author: Pope, Judge.

text:
    75742.
    ALLSTATE INSURANCE COMPANY v. CLARK.
    (366 SE2d 394)
   Pope, Judge.

On November 19, 1986 plaintiff Lucious G. Clark brought this action against defendant Allstate Insurance Company seeking recovery of “long term disability benefits.” No answer to the complaint was filed, and on March 9, 1987 the trial court “sitting as trier of fact, after consideration of all the pleadings, the evidence, applicable law, argument of counsel, testimony of and for the plaintiff, and all other matters of record” entered judgment in favor of plaintiff in the amount of $215,327.42. On May 1 (within the same term of court) defendant filed a “Motion to Set Aside Judgment, Motion for New Trial and Extraordinary Motion for a New Trial.” On June 30 the trial court entered an order denying defendant’s various motions, and on July 27 the court granted defendant’s motion pursuant to OCGA § 5-6-39 to extend the time to file a notice of appeal through August 27. On August 24 defendant filed a motion for an evidentiary hearing and to vacate the June 30 order. By order entered August 26 the trial court denied the motion to vacate without an evidentiary hearing, and on August 27 defendant filed its notice of appeal from the June 30 and August 26 orders.

1. At the outset we are presented with plaintiff’s motion to dismiss this appeal. As correctly noted by plaintiff, the trial court’s rulings on defendant’s extraordinary motion for new trial and on its motion to set aside pursuant to OCGA § 9-11-60 (d) are matters which require a discretionary application in order to obtain appellate review. See OCGA § 5-6-35 (a) (7) and (8), respectively. Also, as to defendant’s motion for new trial, plaintiff correctly notes that it was not timely filed. OCGA § 5-5-40 (a). Accordingly, this court lacks jurisdiction to review these matters. Defendant concedes as much in its response to plaintiff’s motion; however, defendant contends that it now appeals only the denial of its “discretionary” (as opposed to statutory) motion to set aside and the trial court’s refusal to grant an evidentiary hearing on the matter. Defendant argues that these matters are directly appealable.

We are constrained to agree with defendant’s assertion. The denial of a “discretionary” motion to set aside a default judgment is an appealable final judgment. Shannon Co. v. Heneveld, 235 Ga. 635 (221 SE2d 200) (1975). But see Azar v. Westview Cemetery, 134 Ga. App. 682 (215 SE2d 719) (1975). As the motion sub judice is not provided for in the discretionary appeal provisions of OCGA § 5-6-35 (a), it is directly appealable to this court when timely made. OCGA § 5-6-34 (a) (1). See also OCGA § 5-6-30; Sunn v. Mercury Marine, 166 Ga. App. 567 (1) (305 SE2d 6) (1983). We therefore deny plaintiffs motion to dismiss and turn to the merits of this appeal.

2. “Courts of record retain full control over orders and judgments during the term at which they were made, and, in the exercise of a sound discretion, may revise or vacate them. Such discretion will not be controlled unless manifestly abused. [Cits.] During the term of court at which a judgment is rendered the court has power, on its own motion, to vacate the same for irregularity, or because it was improvidently or inadvertently entered. [Cit.] The superior [or state] court, as a general rule, has plenary power over its orders and judgments during the term at which they were rendered, and may amend, correct, or revoke them for the purpose of promoting justice. [Cit.] A motion to set aside and vacate a judgment cannot be determined by any fixed rule, but depends on the circumstances of the case, and exercise of the power to vacate a judgment rendered during the term will not be controlled on review unless abused. [Cit.] The plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments [including judgment by default] save those which are founded upon verdicts. [Cits.]” Whitlock v. Wilson, 79 Ga. App. 747 (54 SE2d 474) (1949); Martin v. Gen. Motors Corp., 226 Ga. 860 (1) (178 SE2d 183) (1970); Hunter v. Gillespie, 207 Ga. 574, 575 (63 SE2d 404) (1951); see Holcomb v. Trax, Inc., 138 Ga. App. 105 (225 SE2d 468) (1976).

