text:
    A93A1908.
    AUTOLITE et al. v. GLAZE.
    (440 SE2d 497)
   Andrews, Judge.

We granted the application of Autolite and its insurer for discretionary appeal from the order of the superior court reversing an award in favor of Autolite by the State Board of Workers’ Compensation (the Board).

The Administrative Law Judge (ALJ) determined that after Glaze sustained a compensable injury, she returned to light duty work for Autolite within medical restrictions, and received temporary partial disability benefits. Thereafter, Glaze was laid off from work when Autolite closed its plant. Glaze sought similar light duty employment from other employers, but received no employment offers. The ALJ further determined that there was no evidence as to why Glaze was not offered employment. It was stipulated by the parties that she continued to receive temporary partial disability benefits, and the sole issue was whether, because of an economic change in condition, she was entitled to total disability benefits. Relying on Poulnot v. Dundee Mills Corp., 173 Ga. App. 799 (328 SE2d 228) (1985), the ALJ concluded that because the employer was unable due to the plant closing to continue to provide light duty work, Glaze had incurred an economic change in condition, and that she did not have the burden of proving that her inability to obtain suitable employment elsewhere was caused by her previous compensable injury. Accordingly, the ALJ awarded Glaze total disability benefits.

On de novo review, the Appellate Division of the Board also concluded there was no evidence as to why Glaze was not offered other employment after being laid off, and that because of the plant closing, Autolite was unable to offer Glaze suitable employment. Although the Board found there was some evidence Glaze had sought other suitable employment, it refused to presume that her compensable injury was the cause of her inability to obtain suitable employment. Contrary to the ALJ, the Board concluded that Glaze had the burden of proof on this issue, and failed to carry her burden to prove that her inability to secure suitable employment was caused by the previous compensable injury. Citing Aden’s Minit Market v. Landon, 202 Ga. App. 219, 220 (413 SE2d 738) (1991), the Board reversed the ALJ, and found Glaze did not prove an economic change in condition.

Thereafter, the superior court reversed the Board and restored the award of the ALJ on grounds that: (1) the Board incorrectly placed the burden of proof on Glaze to prove a change in condition, and (2) that the Board erred in finding there was no evidence that Glaze’s injury proximately caused her inability to secure other suitable employment.

In this case, as in Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978), after the employee suffered a compensable injury and returned to suitable light duty work provided by the employer, the employee “was laid off after [her] employer no longer had any work for any of [its] employees, including the claimant.” Id. at 288. In other words, the employer was unable to provide suitable work for causes unrelated to the compensable injury. The evidence is undisputed that Autolite closed its plant, and for that reason was unable to provide Glaze with employment. Under these circumstances, an employee seeking benefits based on an economic change in condition has the burden to show that her inability to obtain suitable employment elsewhere was proximately caused by the previous compensable injury. Id. at 288.

Decided January 25, 1994

Reconsideration denied February 1, 1994

Irwin, Bladen, Baker & Russell, Ed G. Russell, Jr., for appellants.

Heard, Leverett & Phelps, Cynthia G. Weaver, for appellee.

Although Glaze testified that she sought work from several other employers, her testimony as to these efforts indicates, without elaboration, that the employers did not offer her any employment. As we have previously held, this evidence “is not sufficient to meet her burden as the record is silent on the reasons why she was not hired by any of these other employers.” Landon, supra at 220. Other testimony from Glaze that she was unable to obtain employment because of her condition was not sufficient to sustain her burden. Compare King v. Piedmont-Warner Dev., 177 Ga. App. 176, 177 (338 SE2d 758) (1985).

The superior court erred in reversing the determination of the Board.

Judgment reversed.

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


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A2238.
    BURNETTE et al. v. McCARTER et al.
    (440 SE2d 488)
   Johnson, Judge.

William McCarter and James Davenport filed a complaint in the Superior Court of Union County, alleging that they were defrauded by Clarence Burnette and Dominey-Burnette Underwriters, Inc., who collected insurance premiums from them and then failed to remit the payments to the insurance carrier. Burnette and Dominey-Burnette filed an untimely answer. After Burnette failed to appear for a deposition, McCarter and Davenport filed a motion for sanctions pursuant to OCGA § 9-11-37 (d), asking the court to strike the answer and enter a default judgment. Burnette also failed to appear at the hearing on that motion. The trial court granted the motion, struck the answer of Burnette and Dominey-Burnette, entered default judgment in the amount of $7,716 in favor of McCarter and Davenport and ordered that their claim for punitive damages be determined by a jury. Burnette appeared for the jury trial. The jury awarded punitive damages of $75,000 to McCarter and Davenport. The trial judge made that verdict the judgment of the court. Burnette and Dominey-Burnette filed a motion for a new trial and j.n.o.v. The court denied the motion; Burnette and Dominey-Burnette appeal.

1. Burnette and Dominey-Burnette contend that its motion for a new trial and j.n.o.v. should have been granted because the Union County Superior Court lacked jurisdiction and was an improper venue. These contentions are without merit. The superior court clearly had subject-matter jurisdiction over this fraud action. Ga. Const. 1983, Art. VI, Sec. IV, Par. I; OCGA § 15-6-8; Williams v. Fuller, 244 Ga. 846, 849 (3) (262 SE2d 135) (1979). The superior court also unquestionably had personal jurisdiction over Burnette and Dominey-Burnette because they are residents of Georgia and service of process was timely and properly perfected upon them. OCGA § 9-11-4; Williams v. Fuller, supra.

Furthermore, “[u]nder OCGA § 9-11-12 (b) the defenses of insufficient service, lack of personal jurisdiction and improper venue must be raised ‘before or at the time of pleading.’ [Cit.] Failure to raise these defenses either in the answer or by motion filed before or simultaneously with the answer constitutes a waiver of these defenses. [Cits.]” Whitley v. Hsu, 260 Ga. 539 (397 SE2d 694) (1990). Burnette and Dominey-Burnette did not raise the defenses of lack of personal jurisdiction and improper venue in a motion filed before or with their answer. In their untimely answer, Burnette and Dominey-Burnette also did not expressly raise these defenses, although they did state that they “question” the averment in the complaint that the trial court has personal and subject-matter jurisdiction. This statement in the answer, however, is an improper pleading in that it neither admits nor denies the averment. “A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies.” (Emphasis supplied.) OCGA § 9-11-8 (b).

Moreover, “[e]very defense, in law or fact, shall be asserted in the responsive pleading thereto if one is required.” (Citation and punctuation omitted; emphasis in original.) Orkin Exterminating Co. v. Morrison, 187 Ga. App. 780, 782 (3) (371 SE2d 407) (1988). In their answer, Burnette and Dominey-Burnette failed to assert the defenses of lack of personal jurisdiction and improper venue; not only did they fail to properly deny the averment in the complaint that the court had personal jurisdiction, they also did not even refer to venue in the answer. Burnette and Dominey-Burnette waived those defenses by failing to assert them in the answer or a timely motion. OCGA § 9-11-12 (h). The trial court properly denied their motion for a new trial and j.n.o.v.

Decided January 18, 1994

Reconsideration denied February 1, 1994

Douglas R. X. Padgett, for appellants.

Wesley Williams, for appellees.

2. Although Burnette and Dominey-Burnette complain that the form of the verdict does not comply with the requirements of OCGA § 51-12-5.1, they have not alleged, and there is no indication in the record, that they raised this challenge in the trial court. Burnette and Dominey-Burnette therefore cannot raise it for the first time on appeal. Shaw v. Ruiz, 207 Ga. App. 299, 300 (1) (428 SE2d 98) (1993); Dunkin’ Donuts of America v. Gebar, 202 Ga. App. 450, 453 (3) (414 SE2d 683) (1992). Moreover, even if we assume, without deciding, that the form of the verdict deviated from the requirements of OCGA § 51-12-5.1, Burnette and Dominey-Burnette have failed to show any harm from such deviation. See Hill v. Johnson, 210 Ga. App. 824 (437 SE2d 801) (1993).

3. Burnette and Dominey-Burnette claim that the punitive damages award is not reasonably related to the actual damages inflicted or to their wealth. Because the record does not contain a transcript of the trial, we cannot determine whether the award is reasonable. “An appeal with enumerations of error dependent upon consideration of evidence heard by the trial court will, absent a transcript, result in an affirmance.” (Citations and punctuation omitted.) American Assn. of Cab Cos. v. Abdillahi, 206 Ga. App. 124 (424 SE2d 382) (1992).

4. The appellants’ remaining enumerations of error are not supported by argument or citation of authority and are therefore deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Candler v. Davis & Upchurch, 204 Ga. App. 167, 168 (1) (419 SE2d 69) (1992).

Judgment affirmed.

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


text:
    A93A1912, A93A1913.
    JOHNSON CONTROLS, INC. et al. v. McNEIL; and vice versa.
    (440 SE2d 528)
   Johnson, Judge.

Johnson Controls and its insurer, American Manufacturers Mutual Insurance, appeal from the superior court’s affirmance of an award of the State Board of Workers’ Compensation. McNeil files a cross-appeal.

