzie could not introduce evidence of the victims’ purported sexual activity with someone other than him. Before the first witness was called, the prosecutor made an oral motion in limine to exclude all evidence of any sexual activity by the girls, apart from the alleged molestation. McKenzie’s counsel argued that the girls had run away to the home of the Lestagez family and alleged that their father had abused them, because one or two of the girls wished to continue sexual relationships with the Lestagez sons, to which McKenzie and his wife were opposed. They maintained that evidence of the sexual relationships with the Lestagez sons was admissible to show a motive for making false allegations of abuse against McKenzie. The trial court granted the State’s motion. Defense counsel did not renew their objection or move for a mistrial.

Later in the trial, a pediatrician who examined all three girls testified that two of them had transections to their hymens, which were consistent only with vaginal penetration. Defense counsel should have expected this testimony, because they had previously cross-examined the pediatrician at a juvenile court proceeding. Defense counsel did not, however, argue to the court that allegations of the girls’ other sexual activity should have been admitted to explain the doctor’s physical findings and rebut the inference that the transections were caused by McKenzie’s molestation. “[W]here the State introduces medical testimony indicating that the child has been sexually abused . . ., evidence that the victim may have been molested by someone other than the accused may be admissible to establish other possible causes for the . . . medical symptoms exhibited by the child.” (Citation omitted.) Chambers v. State, 213 Ga. App. 284, 286 (1) (b) (444 SE2d 833) (1994). Appellate counsel maintains that trial counsel’s failure to make this argument and ask for an in camera opportunity to offer proof of their allegations constituted ineffective assistance.

Even if counsel’s failure to make this argument fell below an objective standard of reasonable performance, reversal is not warranted on this ground because McKenzie has not shown prejudice. According to trial counsel’s testimony at the hearing on the new trial motion, the only evidence on this subject was McKenzie’s own speculation that one of the girls had had sex with a Lestagez boy because she had stayed out late with him, and because one of the other victims said her half-sister may have dated him. This does not prove the victim had engaged in other sexual relations; proves nothing with respect to the other daughter with a transected hymen; and was partially cumulative of testimony by McKenzie. Perhaps the weakness of this evidence explains trial counsel’s acquiescence in the ruling. McKenzie has not shown that his speculations should have been admitted even with an in camera hearing. This Court therefore cannot hold that the failure to press for an in camera hearing, and to argue the relevance of the speculations to the physical findings, prejudiced McKenzie.

(iii) The testimony of several witnesses regarding treatment the victims received at the hands of Vernice McKenzie, mother of two of them and stepmother of the third. The victims testified that Ms. McKenzie had struck two of them with household objects such as pots and pans and an electrical cord. Other witnesses also said the girls had complained of physical abuse by Ms. McKenzie, including being punched and being struck with a radio and a hair drier. McKenzie’s trial counsel did not object to this testimony. McKenzie’s appellate counsel maintains that this testimony destroyed Vernice McKenzie’s credibility -and that her credibility was crucial to the defense because she testified, as one living in the household where the molestations allegedly occurred, that she did not believe the accusations.

McKenzie’s lead trial counsel testified at the new trial hearing that she did not object to the testimony of Ms. McKenzie’s outbursts because it supported her theory of the defense: That the girls ran away from home and fabricated the molestation allegations in order to escape the harsh discipline of their home. In view of the fact that this Court has previously reversed at least one statutory rape conviction on similar underlying facts, this was a viable strategy. See Wilson, supra, 199 Ga. App. at 902 (1).

McKenzie’s appellate counsel contends, however, that the lead trial lawyer’s theory of defense was at odds with the theory of her co-counsel and that the evidence concerning Vernice McKenzie that supported the lead attorney’s theory tended to contradict the co-counsel’s. The record does riot support this contention. McKenzie’s other trial lawyer testified at the evidentiary hearing that his theory of the case was to show that Raleigh McKenzie, though a disciplinarian, was himself a very hard worker and decent man who would never molest his daughters. This second theory does not contradict the first and is not directly weakened by the evidence of Vernice McKenzie’s outbursts. McKenzie has not shown that his trial counsel was ineffective in this regard. Compare Ross v. Kemp, 260 Ga. 312 (393 SE2d 244) (1990).