Dealing first with defendant’s procedural assertions of error, we find defendant’s “discretionary” motion to set aside in this case to be equivalent to a motion for reconsideration. See Johnson v. Barnes, 237 Ga. 502 (1) (229 SE2d 70) (1976); Miller v. Bank of the South, 177 Ga. App. 42 (1) (338 SE2d 436) (1985). Such a motion can be ruled upon by the court ex mero motu, with or without notice to either party. Holcomb v. Trax, Inc., supra at 106. It follows that the trial court did not err in failing to hold an evidentiary hearing on defendant’s motion, although it was certainly within the court’s discretion to have done so. In any event, we find no harm in this regard as the record is replete with affidavits containing defendant’s evidentiary assertions. We likewise find no abuse of discretion in the trial court’s granting plaintiff’s motion for protective order and quashing the subpoena for the deposition of plaintiff’s counsel. Also, we find nothing in the record supporting defendant’s specious assertion that the trial court failed entirely to exercise its discretion in this matter.

3. Turning finally to substantive issues, defendant asserts in part the following factors as undisputed in support of its “discretionary” motion to set aside: plaintiff sued the wrong company, and he and his attorney had every reason to know that he had done so, and the judgment was obtained through the “clearly erroneous” testimony of plaintiff. However, the affidavits submitted by the parties and/or their counsel in support of their positions are in substantial conflict and contain vehement charges and countercharges of fraud, perjury and unethical conduct. Much of what defendant asserts transpired at the default hearing (see OCGA § 9-11-55 (a)) is mere speculation in light of the absence of a transcript or its equivalent. As to whether defendant was a proper party, “[a]s far as the law is concerned, by [its] failure to answer, [it] has had [its] day in court.” Robinson-Shamburger, Inc. v. Tenney, 135 Ga. App. 131, 134 (217 SE2d 184) (1975). Suffice it to say that upon our review of the record we find “[t]he trial court considered [all the evidence of record,] made a judgment concerning credibility, expressly recognized the discretionary nature of the decision to be made, and decided against [defendant’s] position. On the record before us, a contrary decision was not demanded and we see no abuse of discretion.” Carson v. Morris, 164 Ga. App. 732, 733 (297 SE2d 513) (1982); see Tanner v. Tinsley, 152 Ga. App. 330 (1) (262 SE2d 602) (1979). Defendant’s liability to plaintiff as alleged in the complaint is thus established.

As to the issue of damages, however, we have a different situation. Defendant argues that the default judgment includes several improper items, such as future disability payments and bad faith penalties, and also was not reduced to present value. Pretermitting these exact issues, we find the amount of recovery sought by plaintiff was unliquidated, and no copy of the policy was attached to the pleadings. By affidavit plaintiff’s counsel averred: “There was no documentary and/or physical evidence tendered or submitted into evidence at trial. No documentary or physical evidence was exhibited to the Court or even discussed with the trial court by plaintiff or plaintiff’s attorney. The only evidence at the trial was the sworn testimony of plaintiff . . . [and] [a]fter hearing the plaintiff’s testimony and asking the amount of damages, the Court instructed plaintiff’s counsel to prepare the judgment.”

“The amount of the recovery in an action on an insurance policy generally depends on the terms of the contract, and as a general rule consists of, and is limited by, the amount for which insurer is liable under the policy of insurance, taken in connection with the pleading [s] and other controlling circumstances of the particular case, plus interest, costs, and [penalties where appropriate. . . .]” 46 CJS 691, Ins., § 1390; see Hazlett & Hancock Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25 (2) (351 SE2d 218) (1986). In the total absence of any record evidence of the terms of the insurance policy in question, we are compelled to conclude that the trial court had no factual basis for the amount of damages awarded. Cf. Metropolitan Life Ins. Co. v. Lovett, 50 Ga. App. 763 (179 SE 253) (1935). Therefore, the award of damages in this case is reversed and the case remanded to the trial court in order for plaintiff to establish the amount of his damages with proper proof. See Archer v. Monroe, 165 Ga. App. 724 (3) (302 SE2d 583) (1983); Copelan v. O’Dwyer, 159 Ga. App. 750 (285 SE2d 216) (1981).