McNeil suffered an on-the-job injury in September 1991 but continued working until he was laid off in October 1991. When McNeil complained to Johnson of headaches and neck pain which he attributed to the accident, Johnson arranged for McNeil to see Dr. Robert Wiedemeyer. Wiedemeyer signed a form indicating that McNeil was to be off work as of October 31, 1991 pending testing. On November 19, 1991, Wiedemeyer signed a form releasing McNeil to return to normal duty work on December 19, 1991. Wiedemeyer prescribed physical therapy for McNeil’s neck. Johnson commenced paying benefits on December 13, 1991. On December 18, 1991, while traveling from his home to a physical therapy appointment, McNeil was in an automobile accident in which he suffered a broken kneecap. On December 27, 1991, Johnson notified McNeil that benefits would be suspended effective January 2, 1992, based on Wiedemeyer’s opinion that McNeil could return to work beginning December 19, 1991. Johnson also controverted the December 18, 1991 injury. A hearing was conducted in order to determine whether there was a change in condition for the better since the award for the initial accident and whether the December 18, 1991 accident was compensable. The administrative law judge found that the injuries sustained in the automobile accident on December 18 were compensable and that McNeil was entitled to a continuation of benefits on that basis. However, the ALJ also found that it could not be determined from the evidence whether the initial accident continued to be disabling. The ALJ therefore found that McNeil was not entitled to continue receiving benefits for that injury. The appellate division of the state board adopted the ALJ’s award, and the superior court affirmed the board’s decision. We granted Johnson’s application for discretionary appeal.

Case No. A93A1912

Johnson contends that the injuries sustained in the automobile accident did not arise out of and in the course of employment. We agree with Johnson and reverse.

“The purpose of the Workers’ Compensation Act is to protect a worker against unexpected personal injuries arising out of, and in the course of, [his] employment. Workers’ compensation does not cover accidents sustained by an employee outside the scope of [his] employment. The claimant has the burden of demonstrating that [his] claim falls within the Act’s coverage. [He] must prove that the injury for which [he] seeks workers’ compensation benefits arose out of, and in the course of, [his] employment.” (Citations and punctuation omitted.) Combined Ins. Co. v. Peoples, 207 Ga. App. 560, 561 (428 SE2d 391) (1993). We note that the issue of whether an injury arises out of and in the course of employment is a mixed question of fact and law. Lavine v. American Ins. Co., 179 Ga. App. 898, 900 (348 SE2d 114) (1986).

In Combined Ins. Co., supra at 561, we held that an employee’s injuries sustained while en route to a physician’s appointment for treatment of headaches which she related to her prior injuries did not arise out of her employment. Her employer did not schedule or know about the appointment and did not require her to consult the doctor. Thus, we held that the employee’s appointment was for voluntary treatment. Similarly, in Street v. Douglas County Rd. Dept., 160 Ga. App. 559 (287 SE2d 586) (1981), we held that an injury sustained by an employee on his way back to work from a physical therapy appointment, even when the employer knew about and approved of the sessions, was not compensable because the sessions were voluntary. We also noted that where an injury occurs when the employee is free to use the time for his own individual affairs, the injury does not arise out of employment. Id. at 560. On the other hand, in Firestone Tire &c. Co. v. Crawford, 177 Ga. App. 242, 243-244 (2) (339 SE2d 292) (1985), we held that injuries sustained by an, employee while on his way to the doctor’s office were compensable because the trip was not entirely voluntary. The employer required the visit as a precondition to returning to work. Furthermore, transportation was furnished by the employer.

Here, Johnson did not require that McNeil undergo physical therapy as a prerequisite to returning to work. Johnson neither set up the appointment nor provided transportation. Moreover, McNeil was not working the day of the accident and was free to use his time for his own affairs. Thus, the trip was voluntary and the injuries sustained by McNeil in the automobile accident did not arise out of and in the course of his employment. The superior court erred in affirming the board’s award on this issue.

Case No. A93A1913

1. McNeil contends that the board improperly placed the burden upon him to establish that no change in condition occurred which authorized the suspension of benefits for injuries incurred in the first accident. Indeed, the burden of proof was on the employer to justify its unilateral suspension of benefits based upon the assertion that the employee had the ability to return to work. Firestone, supra at 244 (3); see State of Ga. v. Graul 181 Ga. App. 573, 575 (1) (353 SE2d 70) (1987). “By ‘change in condition’ is meant a change in the physical condition of the claimant subsequent to the entering of the award; and where on a hearing requested by the employer to determine change in condition, it does not appear that the claimant’s physical condition has changed for the better since the previous award, the employer cannot prevail even though the previous award erroneously awarded the claimant compensation.” (Citations and punctuation omitted; emphasis in original.) Dalton Jr. College v. Bradley, 184 Ga. App. 571, 572 (362 SE2d 137) (1987). In this case, the ALJ found that the award was entered on December 11, 1991. The final medical report was completed by Dr. Wiedemeyer on November 19, 1991, prior to the employer’s award of benefits. Wiedemeyer’s report does not indicate that any change in condition occurred; it merely contains his conclusion that McNeil will be able to return to work in a month. There is no evidence in the record establishing that McNeil’s condition did in fact improve after December 11, 1991.

The ALJ concluded that since it could not be determined from the evidence that McNeil’s current disability resulted from the initial accident, he was not entitled to continue receiving income benefits for that injury. This conclusion apparently resulted from the ALJ’s improper placement of the burden of proof. If there was insufficient evidence regarding the issue of whether the initial injury continued to be disabling, then the employer failed to meet its burden of proving a change in condition for the better. Since the employer was unable to justify its suspension of benefits, benefits should have continued based on the initial injury.

2. McNeil argues that the board made insufficient findings of fact and conclusions of law on the issue of whether a change in condition occurred following the initial injury. “OCGA § 34-9-102 (f) provides that upon a hearing the administrative law judge shall determine the questions and issues and file the decision with the record of the hearing. . . . The findings of fact must address themselves to the specific facts and material issues raised. The award of the board must state the facts it finds true so that the losing party may intelligently prepare his appeal and the cause may be intelligently reviewed. The findings of fact must be concise but comprehensive as found to be true by the board (or ALJ), upon any material issues of the case.” (Citations, punctuation and emphasis omitted.) Carrollton Coca-Cola &c. Co. v. Brown, 185 Ga. App. 588, 594 (2) (365 SE2d 143) (1988). Although the award indicates that one of the issues to be decided is whether a change in condition occurred after the initial injury, there is no specific finding on that issue. The only finding in the award which even remotely addresses the issue is the statement that it cannot be determined from the evidence whether an impairment of McNeil’s wrist was caused by the September accident; therefore, entitlement to continuing benefits was not established. We hold that the findings of fact are insufficient and incomplete as to whether McNeil experienced a change in condition for the better. Therefore, the judgment of the superior court is reversed with direction that the case be remanded to the State Board of Workers’ Compensation in order that proper findings of fact may be made on that issue. Hopkins v. Martin, 185 Ga. App. 752, 753-754 (365 SE2d 544) (1988).

Decided February 1, 1994.

Swift, Currie, McGhee & Hiers, Robert B. Peery, James B. Finley, for appellants.

Phillip M. Eddings, for appellee.

Judgment in Case No. A93A1912 reversed. Judgment in Case No. A93A1913 reversed with direction.

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


text:
    A93A2168.
    NUCOR CORPORATION v. MEYERS.
    (440 SE2d 531)
   Johnson, Judge.

NUCOR Corporation d/b/a NUCOR Steel filed suit against Alan Meyers. When Meyers’ summons and service copy of the complaint were returned “non est,” a professional process server was retained. The process server claimed to have perfected service on November 22, 1992. Meyers denied having been served and filed a motion to set aside service. NUCOR opposed the motion and filed a motion for default judgment. After a hearing, the trial court granted Meyers’ motion to set aside service and denied NUCOR’s motion for default judgment. The trial court also granted Meyers’ request for attorney fees. NUCOR appeals.

1. NUCOR contends that the trial court erred in basing its decision to set aside service solely upon an airline ticket receipt produced by Meyers. We agree and reverse. At issue is a receipt which shows that an airline ticket was purchased on November 20 in New York for travel December 1, 1992 from Atlanta to what appears to be Newark, New Jersey. Meyers testified that he might have been in New York on November 22, 1992, and proffered the receipt to substantiate that claim. At the same hearing, Meyers testified that he was either in Atlanta or in Columbus on that date. Meyers produced no witnesses to prove his whereabouts. On the other hand, the process server testified that he personally served Meyers in Atlanta at the Calibre Springs Apartment complex on November 22, 1992. Meyers’ stepdaughter testified that she saw Meyers on the afternoon of November 22, 1992 when she went to the Calibre Springs Apartment to pick up her brother after his weekend visit with Meyers. Still, the trial judge stated that the disposition of the motion was “going to turn on the physical evidence of the receipt.” The judge made no findings of fact in his order.

The trial court’s holding is problematic for two reasons. First, the receipt has no relevance regarding Meyers’ whereabouts on November 22, the day service was allegedly perfected. “[A]ny evidence is relevant which logically tends to prove or to disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. (Cit.)” (Punctuation omitted.) Tower Financial Svcs. v. Jarrett, 199 Ga. App. 248, 251 (3) (404 SE2d 622) (1991). The receipt indicates that the ticket was purchased through a travel agency on November 20, 1992. It does not give any indication as to where Meyers was on the date the ticket was purchased. In addition, the receipt indicates that Meyers was to travel from Atlanta on December 1, 1992. If any inference could be drawn from that information, it would be that Meyers was in Atlanta, not New York, prior to December 1, 1992. Finally, even if Meyers was out of town on November 20, 1992, when the ticket was purchased, it does not necessarily follow that he was still out of town two days later. Since the receipt did not tend to prove the fact for which it was admitted, i.e., that Meyers was not in Atlanta on November 22, 1992, the evidence was not relevant. It certainly should not have been considered the evidence upon which the case turned.

Secondly, the receipt was not the type of evidence required for setting aside service. “When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service, The return can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” (Citations and punctuation omitted.) Patterson v. Coleman, 252 Ga. 152 (311 SE2d 838) (1984); Adair Realty Co. v. Parrish, 192 Ga. App. 681 (385 SE2d 770) (1989). The one piece of evidence which the trial court felt dispositive was not clear or convincing. Nor did the information contained in the receipt constitute the strongest evidence admitted. Meyers’ own sworn testimony that he might have been in Atlanta, as well as the sworn testimony of witnesses who said either that Meyers was served or that he was in Atlanta on the date in question was stronger, clearer and more convincing. The trial court erred in finding that Meyers met his burden of proof.