McKenzie has not shown prejudice resulting from any deficiency in his trial counsel’s conduct and so has not established that his counsel was ineffective.

3. McKenzie enumerates several errors in the trial court’s reseating on the petit jury a member of the venire whom McKenzie’s counsel had peremptorily stricken. Because the trial court’s findings on the record are insufficient to provide this Court with a basis for review of the trial court’s action, a remand for further findings is required.

During voir dire, McKenzie’s counsel used 11 of their 12 strikes to remove white women from the jury. The prosecutor then alleged that the strikes were racially motivated, in violation of Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992), which applied the rationale of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). (1986) to the peremptory strikes of criminal defendants. The trial court required McKenzie’s counsel to explain the reasons for each of the 11 strikes and accepted as race-neutral all the reasons offered except those in support of the strike of potential juror Rice.

McKenzie’s lawyer said Rice had been struck because she had a daughter, had been party to a lawsuit involving money, had no grandchildren, and had a relative who had been arrested on drug charges; she added, “I didn’t check to see if she was white.” The trial court observed that a black male with daughters of similar ages and who had been party to a lawsuit had not been struck, and said she did not find the proffered reasons to be race-neutral. As in Taylor v. State, 219 Ga. App. 475, 477 (2) (465 SE2d 473) (1995) and Ledford v. State, 207 Ga. App. 705, 706 (1) (429 SE2d 124) (1993), the judge reseated the challenged venire member on the petit jury.

(a) The issue of whether McKenzie’s peremptory strikes were made with an intent to discriminate on the basis of sex, in violation of J. E. B. v. Alabama, 511 U. S. _ (114 SC 1419, 128 LE2d 89) (1994), was mentioned in the briefs. This issue was neither argued to nor ruled on by the trial court, however, and thus has been waived. “If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground.” (Citations and punctuation omitted.) Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395) (1990).

(b) McKenzie claims the trial court erred in finding that the prosecution had established a prima facie case of racial discrimination in his use of peremptory strikes. McKenzie’s “overwhelming use of peremptory strikes to exclude [jurors of one race . . .] establishes a prima facie showing of discrimination. . . .” Buchanan v. State, 215 Ga. App. 143, 145 (3) (449 SE2d 660) (1994). This claim is without merit.

(c) McKenzie also alleges that the trial court erred in finding that he did not produce racially nondiscriminatory reasons for striking Rice; in shifting the ultimate burden of persuasion on the question of racial discrimination to McKenzie; and in reseating Rice on the petit jury.

When the court reseated Rice, McKenzie’s counsel protested that the strike had not been racially motivated. The judge responded, “I didn’t say it was racially motivated. I said it was not race neutral. There is a difference.” The court’s written order denying McKenzie’s motion for new trial contained no further explanation of its McCollum findings.

While it may be relevant that a strike’s impact is “not race neutral,” the issue of whether the strike was “racially motivated” must still be reached. “[Djisparate impact should be given appropriate weight in determining whether the [striking party] acted with a forbidden intent, but it will not be conclusive in the preliminary race-neutrality step of the Batson inquiry. . . . Unless the [striking party] adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of race neutrality.” Hernandez v. New York, 500 U. S. 352, 362 (111 SC 1859, 114 LE2d 395) (1991) (plurality opinion).

Nor should this Court attempt to assess racial motivation on appeal. The issue of whether a striking lawyer acted with discriminatory intent is one of fact for resolution by the trial court, who observed the lawyers’ demeanor at voir dire and, in this case, at the new trial motion hearing. Batson, supra at 476 U. S. 98, fn. 21.