Decided February 24, 1988.

Douglas N. Campbell, Daniel J. Weber, Harold N. Hill, Jr., for appellant.

Nicholas C. Moraitakis, Eve A. Appelbaum, for appellee.

Judgment affirmed in part; reversed in part and case remanded with direction.

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

       “[Although a trial court’s discretionary power to act during the same term of court is derived from its inherent powers and not from the Civil Practice Act, the CPA continues to control the procedural aspects of the case.” Bank of Cumming v. Moseley, 243 Ga. 858, 859 (257 SE2d 278) (1979).


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    75749.
    WALKER v. THE STATE.
    (366 SE2d 400)
   Sognier, Judge.

Appellant was convicted of aggravated battery, and he appeals. We denied counsel’s request to withdraw as counsel, and appellant now enumerates as error the admission into evidence of State Exhibit 12, a can of Drano.

1. Appellant’s motion to treat the appeal as timely is granted, as the delay in filing was due to counsel’s hospitalization.

2. The evidence disclosed that Oscar Bowman, the victim, went to the apartment of his estranged wife and ordered appellant, who was living in a back bedroom, to get out. Appellant went to the store and got a can of Drano, and on his return to Mrs. Bowman’s apartment mixed the Drano with some honey. Appellant went in the living room where Bowman was sitting on the couch watching television and threw the mixture of Drano and honey in Bowman’s face. Bowman is blind as a result of the battery. Appellant made a voluntary written statement to the police, admitting the facts stated above.

Decided February 24, 1988.

Douglas J. Flanagan, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

An investigator went to the store where appellant had purchased the Drano, and the investigator bought a can of Drano which was the same price appellant said he had paid for the Drano he purchased, and was identical to the Drano can found at Mrs. Bowman’s apartment. The can of Drano purchased by the investigator was admitted into evidence, and appellant contends this was error. He argues that the exhibit was admitted to show that appellant knew the dangerous propensities of the substance, as shown by the description of the contents on the outside of the can. He also argues that the can of Drano introduced by the State was not related to the offense, was not found at the scene, and was not introduced to establish a fact in issue. These arguments are without merit, because it is not error to admit an item into evidence that is similar to an item used in commission of the offense. Sinkfield v. State, 231 Ga. 875, 876 (2) (204 SE2d 588) (1974); Gibson v. State, 160 Ga. App. 615, 619 (3) (287 SE2d 595) (1981). Accordingly, it was not error to admit Exhibit 12 into evidence.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Division 2 and in the judgment.


text:
    75785.
    WELLS v. THE STATE.
    (366 SE2d 397)
   Pope, Judge.

Defendant appeals from his conviction of the offense of aggravated assault. We affirm.

1. Defendant’s first enumeration of error challenges the verdict on the general grounds. The evidence construed most strongly in favor of supporting the verdict shows defendant came and sat down on the front porch of the victim’s apartment where the victim was sitting with two of his neighbors. Defendant asked for a cigarette and the victim gave him one. Defendant made some remarks, but the victim did not know if they were directed at him because defendant has a habit of talking about politics, revolution and otherwise talking to himself. As the victim rose from his seat to go inside the front door of the apartment, defendant, without warning, stabbed him with the broken-off blade of a steak knife he had concealed in the cuff of his sock. “Considering the evidence in the light most favorable to the verdict, a rational trier of fact reasonably could find defendant guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. . . .” Jackson v. State, 180 Ga. App. 363 (1) (349 SE2d 252) (1986).