Meyers argues that there was other evidence to support the trial judge’s decision and that the judgment should be affirmed based upon the “right for any reason” rule. This argument is without merit. Here, the trial court specifically stated that his decision was based on the receipt. The “right for any reason” principle does not apply when a judgment is based on an erroneous legal conclusion or theory. Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 843 (1) (392 SE2d 37) (1990). In deciding that the receipt was sufficient for Meyers to meet his burden of proof, when that receipt was irrelevant and the inference the court drew from it was contradicted by direct, testimonial evidence, the trial court committed a legal error. Because the trial court’s ruling rests upon an erroneous legal theory, reversal is required. All Phase Elec. Supply Co. v. Foster & Cooper, 193 Ga. App. 232, 233-234 (2) (387 SE2d 429) (1989). In reversing the trial court’s grant of Meyers’ motion to set aside service, we also vacate the order denying NUCOR’s motion for default judgment. The case is remanded to the trial court for a hearing on NUCOR’s motion for default judgment.

Decided February 1, 1994.

Kitchens, Kelley, Gaynes, Stephen V. Kern, for appellant.

Isenberg & Hewitt, Harriett C. Isenberg, Richard A. Childs, for appellee.

Judith Meyers, pro se.

2. NUCOR contends that the trial court erred in awarding expenses of litigation to Meyers. For reasons set forth in Division 1 above, NUCOR’s opposition to Meyers’ motion was meritorious. Accordingly, Meyers’ motion for fees pursuant to OCGA § 9-15-14 (a), (b) must be reversed. See Jones v. Fulton County, 207 Ga. App. 397, 398-399 (3) (427 SE2d 802) (1993).

3. In light of our holding in Division 1 above, we need not consider NUCOR’s remaining enumeration of error.

Judgment reversed and case remanded.

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


text:
    A93A2354.
    TEXACO, INC. v. YOUNGBEY.
    (440 SE2d 533)
   Johnson, Judge.

Terry Paul Youngbey drove into a service station to purchase gasoline. Youngbey was unable to unlock the gas cap on the vehicle and drove off. A gas station employee, believing Youngbey dispensed gas without paying, gave chase and fired shots at Youngbey. Youngbey was charged with theft but was later acquitted. Youngbey filed suit against Texaco, Inc., the owner and the employee of the gas station. The trial court denied Texaco’s motion for summary judgment despite finding that the owner and employees of the station were not actual agents of Texaco. The trial court held, however, that because the station owner displayed signs bearing the Texaco trade name, a factual issue exists as to whether the owner and employee were the apparent agents of Texaco. On that basis, the court denied Texaco’s motion for summary judgment. We granted Texaco’s application for interlocutory appeal.

Texaco contends that the trial court erred in denying its motion for summary judgment because no material issue of fact exists. Specifically, Texaco argues that the mere display of signs bearing its trade name is insufficient to establish an agency relationship. We agree and reverse.

In order to recover under the theory of apparent agency, a plaintiff must present evidence that, inter alia, the apparent principal represented or held out the apparent agent as such. McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 743 (2) (435 SE2d 51) (1993). The theory of apparent agency folcuses on the actions of the principal rather than the agent. Id. at 743-744 (2). See Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 508-509 (361 SE2d 164) (1987); Hussey, Gay &c. v. Ga. Ports Auth., 204 Ga. App. 504, 506 (1) (420 SE2d 50) (1992). In this case, Texaco made no representations of agency. It had no relationship with the service station in question and had no involvement with the purchase or installation of Texaco signs at the station. The station owner purchased the Texaco signs and Texaco brand motor fuels from Lance Oil, an independent business entity which was authorized to sell Texaco products. The signs were erected and displayed by the owner, not Texaco. Thus, if any agency relationship was implied, it was implied by the actions of the owner, not Texaco.

Furthermore, as stated in Manis v. Gulf Oil Corp., 124 Ga. App. 638 (185 SE2d 589) (1971), displaying a company’s trademark does not create apparent agency. “It is indeed a matter of common knowledge and practice that distinctive colors and trademark signs are displayed at gasoline stations by independent dealers of petroleum products suppliers. These signs and emblems represent no more than notice to the motorists that a given company’s products are being marketed at the station.” (Citations and punctuation omitted.) Id. at 639-640.

Finally, we note that for Youngbey to recover based on an apparent agency theory, he must present evidence that his reliance upon the representation led to his injury. McGuire, supra at 743 (2). Youngbey left the gas station without utilizing any of the employee’s services. He has failed to show either that he relied upon the care or skill of the employee or how his reliance led to the injury complained of. See Richmond County Hosp. Auth., supra at 508-509.

Because Texaco has shown that it is entitled to judgment as a matter of law and there is no genuine issue as to any material fact, the trial court erred in denying Texaco’s motion for summary judgment. Sapp v. Ga. Farm Bureau Mut. Ins. Co., 206 Ga. App. 209, 212 (424 SE2d 871) (1992).

Decided February 1, 1994.

Jones, Cork & Miller, H. Jerome Strickland, Jr., William T. Prescott, for appellant.

Little & Westbury, Victoria D. Little, Thomas E. Westbury, for appellee.

Judgment reversed.

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


author: Birdsong, Presiding Judge.

text:
    A93A2449.
    WILSON v. THE STATE.
    (440 SE2d 534)
   Birdsong, Presiding Judge.

Jason Eric Wilson appeals his conviction of theft by receiving a stolen automobile, in violation of OCGA § 16-8-7. He contends the trial court erred by denying his motions for a directed verdict of acquittal and his motion for a new trial; that the trial court erred by granting the State’s motion for immunity for a witness, and that the trial court erred by allowing the State to attack Wilson’s character. Held:

1. Appellant’s first three enumerations of error maintain that because the State failed to prove that he knew or should have known the automobile was stolen, the evidence was insufficient to allow the case to go to the jury or to sustain his conviction. Construing the evidence in favor of the verdict as we must (Grant v. State, 195 Ga. App. 463 (393 SE2d 737)), we find the evidence establishes that two men stole a 1967 Volkswagen that was in very good, almost factory condition, and that after one of them kept the car for seven months, he transferred the automobile to Wilson with a bill of sale stating Wilson paid $100 for the car. Wilson in fact paid nothing. Later after attempting to sell the car for $500, Wilson sold the car for $350. Subsequently, that purchaser sold the car to another person for $500. The evidence also shows that Wilson told the investigating police officer that he thought something was wrong because he was given the car. Moreover, the evidence further shows that Wilson did not register the car in his name while it was in his possession or purchase new license tags. The jury found Wilson guilty and recited on their verdict that “the defendant may not have known, but he should have known, that the car was stolen.”

A conviction for violation of OCGA § 16-8-7 may be sustained if the evidence shows that the defendant received, disposed of, or retained stolen property which he knew or should have known was stolen, and the offense may be proven by circumstantial evidence. Pruiett v. State, 159 Ga. App. 396, 397 (283 SE2d 625).

Under our law, motions for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law (OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311)); on appeal a reviewing court may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)), and must view the evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436). If a verdict is based upon circumstantial evidence, and the jury is authorized to find the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Pattillo v. State, 250 Ga. 510, 512 (299 SE2d 710); Jones v. State, 165 Ga. App. 36, 38 (299 SE2d 576). As we find that the evidence discussed above did not demand a directed verdict of acquittal, the trial court did not err by denying Wilson’s motion.

Wilson’s contention that the trial judge erred by denying his motion for a new trial under OCGA § 5-5-21 is also without merit. Our law vests in the trial judge alone the discretion to grant a new trial because the verdict might be decidedly and strongly against the weight of the evidence, and this court has no such power. Dixon v. State, 192 Ga. App. 845, 846 (386 SE2d 719). Based upon the evidence discussed above, we do not find that the trial court abused its discretion. Therefore, the trial court did not err by denying Wilson’s motion for a new trial.

Further, on appeal, the presumption of innocence no longer avails and we view the evidence in a light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849). Doing so, we conclude that the jury rationally could have found from the evidence, including the circumstantial evidence, that every reasonable hypothesis was excluded except that Wilson knew or should have known that the automobile in question was stolen, and the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Wilson was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Wilson also contends that the trial court erred by allowing a prosecution witness to testify under a grant of immunity apparently because Wilson was not given notice of the hearing in another proceeding on the grant of immunity and then was not allowed to participate in the decision on whether immunity should have been granted. Although it is not clear from the record when Wilson received notice that the State had moved for the grant of immunity, it is apparent that he was aware of the proceedings prior to the trial. Therefore, Wilson’s defense was not prejudiced by any delay in the notice given. Moreover, Wilson does not contend that there was any violation of OCGA § 24-9-28. Accordingly, we find no error.

Decided February 1, 1994.

Kevin J. Street, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

3. Wilson’s final enumeration of error contends that the trial court erred by allowing the State to attack his character by attacking the character of a State’s witness. We find no merit to this argument. The State’s witness was asked whether Wilson knew the witness had been convicted of theft before Wilson accepted the automobile. This question in no way implicates Wilson’s character, but the information sought is relevant to Wilson’s knowledge of whether the car was stolen. See Prather v. State, 116 Ga. App. 696 (158 SE2d 291). Accordingly, this evidence was not inadmissible even though it might arguably place Wilson’s character in issue to the extent someone might infer that his relationship with a convicted thief reflected adversely upon him. See Drake v. State, 245 Ga. 798, 802 (267 SE2d 237).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A2602.
    HAWKINS v. PLUMBACK.
    (440 SE2d 712)
   Birdsong, Presiding Judge.