Because the trial court’s discrimination findings did not answer the controlling question, this case is remanded solely to allow the trial court to enter written findings on the issue of racially discriminatory intent in the striking of Rice. See Weems v. State, 262 Ga. 101, 103 (3) (416 SE2d 84) (1992). The trial court may conduct a hearing if it deems one necessary or advisable. If the trial court finds upon remand that the strike was racially motivated, the conviction will stand affirmed. If the trial court finds no racially discriminatory intent, the conviction will stand vacated and a new trial will be required. Either party may file a notice of appeal from the trial court’s ruling on remand; any such appeal will deal only with whether McKenzie’s strike of Rice was racially motivated. See Lewis v. State, 262 Ga. 679, 681 (2) (424 SE2d 626) (1993).

Decided October 9, 1996.

Drew Findling, Elizabeth L. G. Rankin, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

Judgment conditionally affirmed.

Case remanded with direction. McMurray, P. J., and Ruffin, J., concur.


author: Andrews, Judge.

text:
    A96A1488.
    NORRIS v. ROBERTSON et al.
    (476 SE2d 860)
   Andrews, Judge.

Jack Norris appeals the trial court’s order in a declaratory judgment action granting Vincent and Rachel Robertson’s motion for judgment on the pleadings and Rachel Robertson’s motion to dismiss her as a party to the suit. We affirm the dismissal of Rachel Robertson and reverse the granting of judgment on the pleadings to Vincent Robertson.

The underlying dispute in this case involves the estates of Willie Robert Norris and Joseph D. Norris, his son. Willie Norris died in 1974 and left a house and 57 acres of land to his wife, Carrie Lou Norris, for her lifetime, with the remainder interest to his children, Joseph Norris, Willard Norris, Betty Jo Putnam, Omega Jones, Jack Norris and Rachel Robertson.

Joseph Norris died in 1985, nine years before his mother Carrie Lou. The beneficiaries under Joseph’s will were his siblings, Omega Jones, Rachel Robertson, Jack Norris, Betty Jo Putnam, Willard Norris, and his mother, Carrie Lou Norris. Joseph appointed Vincent Robertson, his sister Rachel’s husband, as his executor.

Subsequently, Jack Norris filed suit against Vincent Robertson asking that Robertson be removed as executor due to his failure to timely sell or divide a tract of land in Joseph’s estate. A settlement agreement in the case was reached in February 1986. Under this agreement, Jack Norris, Omega Jones, Betty Jo Putnam and Willard Norris each received over $100,000 in return for signing a release of any and all claims to any property or assets of Joseph Norris’s estate. The release signed by Jack Norris provided, in pertinent part:

“The undersigned . . . hereby releases and discharges Vincent Robertson, individually and in his representative capacity as Executor of the Last Will and Testament of Joseph D. Norris, and his successors in office, and the Estate of Joseph D. Norris, from any and all claims or rights to any property or assets, real or personal, of the Estate of Joseph D. Norris.

“The undersigned acknowledges that the above stated sum represents an advancement of the full distributive share of the Estate of Joseph D. Norris due to the undersigned pursuant to the terms of a Settlement Agreement entered into on December 13, 1985, and pursuant to the terms of a Probate Court Order dated February 4, 1986.

“The undersigned further acknowledges that he has no further claim or interest in or to any of the assets, present or future, of the Estate of Joseph D. Norris.”

On November 5, 1994, Carrie Lou Norris died. Joseph Norris’s estate was re-opened in order to distribute his share of the remainder interest in the house and 57 acres. Vincent Robertson, as executor, stated that the four beneficiaries who signed the releases were not entitled to inherit any of Joseph Norris’s share of the remainder interest. The effect of this determination was that Joseph Norris’s remainder interest would go to Rachel Robertson, as the only remaining beneficiary.