2. Defendant argues the trial court erred in refusing to charge the jury on self-defense, which was defendant’s sole defense to the charges. Defendant testified he knew the victim sometimes carried a gun, but admitted he saw no gun on the victim at the time of this incident. Defendant claims he believed the victim was about to harm him because the victim rose and stood over him and said, “If you don’t shut up I’ll kill you.” Defendant did not testify that the victim made any threatening moves except to stand up over him. We agree with the trial judge that defendant’s testimony was legally insufficient to raise the issue of self-defense. “ ‘To establish his plea of self-defense, the defendant must show that the circumstances were such as to excite the fears of a reasonable man that his life was in danger; a mere unreasonable apprehension or suspicion of harm being insufficient.’ Weldon v. State, 84 Ga. App. 634 (3) (66 SE2d 920) [(1951)]. Clearly a charge on self-defense would not have been adjusted to this evidence.” Brown v. State, 139 Ga. App. 466, 467 (228 SE2d 602) (1976). See also Young v. State, 160 Ga. App. 51 (286 SE2d 54) (1981). Those cases cited by defendant as support for his argument that the trial court must charge the jury on defendant’s sole theory of defense are distinguishable because in those cases the defendant did introduce legally sufficient evidence in support of his asserted defense. See, e.g., Smith v. State, 109 Ga. 479 (3) (35 SE 59) (1900); Jackson v. State, 154 Ga. App. 867 (2) (270 SE2d 76) (1980); Mason v. State, 1 Ga. App. 534 (6) (58 SE 139) (1907).

3. Finally defendant argues the court erred in denying his motion for mistrial on the ground the court caused him to appear before the jury in handcuffs. The record shows the jury re-entered the courtroom during their deliberations to request additional instruction from the judge on the difference between simple assault and aggravated assault. After the jury again retired to the jury room, defendant’s attorney stated on the record that defendant had been handcuffed to his chair while the jury was being instructed the second time. The judge stated on the record that he did not believe the jurors could see the handcuffs and denied defendant’s motion for mistrial.

Although it is no longer addressed by statute, the right of a criminal defendant to make his appearance before the jury free from shackles or bonds is recognized as an important component of a fair and impartial trial. McKenzey v. State, 138 Ga. App. 88 (1b) (225 SE2d 512) (1976). Absent a showing of prejudice by the defendant, it is within the discretion of the trial judge to determine whether a mistrial should be granted where it is alleged by defendant that one or more jurors observed him in handcuffs. Darling v. State, 248 Ga. 485 (5) (284 SE2d 260) (1981); Moore v. State, 240 Ga. 210 (3) (240 SE2d 68) (1977). The trial court in this case expressly found no reason to believe the jury had been prejudiced. We find the court did not abuse its discretion in denying the motion for mistrial.

Decided February 24, 1988.

Christine A. Van Dross, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Joyce M. Averils, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Sognier, Judge. Beasley, Judge,

text:
    75626.
    BEACON ENGINEERING COMPANY, INC. v. REECE.
    (366 SE2d 694)
   Sognier, Judge.

Beacon Engineering Company, Inc., appeals from the judgment entered on the jury verdict in favor of Curtis Reece in his suit against the company on a promissory note.

Construing the evidence to support the jury verdict, see Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897 (1) (328 SE2d 564) (1985), the transcript reveals that on October 24, 1985, appellant, a corporation wholly owned by Susie Chivington, entered into a contract to purchase an airplane from appellee to be delivered on January 1, 1986. A promissory note, executed in appellee’s favor for $20,000, was signed by Susie Chivington, as appellant’s secretary-treasurer, and her husband, Robin Chivington, as appellant’s president. Robin Chivington died in December 1985 and Susie Chivington sought to cancel the contract, tendering payment in March 1986 for rental use of the airplane. The payment was returned to Ms. Chivington as unacceptable and when she retendered the amount, appellee turned the uncashed check over to his attorney with instructions to sue on the note. There was also evidence that in February of 1986, Dean Shields, a friend of Ms. Chivington’s, expressed an interest in working for appellant and twice allowed his airplane to be used for appellant’s business without charge.