William C. Hawkins appeals from the trial court’s dismissal of his cross-claim against Lyn E. Plumback. After Louise Palmer sued Hawkins and Plumback, service was made upon Hawkins on April 17, 1991, and he filed a cross-claim against Plumback on April 29, 1991, but on April 26, 1991, served the cross-claim only on Palmer’s attorney. Subsequently, Hawkins filed an answer to Palmer’s complaint which answer included a separate paragraph stating, “the cross-claim previously filed herein by defendant Hawkins against defendant Plumback by Mr. Hawkins’ attorney Robert S. Windholz is incorporated herein by reference.” This answer and cross-claim was served on Plumback by mail on May 9, 1991. The record below shows that Plumback admitted that he was served with process and Palmer’s complaint on May 31, 1991, and on June 27, 1991, filed his answer to Palmer’s complaint and served the answer on Palmer’s attorney, on Hawkins’ defense attorney, and on Hawkins’ attorney on the cross-claim. Plumback’s answer raised no defense concerning service of the cross-claim and for the next two years Plumback raised no issue concerning this service. Instead, all parties proceeded with discovery and trial preparation, including Plumback’s submission of a pretrial order, without raising any issue concerning service of the cross-claim. Indeed, the record shows Plumback sought to amend his pretrial order submission on June 25, 1993, to add this service issue. Additionally, the record shows that Plumback served Hawkins’ counsel on the cross-claim with all pleadings filed in the case; without reserving or preserving any issue concerning service, Plumback also served discovery on Hawkins.

Decided February 1, 1994.

Robert S. Windholz, for appellant.

Following the dismissal of the original complaint against both defendants on March 19, 1993, Plumback moved to dismiss Hawkins’ cross-claim on June 25, 1993, because he asserted he had never been served with a summons and complaint on Hawkins’ cross-claim. Nevertheless, on the same date, Plumback also moved to have Hawkins’ wife joined as a party plaintiff under OCGA § 9-11-19 because of her potential claims for loss of consortium.

Subsequently Plumback’s motion to dismiss the cross-claim was granted because the trial court found a failure of service of process as to the defendant Plumback. This appeal followed. Held:

Pretermitting whether Plumback was served properly with Hawkins’ cross-claim, Plumback’s conduct waived any issue of service. Although under our law Plumback was not required to answer the cross-claim (Carroll v. Carroll, 237 Ga. 441 (228 SE2d 832)), waiver occurs unless the issue is raised at the first practicable opportunity and waiver will arise from any act by which one consents to the jurisdiction of the court. Hap Farms v. Heard, 209 Ga. App. 684, 685 (434 SE2d 118); Bigley v. Lawrence, 149 Ga. App. 249, 250 (253 SE2d 870). Further, while a party may not assert a cross-claim against one who is not a party (Smithloff v. Benson, 173 Ga. App. 870, 876 (328 SE2d 759)), Plumback was a named party to this action at the time the cross-claim was asserted, and he has not asserted any issue concerning service of Palmer’s complaint. Therefore, he was a party against whom a cross-claim might be asserted. Accordingly, since by his actions, Plumback waived the issue of service of the cross-claim (Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 495 (313 SE2d 709)), the judgment of the trial court dismissing this action must be reversed.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.

Sharon W. Ware & Associates, James F. Cook, Jr., for appellee.


author: Blackburn, Judge.

text:
    A93A2221.
    GILBERT et al. v. RICHARDSON et al.
    (440 SE2d 684)
   Blackburn, Judge.

This action arose out of a motor vehicle collision on September 1, 1991, between the appellants, Tommy and Emma Sue Gilbert, and a Walker County deputy sheriff who was responding to an emergency call to back up another officer. The collision occurred as the Gilberts proceeded through an intersection pursuant to a green light and the deputy ran the red light. Whether or not the deputy utilized her lights and siren upon approaching the intersection was disputed.

On November 24, 1992, the Gilberts commenced this action against the deputy sheriff and the sheriff, seeking recovery for personal injuries and loss of consortium resulting from the collision. The trial court granted summary judgment for the defendants on the grounds that they were immune to suit under the doctrine of sovereign immunity, and this appeal followed.

1. Prior to the ratification of the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, the sovereign immunity of the State or any of its departments and agencies was waived in tort actions to the extent of any liability insurance provided. Although the former constitutional provision regarding sovereign immunity did not specifically refer to counties, it was applied to such as branches of the State. Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985).

The 1991 amendment to Art. I, Sec. II, Par. IX (e) extended sovereign immunity “to the state and all of its departments and agencies,” regardless of any liability insurance purchased. Considering essentially the same language contained in the former constitutional provision, the Supreme Court concluded that the reservation of sovereign immunity to the State likewise reserved it for the counties. Toombs County v. O’Neal, supra. Similarly, the 1991 amendment’s extension of sovereign immunity to the State and its departments and agencies must also apply to counties. The Gilberts’ cause of action arose after the effective date of the 1991 amendment (January 1, 1991), and is governed by that amendment.

Subparagraph (e) of the amended Art. I, Sec. II, Par. IX provides that the sovereign immunity of the State and its departments and agencies can be waived only by an Act of the General Assembly, and subparagraph (a) specifies that one of the ways the General Assembly could waive the State’s immunity would be by enacting a State Tort Claims Act. Subsequently, the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., was enacted, effective July 1, 1992. However, by its express terms, that Act does not apply to counties. OCGA § 50-21-22 (5).

Nevertheless, nothing in the 1991 amendment limits Acts of the General Assembly waiving immunity to those enacted after the amendment, and nothing therein invalidates by implication any preexisting Act that waived to some extent the immunity for the State and its departments and agencies, including counties. To hold otherwise would result in the legislature having to re-enact existing laws, rather than simply leaving them in place. Further, repeals by implication are not favored. State Bd. of Ed. v. County Bd. of Ed. of Richmond County, 190 Ga. 588, 592 (10 SE2d 369) (1940). The only implication as to the repeal of existing waiver statutes is that the General Assembly intended not to disturb such statutes governing waiver of sovereign immunity for counties, inasmuch as it had the opportunity to void them when it enacted the Georgia Tort Claims Act and did not do so.

With regard to tort claims arising out of the operation of a motor vehicle owned by a county, OCGA § 33-24-51 (b) provides that whenever a county purchases liability insurance for the negligence of any duly authorized agent or employee in the performance of his official duties, “its governmental immunity shall be waived to the extent of the amount of insurance so purchased.” Cf. Ekarika v. City of East Point, 204 Ga. App. 731 (420 SE2d 391) (1992). Although it was enacted prior to the 1991 constitutional amendment, OCGA § 33-24-51 (b) is such an Act of the General Assembly envisioned by the 1991 amendment, legislatively waiving sovereign immunity to the extent of any liability insurance purchased by a county. It follows that a county’s purchase of liability insurance covering its law enforcement officers in their performance of their official duties results in a waiver of its sovereign immunity, to the extent of the amount of that insurance.

In this case, Walker County participated in a risk-sharing arrangement with the Association of County Commissioners of Georgia Interlocal Risk Management Agency, authorized under OCGA § 36-85-1 et seq. Under OCGA § 36-85-20, “[t]he exercise by a municipality or county of the authority provided in this chapter shall not constitute the provision of liability insurance protection under Article I, Section II, Paragraph IX of the Constitution of the State of Georgia. The participation by a municipality or county as a member of an agency authorized by this chapter shall not constitute the obtaining of liability insurance and no sovereign immunity shall be waived on account of such participation.” (Emphasis supplied.) The interlocal risk management plan in which Walker County participated certainly resembled an insurance plan, but did not constitute insurance, under the express terms of OCGA § 36-85-20.

In Adams v. Perdue, 199 Ga. App. 476 (405 SE2d 305) (1991), this court applied the express terms of OCGA § 36-85-20 and found that a municipality had not waived its sovereign immunity by its participation in such an interlocal risk management plan. Despite recognizing the legislative intent not to waive sovereign immunity and not to allow participation in the program to constitute liability insurance, the Supreme Court subsequently disapproved of Adams, on the grounds that OCGA § 36-85-20 was inconsistent with the former Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, which provided for waiver of sovereign immunity to the extent of any liability insurance purchased by the government. Hiers v. City of Barwick, 262 Ga. 129 (414 SE2d 647) (1992).

However, as discussed above, the 1991 constitutional amendment eliminated the provision which waived sovereign immunity where liability insurance was purchased by a government entity, and instead provided that such waiver could be accomplished only by an Act of the General Assembly. Inasmuch as the 1991 amendment governs this case, the only basis in Hiers for not applying the express terms of OCGA § 36-85-20 no longer exists. Accordingly, the constitutional infirmity of OCGA § 36-85-20 having been removed, Walker County’s participation in the interlocal risk management plan did not constitute liability insurance and did not result in a waiver of its sovereign immunity, pursuant to that statute.

2. Under Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), state officials acting in their official capacities are immune from liability for negligent acts that are discretionary rather than ministerial. In Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990), involving a motor vehicle collision with a deputy sheriff who was not using his blue light and siren when he failed to yield a right-of-way, the Supreme Court held that the police officer’s decision to rush to an emergency scene constituted a discretionary act.

OCGA § 40-6-6 authorizes law enforcement officers to disregard certain rules of the road when responding to emergency calls, provided they use an audible signal and a flashing or revolving blue light. The General Assembly’s coupling its recognition of the need to disregard certain rules of the road in some situations with its imposition of safety precautions before such disregard is permitted, suggests that the failure to comply with the required safety measures in operating a patrol car should be considered a ministerial act. That is, the statute removes all discretion from law enforcement officers responding to emergency calls, as to whether to use an audible signal and a flashing or revolving blue light.

In Logue, the Supreme Court conceded that the police officer “had no discretion to violate the law by failing to activate his blue light and siren.” Id. at 207. Nevertheless, it concluded that the officer’s decision to speed to the emergency scene constituted a discretionary act for which he enjoyed immunity, notwithstanding his performance of that discretionary act in a negligent manner. Logue controls the instant case, and we are constrained to follow it.