Jack Norris then filed this declaratory judgment action seeking to have the release rescinded, claiming the settlement agreement was reached without any mention or contemplation that property from Willie Norris’s estate would pass through Joseph Norris’s estate. The trial court granted the Robertsons’ motion for judgment on the pleadings, finding the clear language of the release precluded Norris from claiming mistake of law, mistake of fact, or misrepresentation by Robertson. The court stated the language was clear and unambiguous, and therefore, parol evidence would be inadmissible to vary the terms of the release.

1. “ After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. (OCGA § 9-11-12 (c).) For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not admitted. Judgment on the pleadings may be granted only if, on the facts so admitted, the moving party is clearly entitled to judgment.’” (Citation omitted.) Abacus, Inc. v. Hebron Baptist Church, 201 Ga. App. 376 (411 SE2d 113) (1991).

While the language of the release may well be clear and unambiguous, this does not preclude claims of mistake of law, mistake of fact, breach of fiduciary duty or fraud. Although parol evidence ordinarily is inadmissible to vary an unambiguous written contract, this is not true when there are allegations of fraud, accident or mistake. See, e.g., Roberson v. Henderson Chemical Co., 171 Ga. App. 722, 724 (320 SE2d 835) (1984) (in the absence of fraud, accident or mistake, parol evidence is inadmissible to vary the terms of the written release). “Parol evidence, however, is admissible to demonstrate that both parties to a release were honestly mistaken as to the legal effect of the instrument, and may establish a question of fact over the scope of the release which is most appropriate for jury resolution.” (Citation omitted.) Id.

Here, Norris alleges mistake of law in that he believed the release would apply only to those assets of the estate as they were presented at the time of the settlement agreement. The complaint also alleges mistake of fact, claiming that neither party was aware of the remainder interest at the time the release was signed. Norris submitted a copy of the transcript from the hearing at which the settlement agreement was presented to the court. Robertson’s attorney and the court both stated that all of the assets of the estate would be included. Accordingly, there are questions raised as to the intent of the parties in entering into the agreement. See Fox v. Washburn, 264 Ga. 617, 618 (449 SE2d 513) (1994) (jury issue as to whether agreement can be reformed due to mutual mistake even though one party does not admit to mistake).

The complaint also alleges facts sufficient to support a claim of constructive fraud. Given the confidential relationship of the parties, see Ringer v. Lockhart, 240 Ga. 82, 84 (239 SE2d 349) (1977), Robertson’s failure to disclose Joseph Norris’s estate’s interest in the Willie Norris estate, even if it was done innocently and mistakenly, is sufficient to raise this claim. See First Union Nat. Bank &c. v. Davies-Elliott, Inc., 207 Ga. App. 791, 793 (429 SE2d 161) (1993); Graham v. Hogan, 185 Ga. App. 842, 844-845 (366 SE2d 219) (1988).

Accordingly, taking all these material allegations as true, Norris’s complaint states a viable claim, and we cannot say that defendants were clearly entitled to judgment. Gray v. McKenna, 202 Ga. App. 685, 687 (415 SE2d 295) (1992); Abacus, Inc., supra. The trial court erred in granting the Robertsons’ motion for judgment on the pleadings.

2. The trial court correctly granted Rachel Robertson’s motion to dismiss. Norris’s brief on appeal argues the motion to dismiss should not have been granted because Rachel conspired with her husband to deprive the other heirs of their claim on the estate. But, a review of the complaint and the two amended complaints shows no such claim. Accordingly, we find the complaint fails to state a claim against Rachel Robertson and does not meet the notice pleadings requirement of the Civil Practice Act. See generally ALW Mktg. Corp. v. Hill, 205 Ga. App. 194, 198 (422 SE2d 9) (1992).

Judgment affirmed in part and reversed in part.

Pope, P. J., and Smith, J., concur.

Decided October 9, 1996.

Congdon & Williams, W. Barry Williams, for appellant.

Fleming, Blanchard, Jackson & Durham, James G. Blanchard, Jr., Vincent M. Davison, Jr., for appellees.