1. We find no merit in appellant’s argument that the trial court erred by refusing to admit evidence that the purchase agreement between the parties contained an implied condition that the agreement would be executed only if Robin Chivington remained alive so that appellant’s planned expansion could be implemented. “ ‘The promissory note is an unconditional contract of the [defendant] to pay the plaintiff according to the tenor of the instrument. [Cit.] Because the note contains an unconditional promise, the contract is complete as it was written; parol evidence may not be used to inject conditions on the obligation which are not apparent from the face of the note. [Cit.]’ . . .” Brooks v. McCorkle, 174 Ga. App. 132, 133 (329 SE2d 214) (1985). In the absence of fraud, accident, or mistake, parol evidence relating to a condition not expressed in the note is incompetent to change the contract as represented on the face of the note. See Bentley v. Nat. Bank of Walton County, 175 Ga. App. 732, 733 (1) (334 SE2d 331) (1985). Testimony concerning such an implied condition was not admissible, id., and the trial court properly excluded it.

2. We find no error in the trial court’s denial of appellant’s motion for a directed verdict based on its defense of accord and satisfaction. “ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. [Cits.]’ [Cit.] ‘The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard. [Cit.]’ [Cit.]” C & W Land Dev. Corp. v. Kaminsky, 175 Ga. App. 774, 775 (1) (334 SE2d 362) (1985). Since there was ample evidence that appellee had not accepted the check from Susie Chivington in accord and satisfaction of appellant’s debt, a verdict in favor of appellant was not demanded.

3. The trial court did not err by admitting testimony elicited from Ms. Chivington on cross-examination that she had been good friends with Dean Shields for 20 years, that they were close friends, that Shields lives at her house and has lived there since March or April of 1986. “ ‘Questions of the relevancy of evidence are for the court. When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them.’. . . [Cit.]” Griffith v. Nance, 175 Ga. App. 59, 62 (7) (332 SE2d 358) (1985). We agree with the trial court that this evidence was relevant as to the reasons for appellant’s attempted rescission of the purchase agreement in issue.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully with Divisions 1 and 2 but cannot hold, as does Division 3, the challenged evidence relevant even under liberal rules of admissibility.

Decided February 10, 1988

Rehearing denied February 25, 1988

E. Wycliffe Orr, for appellant.

Brenda T. Weaver, Troy R. Millikan, for appellee.

Appellant’s third enumeration is that the court erred in denying its motion in limine and in denying its motion for mistrial after certain evidence was admitted. Defendant sought to exclude evidence of Ms. Chivington’s personal relationship with Mr. Shields. The first motion was denied, and during her cross-examination as an adverse witness at the conclusion of plaintiff’s case, plaintiff was allowed to establish that she and Mr. Shields had been good friends for twenty years, that he currently lived at her house and they were close friends, and that he had lived at her house off and on for about the last year.

A motion for mistrial was made on the ground that this was irrelevant and prejudicial, and after denying it the court instructed the jury that “any relationship with Mr. Shields, whatever it may be, if any, has nothing to do with the case other than if it has any bearing on whether or not there was a rescission of the contract or anything that might have to do with either the contract or rescission. ...”

The contract for the sale of the airplane was not the contract on which the suit was based. The sole question was whether or not the noteholder was entitled to payment of the promissory note by Beacon Engineering Company, Inc., the maker. The personal relationship of the maker’s owner/secretary-treasurer to a third party, introduced to show the company’s real motivation for refusing to pay the note, was totally irrelevant. If the company’s true motivation was that it had no use for the airplane for which the unconditional note was consideration, because it had free use of another airplane, it would make the company no more obligated to pay the note than it otherwise already was.