Decided January 24, 1994

Reconsideration denied February 2, 1994

Hill & Henry, William R. Hill, Jr., for appellants.

Leitner, Warner & Moffitt, George W. Carpenter, Stuart F. James, Strang, Fletcher, Carriger, Walker, Hodge & Smith, Larry L. Cash, for appellees.

Our holding here does not render interlocal risk management plans nugatory, inasmuch as any negligent ministerial act performed by a law enforcement officer ostensibly would be a covered event under such a plan. However, the interlocal plan participated in by Walker County provides no benefit in the instant case, where Logue requires finding the deputy’s high-speed response to an emergency call to be a discretionary act protected by sovereign immunity. Accordingly, the trial court properly granted summary judgment for the defendants.

Judgment affirmed.

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


text:
    A92A0558.
    RUIZ v. PARDUE et al.
    (441 SE2d 102)
    Decided February 2, 1994.

      Bauer, Deitch & Kline, Craig T. Jones, Thomas C. Blaska, for appellant.

      Heyman & Sizemore, William B. Brown, William H. Major, Long, Weinberg, Ansley & Wheeler, Robert D. Roll, Gray, Gilliland & Gold, T. Jeffery Lehman, Sharon W. Ware & Associates, Emory A.

      Wilkerson, for appellees.
   Birdsong, Presiding Judge.

The Supreme Court having reversed our judgment in this case reported at Ruiz v. Pardue, 204 Ga. App. 566 (420 SE2d 1), the Supreme Court’s judgment reported at Pardue v. Ruiz, 263 Ga. 146 (429 SE2d 912) is made the judgment of this court and the summary judgment awarded below to Pardue to be affirmed in accordance therewith.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: Andrews, Judge.

text:
    A92A1306.
    A92A1307.
    AVELAR et al. v. SCAFFOLDING & SHORING SYSTEMS, INC. et al. MAYO-TORRES v. SCAFFOLDING & SHORING SYSTEMS, INC. et al.
    (441 SE2d 102)
    Decided February 2, 1994.

      Bauer, Deitch & Kline, Craig T. Jones, Thomas C. Blaska, for appellants.

      Heyman & Sizemore, William B. Brown, William H. Major, Long, Weinberg, Ansley & Wheeler, Robert D. Roll, for appellees.
   Andrews, Judge.

The facts underlying the procedural history of these cases are outlined in Avelar v. Scaffolding &c. Systems, 206 Ga. App. 682 (426 SE2d 673) (1992). As explained in the earlier appearance of these cases, the parties here filed a motion to consolidate these cases with Ruiz v. Pardue, 204 Ga. App. 566 (420 SE2d 1) (1992), which involved the same facts and legal issues. At the time of the motion, the decision from this court in Ruiz had issued, certiorari had been granted in Ruiz, and that case was pending in the Supreme Court. We noted these facts and, as in Ruiz, held that the trial court erred in granting summary judgment to Pardue and did not err in granting summary judgment to Scaffolding & Shoring Systems, Inc.

The Supreme Court ordered the cases consolidated with Ruiz, supra, and in Pardue v. Ruiz, 263 Ga. 146 (429 SE2d 912) (1993), reversed our decision. Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgments affirmed.

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


text:
    A93A2139.
    THE STATE v. BEALL.
    (440 SE2d 537)
   Johnson, Judge.

Thomas Anthony Beall was accused of driving a motor vehicle while under the influence of alcohol. He filed a pre-trial motion to suppress the results of two breath tests. The trial court granted Beall’s motion and the State appeals. We affirm.

After being stopped by the police, Beall was given several field sobriety tests and then taken to the police station for testing on an Intoximeter 3000. The testimony regarding the intoximeter test conflicts greatly. According to Beall’s testimony, before the first test was administered, the police officer who was to give the test stated that he was working on the Intoximeter 3000 and that it would be a few minutes before Beall could be tested. The officer stated that the machine did not work “half of the time.” At the officer’s request Beall breathed into the machine. After again remarking that the Intoximeter 3000 was not working, the officer tore off and threw away the tape and ordered Beall to blow into the machine a second time, which he did. When Beall saw the results, he stated that the machine must have been wrong and asked to be tested on another machine. Although Beall made several more requests to be tested on a different machine, the officer told him that he could only be retested on the same one, despite the fact that there was another Intoximeter 3000 located in the same room. Beall was then given a second test by the same officer on the same machine. The record is silent as to what the results of either test were. Beall’s wife, who was also present during testing, corroborated his testimony. The officer who administered the test, however, denied both that there was a problem with the machine and that Beall requested to be tested on a different machine. Beall filed a motion to suppress the test results claiming that he was denied the right to have an independent test as provided by OCGA § 40-6-392 (a) (3). The written order does not specify the reasons for the trial judge’s grant of Beall’s motion to suppress. However, at the close of the hearing the trial judge stated that if Beall wanted a second test he should have been given one on a different machine, especially considering the ready availability of another machine.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” (Citations and punctuation omitted.) State v. Suddeth, 207 Ga. App. 103, 105 (427 SE2d 76) (1993). We note that the State acknowledged in its closing argument that the issue of whether Beall requested an independent test on a different machine was a factual one. Construing the evidence in a light most favorable to upholding the trial court’s order, we find that Beall did request testing on a different machine and that another one was readily available.

OCGA § 40-6-392 (a) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood, urine, breath or other bodily substance performed by a qualified person of his own choosing, in addition to any test performed at the direction of a law enforcement officer. “[T]here is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. ... It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test.” (Citation and punctuation omitted.) Butts v. City of Peachtree City, 205 Ga. App. 492, 493 (2) (422 SE2d 909) (1992).

Decided February 2, 1994.

Keith C. Martin, Solicitor, Elizabeth A. Baker, Assistant Solicitor, for appellant.

Paul S. Weiner, for appellee.

The State argues that the officer made a reasonable effort to accommodate Beall and that if Beall wanted to be tested on another machine, he was responsible for making those arrangements, which he failed to do. Under the particular facts of this case, this argument is without merit. The reliability of that particular machine was called into question after the officer made admissions in the presence of Beall and his wife that the machine was not functioning properly. Under these circumstances, we find that Beall’s request to be tested on another machine constituted an assertion of his right to an independent test pursuant to OCGA § 40-6-392 (a) (3). Considering the fact that another functioning Intoximeter 3000 was available, the trial court was authorized to find that the officer did not make a reasonable effort to accommodate Beall’s requests to obtain an independent test. See Butts, supra at 493-494; compare Caldwell v. State, 202 Ga. App. 729, 730 (2) (415 SE2d 653) (1992) (accused not deprived of opportunity to obtain independent test where he failed to specifically request a different type of test in a timely fashion). We also note that under the particular facts of this case the trial court would have been authorized to find that the particular Intoximeter 3000 machine used for the test was not functioning properly and suppressed the test results on that basis.

Judgment affirmed.

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


text:
    A94A0164.
    HAYES v. THE STATE.
    (440 SE2d 539)
   Blackburn, Judge.

The appellant, James Hayes, was convicted of aggravated assault, for which he was sentenced to 20 years’ imprisonment. On appeal, he contends that the trial court erred (1) in denying his amended motion for new trial based on ineffective assistance of trial counsel, (2) in excluding evidence of the victim’s bias, and (3) in failing to conduct a presentence hearing.

The victim testified that on August 7, 1990, as he was sitting on the front porch of a friend’s residence, Hayes walked up to within ten feet, pulled out a nine millimeter pistol, and shot him four times. The victim ran away from the scene as Hayes fired several more shots that missed him. A friend of the victim who was present essentially corroborated the victim’s testimony, and also positively identified Hayes as the shooter.

The investigating officer went to the scene later in the evening, and found no spent bullet casings on the ground, which suggested the possibility that someone had removed them. He was informed by witnesses that immediately following the shooting, Hayes jumped in a car and sped away. Hayes eventually was arrested four months later in New Jersey, and was extradited back to Georgia.

Hayes testified that he had approached the victim on the day in question to tell him to stop giving Hayes’ nephew drugs to sell. The victim had mocked his request, and then several shots rang out, causing everyone to scatter. Hayes thought that the shots came from the direction of a park about one-half block away.

1. Hayes was represented during the trial by retained counsel. Following Hayes’ conviction, trial counsel filed a motion for new trial, but died before any ruling on the motion. Subsequently, Hayes’ present counsel filed an amended motion for new trial asserting that trial counsel had provided ineffective assistance in that he failed to make relevant pretrial motions; did not secure the attendance of critical witnesses; did not make timely objections; did not impeach the State’s witnesses; did not move for directed verdict of acquittal; did not call witnesses to support his case; and did not request a presentence hearing.

In order to demonstrate ineffective assistance of counsel, a criminal defendant must show that trial counsel’s performance was deficient, and that the deficient performance prejudiced the defense, i.e., that there was a reasonable probability that, but for trial counsel’s unprofessional errors, the outcome of the case would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brady v. State, 206 Ga. App. 497 (4) (426 SE2d 15) (1992). Trial strategy and tactics do not equate with ineffective assistance of counsel. Garrett v. State, 196 Ga. App. 872 (397 SE2d 205) (1990).

With regard to pretrial motions, Hayes complains only of the failure to file a Brady motion. However, he made no showing that trial counsel was not afforded access to the State’s file or that there was any exculpatory material in that file. Hayes’ assumption, based upon the State having filed a motion in limine to exclude evidence of the victim’s character, that the State’s file must have contained evidence of the victim’s criminal convictions is insufficient to make such a showing.