However, even only assuming for the sake of argument that the evidence was inadmissible, appellant is not entitled to reversal and a new trial. Defendant’s sole defense was the immaterial contention that the note was based on an implied condition, which we have held in Division 1 is not a legal defense. Thus the evidence, which anticipatorily was elicited to counter the position that the airplane purchase depended on the president’s continuing in life and the business’ expanding, was harmless. Had it been excluded, the jury would have been compelled to reach the same result.


text:
    75650.
    MOTES v. 6 ‘S’ COMPANY.
    (366 SE2d 358)
   Sognier, Judge.

Mattie J. Motes appeals from the trial court’s grant of summary judgment in favor of The 6 ‘S’ Company, d/b/a McDonalds, in this slip and fall action.

The record reveals that after consuming a sandwich at appellee’s Macon Mall restaurant, appellant walked over to visit an acquaintance in the upper dining area, which required ascending two steps: one onto an intermediary tread, the second onto the upper level itself. Appellant fell as she descended these steps. The evidence is undisputed that the steps were uncongested with customers, the lighting was ample, appellant’s vision was unimpeded and she was not distracted from observing her descent. Further, there was no evidence that any foreign object was present on the steps. The floor and steps were made of tile, the slippery nature of which appellant was aware at the time she traversed the steps. Appellant knew as she ascended and descended the steps that there was no handrail; nothing prevented her from observing that the edge of the steps consisted of rounded tile without grooves or non-slip safety treading. Appellant stated in her deposition that she fell when, after shifting all her weight onto her right foot positioned on the intermediary tread, her foot slipped on the rounded slippery edge of that step.

“ ‘Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go.’ [Cit.] In order for a plaintiff to recover, two elements must be proven: ‘(1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee. [Cit.] [Cit.] The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn [the invitee] and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of [this] knowledge, assumes the risks and dangers incident to the known condition.’ [Cits.]” Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987).

Appellant contends summary judgment should not have been granted to appellee on the basis of her equal knowledge of the condition of the steps because appellee was negligent per se in maintaining steps in violation of the Southern Building Code standards, which the City of Macon had adopted by ordinance. In particular, appellant points to the absence of a handrail and the lack of uniformity in riser height, both in violation of the building code standards. Even assuming, arguendo, that the building code standards applied to the steps in question and appellee’s violation thereof constituted negligence per se, we do not agree with appellant that this requires reversal of the trial court’s grant of summary judgment in favor of appellee.

“The expression ‘negligence per se,’ ... is sometimes used to denote those transactions in which an unquestionable wrong is so directed against a particular person that damages are bound to ensue to him, and is therefore practically synonymous with the expression ‘actionable per se’; but accurately employed, it has a more limited meaning. Negligence, it should be remembered, is in itself only one of the essential elements prerequisite to a cause of action in a given case. Every violation of any of those duties of omission or commission which, arising from man’s state as a social being, have received recognition by the law of the land, either generally or specifically, is an act of negligence. So long as these duties remained undefined only in abstract general terms, a breach is not properly denominated negligence per se; but when any specific act or dereliction is so universally wrongful as to attract the attention of the lawmaking power, and this concrete wrong is expressly prohibited by law or ordinance, a violation of this law, a commission of the specific act forbidden, is, for civil purposes, correctly called negligence per se. . . . Th[e] artificial distinction, between negligence per se and negligence not per se, respects, therefore, merely the method by which the existence of negligence is to be ascertained in particular instances. When once its existence is determined, whether through the court’s judicial cognizance or the jury’s finding as a matter of fact, there is no further distinction made; and the one form of negligence has, in the further consideration of the case, just the same effect as the other — no more, no less. Salt is just salt, whether dug from the mine in its natural state and called salt at once, or crystallized in some chemist’s laboratory and called NaCl; the savor is the same in both cases.” Platt v. Southern Photo &c. Co., 4 Ga. App. 159, 163-164 (2) (60 SE 1068) (1908).