With regard to the alleged failure to secure the attendance of and call critical witnesses at the trial, Hayes identified three potential witnesses during the hearing on the motion for new trial. However, one of those three was too drunk to attend the hearing, and one was Hayes’ nephew, who acknowledged that he had never informed Hayes’ trial counsel that he had witnessed the incident. (The record also shows that the nephew failed to show up for the trial in any event.) The third witness essentially corroborated Hayes’ version of the event, but trial counsel had interviewed her, and made a tactical decision not to call her as a witness. See Cauley v. State, 203 Ga. App. 299 (416 SE2d 575) (1992).

Other omissions complained of by Hayes include trial counsel’s failure to raise more than a few objections during the State’s presentation of its case, particularly in regard to leading questions asked by the prosecutor; his failure to impeach the State’s witnesses; and his failure to request a presentence investigation and hearing. However, with regard to the lack of objections and presentence procedures, Hayes has not shown how he was harmed by these omissions. Concerning the failure to impeach the State’s witnesses, he made no showing as to how such could have been properly accomplished.

Lastly, Hayes asserts that trial counsel was deficient in failing to move for directed verdict of acquittal. Viewed in the light most favorable to the jury’s verdict, the evidence was sufficient for a rational trier of fact to find Hayes guilty beyond a reasonable doubt of aggravated assault as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, a motion for directed verdict of acquittal would have been futile, and the failure to do so in no way constituted a deficient performance.

“A defendant is entitled not to perfect representation but to reasonably effective assistance. The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. The trial court’s finding in the instant case is not clearly erroneous.” (Citations and punctuation omitted.) Brady v. State, supra at 500-501.

2. The trial court disallowed any evidence regarding the victim’s alleged drug trafficking other than Hayes’ own testimony about his telling the victim to stop giving his nephew drugs to sell, on the grounds that it impermissibly placed the victim’s character in issue. Hayes contends that this prohibition erroneously excluded evidence that would have demonstrated the victim’s motive and bias against him, i.e., that the victim falsely accused him to eliminate further interference with his drug dealing.

Review of the record shows that during the hearing on the State’s motion in limine, defense counsel expressed the intention of presenting evidence that the victim was a drug dealer who accused Hayes because the latter was interfering with his drug dealing. The trial court agreed to allow defense counsel to present such evidence, but only by Hayes’ own testimony regarding the circumstances of his confrontation with the victim. In response to the trial court’s ruling, defense counsel stated, “Okay, that’s fine.” Later in the hearing, however, defense counsel declared his intention of also having Hayes’ nephew testify about the victim’s drug dealing, and the trial court instructed him that such inquiry would not be allowed.

A criminal defendant is entitled to show the state of a witness’s feelings'towards him and the witness’s relationship to him. OCGA § 24-9-68; Boggs v. State, 195 Ga. App. 605 (394 SE2d 401) (1990). During the trial, Hayes actually testified, over the State’s objection and motion for mistrial, that the victim sold drugs for a living and had furnished his nephew with drugs, which had prompted the confrontation between them. Hayes’ nephew failed to show up for the trial, and the trial court’s ruling thus resulted in no curtailment of Hayes’ right to show the bias of the victim.

3. Following the return of the jury’s verdict, Hayes began a profane tirade addressed to the trial court, during which he also became physically agitated. When the bailiff and Hayes’ mother finally restrained Hayes, the trial court immediately sentenced him to 20 years’ imprisonment.

Hayes contends that the trial court’s failure to conduct a presentence hearing as required under OCGA § 17-10-2 entitles him to a remand as to the sentence. See Howard v. State, 161 Ga. App. 743, 746 (289 SE2d 815) (1982). No objection was made at trial to the omission, but the failure to follow the mandate of OCGA § 17-10-2 is neither harmless nor waived by the failure to object to procedure. Jefferson v. State, 205 Ga. App. 687 (423 SE2d 425) (1992). The trial court’s immediate imposition of the sentence in the instant case is understandable under the circumstances, but the omission of the mandatory presentence hearing requires reversal of the sentence and remand of the case for resentencing in accordance with OCGA § 17-10-2 (a). Id.

The State contends that Hayes forfeited his right to a presentence hearing by his outrageous conduct. However, although OCGA § 17-10-2 provides no guidelines regarding the appropriate response to a defendant’s disruptive behavior during a presentence hearing, the situation may be likened to cases involving defendants who are disruptive during the trial itself. In that situation, there are at least three permissible ways to handle such defendants: (1) bind and gag them, which allows continued presence in the courtroom; (2) cite them for contempt; and (3) removal until a promise of proper conduct is made. See State v. Fletcher, 252 Ga. 498 (314 SE2d 888) (1984).

Decided February 2, 1994.

Musgrove & Lamb, Lewis R. Lamb, for appellant.

Britt R. Priddy, District Attorney, David E. Perry, Assistant District Attorney, for appellee.

In the instant case, inasmuch as the record indicates that Hayes eventually was restrained, it may have been possible to complete the presentence hearing without further disruption. In any event, the failure to complete the hearing, with or without the defendant’s presence, requires resentencing.

Judgment of conviction affirmed; sentence reversed and case remanded with direction.

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


text:
    A94A0186.
    KIRKLAND v. THE STATE.
    (440 SE2d 542)
   Blackburn, Judge.

The appellant, Edward Kirkland, was convicted by a jury of child molestation and sentenced to 20 years in prison to serve 15 years. On appeal, he contends that the trial court erred in failing to direct a verdict of acquittal based upon the insufficiency of the evidence to support a conviction, and erred in admitting evidence of prior similar transactions. We affirm.

At trial, the victim testified that she initially met Kirkland while attending a church where Kirkland served as a deacon. Kirkland often drove the church’s van and would transport the victim and other members to the church. Since the victim was nine years old, her parents allowed her to work on Kirkland’s farm and pick okra along with other children during the summer months. In June or early July 1987, prior to her fourteenth birthday, the victim was working on Kirkland’s farm when Kirkland held her hands above her head, fondled her body, and had sexual intercourse with her in his daughter’s bedroom. He warned her that if she told anyone of the incident, she would not be believed because of his position in the church.

The victim further testified about another incident which occurred within the same time period while Kirkland was transporting her home after she had picked okra on his farm. She had been initially riding in the rear of the truck when Kirkland stopped the truck and asked her to join him in the passenger compartment. Kirkland subsequently asked the victim if he could hold her arms to see a rash that had developed on her arms as a result of her picking okra. As he held her arm, he touched the side of her breast.

An anonymous telephone call was received by the Department of Family & Children Services concerning allegations of sexual abuse of the victim and the sheriff’s department was notified of the allegations. The next day, a meeting was held in the office of the school’s guidance counselor, and, during the meeting, the victim reluctantly informed the guidance counselor, an investigator with the sheriff’s department, and a representative of the Department of Family & Children Services, all of whom testified at trial, of the acts of molestation committed against her by Kirkland.

Kirkland testified at trial, and denied molesting the victim. He maintained that the victim was testifying falsely against him in retaliation for his failure to transport the victim and her brother home from church, and his reprimand of the victim for her conduct on the church bus and at church. Kirkland presented the testimony of his wife, daughter, and several character witnesses in support of his defense.

1. Initially, Kirkland maintains that the evidence produced at trial was insufficient to warrant a conviction because the State failed to prove beyond a reasonable doubt that he committed any acts of molestation against the victim during the applicable time period. Specifically, he argues that the victim’s testimony concerning the incident which occurred inside his truck only raises a speculation of guilt which is insufficient to support a conviction. We disagree.

The evidence produced at trial showed that Kirkland fondled the victim’s body and forcibly engaged in sexual intercourse with her between June and early July 1987, prior to her fourteenth birthday. Contrary to Kirkland’s contentions, this evidence provided more than a mere speculation of . his guilt, and in fact, provided direct evidence of his molestation of the victim in violation of OCGA § 16-6-4 as charged in the indictment. Viewing the evidence in the light most favorable to the jury’s verdict, we must conclude that there was ample evidence from which a rational trier of fact could find Kirkland guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Burke v. State, 208 Ga. App. 446 (2) (430 SE2d 816) (1993).

We reject Kirkland’s assertion that a directed verdict of acquittal was warranted. “A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ When a conviction is upheld on appeal because the evidence is such that a rational trier of fact could find the appellant’s guilt beyond a reasonable doubt, according to the standard in Jackson v. Virginia, [supra], it cannot possibly be said the evidence demanded a verdict of acquittal.” (Citations and punctuation omitted.) Clark v. State, 207 Ga. App. 50, 51 (1) (427 SE2d 43) (1993). The evidence produced at trial in this case was in sharp conflict, and accordingly, a “not guilty” verdict was not demanded.

2. Next, Kirkland maintains that the trial court erred in admit-the evidence of prior occurrences of molestation committed by him against three individuals who also worked for him during their childhood years. Kirkland argues that the prior occurrences were too remote and not sufficiently similar to warrant admission.

“Generally, on a prosecution for a particular crime, evidence of independent offenses committed by an accused is irrelevant and inadmissible. Before any evidence of an independent offense may be introduced, the state must show 1) that the evidence is relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character; 2) that there is sufficient evidence to establish that the accused committed the independent offense or act; and 3) that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Cantrell v. State, 210 Ga. App. 218, 220 (435 SE2d 737) (1993). See also Williams v. State, 261 Ga. 640 (2) (409 SE2d 649) (1991). Moreover, the evidence is not admissible unless its relevancy outweighs any prejudices that it creates. Brunson v. State, 207 Ga. App. 523 (428 SE2d 428) (1993).

At the pre-trial hearing to determine the admissibility of the evidence of the prior occurrences, three witnesses testified about acts of molestation committed by Kirkland against them while they worked on his farm. The initial witness testified that she was approximately eleven or twelve years old when Kirkland fondled her breasts and placed his penis between her legs while the two were in a pond located on his farm. The second witness testified that she was fondled all over her body by Kirkland as she sat on a bed after he escorted her to a bathroom at the farm. At trial, she testified about another incident in which Kirkland had fondled her on the church’s bus, but she was unable to recall the specific details of this incident on the day of the hearing. The last witness was approximately ten or eleven when he placed his hand in her shirt and down her pants and fondled her while the two were walking down to the okra patch on the farm. She was warned that she would not be believed if she informed anyone of the incident. All of the witnesses attended the same church as Kirkland and two of the witnesses are cousins of the victim herein. The evidence was submitted by the State to show identity, motive, plan, scheme, bent of mind and course of conduct, purposes deemed appropriate in Williams, surpa.

Although Kirkland maintains that the prior offenses are not sufficiently similar to the offense committed in the case at bar, we conclude otherwise. On the contrary, the evidence showed that Kirkland sexually abused young members of his church under the age of 14 while they were entrusted in his care and under his supervision at his farm. In fact, he warned one of the witnesses and the victim herein that if they disclosed the incidents, they would not be believed because of his respected position in the church. Moreover, as this court has repeatedly held, “[i]n a child molestation case, the sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.” (Citations and punctuation omitted.) Self v. State, 208 Ga. App. 447, 448 (1) (431 SE2d 126) (1993).

We likewise reject Kirkland’s assertion that the prior incidents were inadmissible because the acts were too remote in time from the present offense. The ten-year lapse of time between the earliest prior occurrence and the offense charged does not warrant the exclusion of the occurrence as a matter of law. As the Supreme Court held in Gilstrap v. State, 261 Ga. 798 (1) (410 SE2d 423) (1991), “lapses of time of 11 years and of 19 years have not demanded that the evidence was inadmissible.” (Citations omitted.) Moreover, “ ‘(t)he lapse of time between the prior occurrences and the offenses charged goes to weight and credibility of such testimony, not its admissibility.’ [Cit.]” Braddock v. State, 208 Ga. App. 843, 844 (2) (432 SE2d 264) (1993). “Rather, lapse of time is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.” (Citations and punctuation omitted.) Childs v. State, 202 Ga. App. 488, 489 (1) (414 SE2d 714) (1992).

Decided February 2, 1994.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

The trial court, after weighing the relevancy of the evidence against any possible prejudicial effect of its admission, specifically found in its February 24, 1992, order that the State had met the three-prong test governing the admissibility of this evidence. Considering the evidence produced by the State showed that Kirkland committed the sufficiently similar acts of molestation against young female victims, and the evidence was admitted for purposes deemed appropriate under Williams, surpa, we must conclude that the trial court’s admission of this evidence was not erroneous. See Cantrell, supra.

Judgment affirmed.

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

       Kirkland was initially indicted for the offense on August 17, 1990, and the indictment was nolle prossed. Kirkland was re-indicted on September 17, 1991. Kirkland filed a plea in bar and moved for the dismissal of the second indictment based upon the expiration of the four-year statute of limitation contained in OCGA § 17-3-1. Although the statute was amended in 1987 to provide for a seven-year period of limitation for felonies committed against children under the age of fourteen, the amendment only applies to offenses committed after July 1, 1987. Martin v. State, 196 Ga. App. 145 (1) (395 SE2d 391) (1990). The court denied the motion to dismiss the second indictment, implying that the initial indictment was valid. Consequently, the court specifically limited the introduction of evidence of molestation to incidents which occurred between August 17, 1986, and July 8, 1987, the date of the victim’s fourteenth birthday.

       Although Kirkland objected at trial to the admission of the testimony of these witnesses, he does not challenge the admission of this testimony in this appeal.


text:
    A94A0190.
    J. H. HARVEY COMPANY v. JOHNSON.
    (440 SE2d 548)
   Blackburn, Judge.

The appellee, Sharon Johnson, slipped and fell to the floor in a puddle of water which allegedly accumulated from coolers defrosting in a supermarket owned and operated by the appellant, J. H. Harvey Company (Harvey). Johnson testified on deposition that there were no employees of Harvey’s Supermarket in the vicinity at the time of her fall and she did not know of any employee with knowledge of the hazard at the time of the fall. In this action for damages against Harvey arising from the injuries Johnson sustained in the fall, Harvey moved for summary judgment, and the motion was denied by the trial court. We granted Harvey’s interlocutory application to determine whether summary adjudication was warranted.

“In order to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of a foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).” Lea v. American Home Equities, 210 Ga. App. 214, 215 (435 SE2d 734) (1992). “Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises. . . .” (Citations and punctuation omitted.) Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3 (432 SE2d 230) (1993).

In the case sub judice, although management had knowledge of the periodic defrosting of the meat cooler, the record does not show that any employee or manager of the supermarket had actual knowledge of the alleged water leakage onto the floor prior to Johnson’s fall. Inasmuch as the evidence of record appears to be sufficient to show that Harvey lacked actual knowledge of the hazard and no employee of the supermarket was in the immediate vicinity at the time of the fall, our inquiry must focus on whether Harvey has effectively negated Johnson’s allegation that it failed to reasonably inspect its premises for the safety of invitees.

A manager testified on deposition that the store regularly and routinely inspected the floor in the area of the fall every day. In fact, the produce clerk specifically assigned to inspect the floor in the area of Johnson’s fall testified by affidavit that he inspected the area 30 minutes prior to Johnson’s fall and if there had been any foreign substance in the area at the time, he would have seen the substance and removed it. “[W]here there is evidence showing that a reasonable inspection and/or cleaning procedure is in place and had been followed, normally no actionable constructive knowledge can be charged to the proprietor. [Cits.]” Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362) (1992). Consequently, we must conclude that Harvey was entitled to summary judgment as a matter of law because the record does not show that the supermarket had actual or constructive knowledge of the hazard.

Moreover, “not only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence.” (Citation and punctuation omitted.) Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). While on the proprietor’s premises, “[t]he customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Emphasis supplied; citation and punctuation omitted.) Hudson v. Quisc, Inc., 205 Ga. App. 840, 841 (424 SE2d 37) (1992); Smith, supra.

Decided February 2, 1994.

Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, Sherry S. Harrell, for appellant.

Beauchamp & Associates, William Eckhardt, for appellee.

In the case at bar, Johnson specifically testified on deposition that prior to her fall, she looked ahead toward an ice cream cooler and did not look at the floor in front of her as she turned the corner of the aisle in her bedroom slippers. She admitted that nothing obstructed her view of the floor or prevented her from looking at the floor, and that she would have seen the one-foot wide, two-feet long puddle of water had she been looking at the floor. While we do recognize that Johnson was not required to look continuously, without intermission, for defects on Harvey’s premises, “[i]t was incumbent upon her, as a matter of law, to use her eyesight for the purpose of discovering any discernible obstruction or defect in her path.” (Citations and punctuation omitted.) Froman v. George L. Smith, Ga. World &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990). In Kroger Co. v. Barentine, 210 Ga. App. 795 (437 SE2d 629) (1993), we recently reversed the trial court’s denial of Kroger’s motion for new trial and motion for directed verdict where the plaintiff therein admitted on deposition that he would have seen the puddle of liquid if he had been looking at the floor prior to his fall. In addition, contrary to her contentions, Harvey did not have a duty to warn her of the hazardous condition of which she had equal knowledge. Smith, supra. Hence, Johnson failed to exercise ordinary care for her own safety, and therefore cannot recover. Hudson, supra.

Judgment reversed.

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


text:
    A94A0232.
    GAYDOS v. GRUPE REAL ESTATE INVESTORS et al.
    (440 SE2d 545)
   Blackburn, Judge.

The appellant, Sue Gaydos, commenced this action against Grupe Real Estate Investors 42 and Grupe Management Company (Grupe), seeking to recover for injuries sustained when she tripped and fell on the parking lot of the apartment complex in which she resided. The trial court granted summary judgment for Grupe, and this appeal followed.

The record shows that at approximately 1:30 p.m. on April 1, 1991, Gaydos exited her apartment and, instead of using the paved walkway to the parking lot provided for such purpose, cut across the lawn to get to her car. As she approached the sloping concrete curb of the parking lot, she was looking straight ahead, and tripped and fell when she stepped down at the curb. Although Gaydos had lived in the apartment complex for several months, she claimed that she had never traversed this route to her car prior to this incident. There also was no evidence that others had used this route to access the parking lot.

The maintenance supervisor of the apartment complex was called to the scene immediately following Gaydos’ fall. He observed the sloping curb and an expansion joint from which a crack extended, but there were no holes or unevenness about the curb. The asphalt pavement of the parking lot was a little uneven where it joined the curb. He had previously inspected the parking lot for hazardous defects in March 1991, at which time he observed the crack in the concrete apron, but he had not considered it to be hazardous.

Approximately seventeen months after the fall, the plaintiff’s expert, a structural engineer, examined the parking lot site in question and found the crack to be nineteen inches long, and three inches across at its widest point. Because both sides of the crack had deteriorated, the engineer opined that the hazardous condition would have existed in March 1991, when the maintenance supervisor inspected the parking lot. He also viewed photographs of the site taken on the day of the fall and found them to depict a trip hazard, but he did not specify the hazard. The engineer further averred that while approaching the site as Gaydos had done, the hazard would not have been visible upon ordinary inspection by a person walking in an ordinary manner.

An owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for any invitees. OCGA § 51-3-1. However, an owner or occupier of land is not an insurer of an invitee’s safety. Rather, the basis of an owner/occupier’s liability to an invitee injured on the premises is the owner/occupier’s superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. Pound v. Augusta National, 158 Ga. App. 166 (279 SE2d 342) (1981). On the other hand, an invitee must exercise ordinary care to avoid the consequences of any such negligence on the part of an owner/occupier, and the failure to do so bars an invitee’s recovery against the owner/occupier. OCGA § 51-11-7, generally; Powell v. Woodridge Condo. Assn., 206 Ga. App. 176 (424 SE2d 855) (1992).

In the instant case, there was no evidence showing that either Grupe or Gaydos had actual knowledge of the alleged defect in the parking lot at the site where Gaydos fell. Gaydos contends that Grupe’s constructive knowledge of the alleged defect was established by the apartment complex maintenance supervisor’s inspection of the parking lot approximately one month before the incident, at which time the condition was discovered or should have been discovered. However, under the circumstances of this case, even if Grupe had such constructive knowledge, it was not superior to the knowledge attributable to Gaydos.

“It is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a ‘static’ defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved. [Cits.]” Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147) (1992). Broken or uneven pavement is a static condition which alone is not dangerous until someone steps on or in it. See Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28) (1986).

Gaydos contends that this rule regarding static defects is inapplicable here, because the defect was not visible to a pedestrian walking in an ordinary manner from the direction she approached the parking lot. However, it should be noted that she approached her car by taking a short-cut across the lawn, rather than using the concrete walkway from her apartment building to the parking lot and then walking to her car, as was the normal and intended route for tenants.

“[I]t is incumbent upon the plaintiff to use the degree of care necessary under the circumstances to avoid injury to [herself]. . . .” Griner v. Groover, 97 Ga. App. 753, 757 (104 SE2d 504) (1958). The reasonable selection of a route of travel is a part of the invitee’s duty to exercise ordinary care for her own safety. While an invitee need not necessarily choose the safest course across the owner/occupier’s property, Peacock v. Adams, 118 Ga. App. 728 (165 SE2d 664) (1968), where an invitee voluntarily departs from the route designated and maintained by the owner/occupier for the invitee’s safety and convenience, the degree of caution required by the invitee’s duty to exercise ordinary care for her own safety is heightened by any increased risk resulting from that choice. Under such conditions, the invitee assumes the risk of those hazards existent in the selected route where the conditions do not constitute a hazard when the traversed property is used for its intended purpose, unless the hazard is common to both areas or the owner has notice that the unauthorized route is being regularly used improperly.

Even if the alleged parking lot or curb defect in this case was not completely visible upon ordinary inspection from the direction Gaydos approached it, she was aware of that lack of visibility and should have exercised greater caution for her own safety. Gaydos’ failure to react to the diminished visibility of the parking lot beyond the curb, and conduct herself accordingly, itself constituted a failure to exercise ordinary care for her own safety. Consequently, she may not recover from Grupe for her injuries resulting from that static defect, and the trial court thus properly granted summary judgment for Grupe.

Decided February 2, 1994.

Parker & Terry, J. Steven Parker, for appellant.

Alston & Bird, Donna P. Bergeson, Elizabeth A. Gilley, A. McCampbell Gibson, for appellees.

Judgment affirmed.

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


text:
    A94A0253.
    WILSON v. DUNCAN et al.
    (440 SE2d 550)
   Blackburn, Judge.

We granted this interlocutory appeal to review the trial court’s denial of appellant’s motion for summary judgment.

Appellees Marybel Duncan (Duncan) and her husband brought the underlying action to recover damages for injuries Marybel Duncan sustained when she fell in a hair-styling business operated by appellant Debra Wilson (Wilson) d/b/a The Hair Station. Duncan entered The Hair Station through a rear entrance that was normally used for employees. Once inside The Hair Station, Duncan fell when descending a single step, which created a level change near the back of the shop. Duncan is unaware why or how she fell; she deposed that she did not stumble or trip over anything. Duncan deposed: “I think I fell when my foot went down to take the step, but I’m not exactly sure.” Duncan further deposed that there was nothing in the area where she fell except carpet and the step. Duncan’s grandson averred that the carpet changed color at the step; red carpet on the top of the step and white carpet on the lower level. Duncan’s granddaughter averred that Wilson placed two signs warning customers to watch their step at the rear entrance, prior to her grandmother’s fall.

It has long been the position of this court that “[t]he mere existence or maintenance of a difference in floor levels or of steps in a business building does not constitute negligence. Lane v. Maxwell Bros. & Asbill, 136 Ga. App. 712 (222 SE2d 184) (1975); Cash & Save Drugs v. Drew, 124 Ga. App. 721 (185 SE2d 786) (1971).” Cook v. Delite Beauty Supply, 165 Ga. App. 859, 860 (2) (303 SE2d 40) (1983), rev’d on other grounds sub nom. Charles Rossignol, Inc. v. Prophecy Corp., 177 Ga. App. 245, 247 (339 SE2d 288) (1985). See also Simone v. Hancock Textile Co., 175 Ga. App. 191, 192 (332 SE2d 669) (1985) and Lamberson v. Norris, 135 Ga. App. 647, 649 (218 SE2d 658) (1975).

Decided February 2, 1994.

Young, Clyatt, Turner, Thagard & Hoffman, William A. Turner, Jr., for appellant.

Del Percilla, Jr., Long & Denton, Allen D. Denton, for appellees.

In the present case, Duncan does not assert any facts upon which Wilson could be found negligent; Duncan does not contend that the area was improperly lit, that the step was obscured from view so that it could not be seen by one who looked at the floor, that the carpet was ripped or torn, or that she was distracted. See Lamberson, supra. Duncan has merely shown that she fell in the area of a single step in the back of Wilson’s shop. “Proof of nothing more than the occurrence of plaintiff’s fall is insufficient to establish defendant’s negligence. [Cit.]” Wilson v . Polk Medical Center, 200 Ga. App. 538, 539 (408 SE2d 834) (1991). Furthermore, evidence indicating that Wilson was aware that someone else had stumbled over the step is insufficient to prove negligence. “ ‘The fact that someone had previously fallen on the steps would not create a negligent condition where none had existed before.’ [Cit.]” Lamberson, 135 Ga. App. at 651. Therefore, the trial court should have granted Wilson’s motion for summary judgment.

Judgment reversed.

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

       Alvis Duncan, Marybel’s husband, sought damages for loss of consortium.


text:
    A94A0598.
    VEAL v. THE STATE.
    (440 SE2d 714)
   Blackburn, Judge.

On July 26, 1993, the appellant pled guilty to several offenses, but was allowed to reserve the right to appeal the trial court’s denial of his motions to suppress a photographic line-up and an inculpatory statement. Rather than proceeding immediately with an appeal, the appellant filed a motion for new trial, which the trial court denied on October 11, 1993. On November 3, 1993, within 30 days of the denial of his motion for new trial but not the guilty plea, he filed a notice of appeal.

“A motion for new trial is not the proper vehicle for contesting a guilty plea; rather it may be challenged for the first time on appeal. [Cits.]” Holt v. State, 205 Ga. App. 40, 41 (421 SE2d 131) (1992). Accordingly, the notice of appeal filed on November 3, 1993, was untimely as to the guilty plea entered on July 26, 1993, and this appeal must be dismissed. OCGA § 5-6-38 (a); Gibson v. State, 207 Ga. App. 491 (428 SE2d 421) (1993).

Decided February 2, 1994.

Antje R. Kingma, for appellant. (

J. Tom Morgan, District Attorney, Robert M. Coker, Sheila A. Connors, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Appeal dismissed.

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


author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A93A2416.
    DYAL v. THE STATE.
    (440 SE2d 716)
   McMurray, Presiding Judge.

Defendant was indicted during the April 1992 term of court in the Superior Court of Bacon County, Georgia, for theft by taking (Count 1) and criminal damage to property in the first degree (Count 2). During the same term of court, defendant filed a document entitled, “MOTIONS FILED ON BEHALF OF DEFENDANT.” The fifth paragraph of this motion is entitled, “DEMAND FOR SPEEDY TRIAL,” and provides as follows: “Comes now, the Defendant in the above styled case and makes demand upon the State for a speedy trial.”

Defendant was not tried during the term of court following his demand for trial, said term beginning on the second Monday of October 1992 and extending to the third Monday of April 1993. OCGA § 15-6-3 (41) (A). On the fourth Monday of April 1993 (April 26, 1993), defendant filed a motion for automatic discharge and acquittal pursuant to OCGA § 17-7-170 (b). The trial court denied this motion and defendant later entered guilty pleas to the offenses charged in the indictment, conditioned upon the right to appeal the denial of his motion for automatic discharge and acquittal. See Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824). The trial court approved defendant’s conditional guilty pleas and this direct appeal followed. Held:

The demand for trial contained in the fifth paragraph of defendant’s document entitled, “MOTIONS FILED ON BEHALF OF DEFENDANT,” is insufficient to invoke the speedy trial requirements of OCGA § 17-7-170 (b). See Cummins v. State, 202 Ga. App. 155 (413 SE2d 773); State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149). Consequently, the trial court did not err in denying defendant’s demand for discharge and acquittal.

Decided February 3, 1994.

Francisco B. Gonzalez, for appellant.

H. Donnie Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I concur with the judgment reached by the majority; however, I would affirm this case based on the trial court’s rationale, rather than that expressed in the majority.

In the present case, the defendant filed a two-page document entitled motions filed on behalf of defendant which clearly set forth his demand for speedy trial in bold and all capital letters. Thereafter, the trial court held a hearing on defendant’s motion for discharge and acquittal pursuant to his speedy trial request. The trial court determined that after defendant’s motion for speedy trial was filed on August 6, 1992, no criminal jury was impaneled during the remainder of the April 1992 term of court. The trial court also determined that one criminal jury was impaneled during the third week of the October 1992 term of court. The trial court held that as defendant’s motion for discharge and acquittal was filed during the court’s April 1993 term of court, it was premature pursuant to our analysis in Smith v. State, 199 Ga. App. 771 (406 SE2d 118) (1991). I agree and would affirm on that basis.