Thus, even construing the evidence most strongly in behalf of appellant as the non-movant, Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986), and even assuming that appellee was negligent in not maintaining the steps at its facility in accord with the building codes, appellant is nevertheless not entitled to recover where it is clear that her knowledge of the alleged “defective condition” and potential danger evidenced by the slippery tiled step was equal to that of appellee. This is particularly true since appellant had only minutes before traversed the same route of which she now complains. See Garnett v. Mathison, 179 Ga. App. 242, 243 (345 SE2d 919) (1986). We note that in Garnett we affirmed the trial court’s grant of summary judgment to the defendant therein on both common law negligence and negligence per se, as alleged in the plaintiff’s complaint. We do not read Garnett as intimating that questions of fact regarding a theory of recovery based on the defendant’s alleged negligence per se in and of itself would defeat a motion for summary judgment made by the defendant based upon uncontroverted evidence that the plaintiff’s knowledge of the defective or dangerous condition equalled or exceeded the proprietor’s knowledge.

Decided February 9, 1988

Rehearing denied February 25, 1988

Russell M. Boston, for appellant.

C. Ashley Royal, Jerry A. Lumley, Craig N. Cowart, for appellee.

Appellee having carried its burden of negating at least one of the essential elements of appellant’s case, the trial court properly granted summary judgment in favor of appellee. Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, 815 (354 SE2d 13) (1987).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in the judgment only.


author: Benham, Judge.

text:
    75258.
    FOSKEY et al. v. CARTER et al.
    (366 SE2d 401)
   Benham, Judge.

Appellees, partners in a trucking business, procured a policy of insurance through Foskey’s agency. Shortly thereafter, a leased trailer was damaged and appellees sought to recover under the policy. The insurer denied that there was coverage for damages to a trailer not owned by the insured, and refused to pay. Appellees subsequently suffered a judgment against them in favor of the owner of the trailer. They then brought suit against the insurer, the Georgia Insurers Insolvency Pool, and Foskey. In the first count of the complaint, appellees sought to hold the insurer and the insolvency pool liáble in contract. The second count named the insurer and Foskey, alleging that Foskey was an agent of the insurer, and that if there was no coverage under the policy, it was because of the negligence of Foskey in failing to procure the insurance coverage requested. The third count alleged that the insolvency pool was liable for its negligence in failing to adjust the claim properly. The suit was brought in Laurens County, appellees’ county of residence, under OCGA § 33-4-1 (4), which provides that a claim against an insurer may be brought in the county where the personal property covered by the policy is located, or where the persons entitled to the proceeds reside. Foskey filed a motion to dismiss the complaint as to him and a motion to strike the second count. The basis of both motions is that venue as to Foskey is improper in Laurens County with regard to the tort claim. In support of his motions, Foskey attached an affidavit from an officer of the insurer stating, among other things, that Foskey was not an agent of the insurer. This appeal is from the trial court’s denial of Foskey’s motions.

Decided February 25, 1988.

Joe W. Rowland, for appellants.

Massie H. McIntyre, for appellees.

A trial judge is empowered to decide factual issues in the course of ruling on a motion questioning venue. Daughtry v. Chaney-Bush Irrigation, 166 Ga. App. 708 (1) (305 SE2d 439) (1983). The evidence available to the trial court in this case consisted of an affidavit stating that Foskey was not an agent of the insurer. “Since an ‘assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties,’ such a statement may not be disregarded by the trial court. [Cit.]” Nat. Property &c. Ins. Co. v. Wells, 166 Ga. App. 281 (2) (304 SE2d 458) (1983). There being no evidence to counter that statement of fact in this case, it is established that Foskey was not an agent of the insurer. It is clear from the complaint that the asserted liability of the insurer for negligence was vicarious and was based on the existence of an agency relationship with Foskey. Since the nonexistence of that relationship has been established by the evidence, it follows that Foskey and the insurer are not jointly liable for the alleged negligence: if either one is, it is Foskey. Since venue as to Foskey was based on the assertion that he was a joint tortfeasor with the insurer, and there are no independent grounds asserted for establishing venue as to Foskey in Laurens County, the trial court erred in failing to rule in Foskey’s favor as to the venue issue.

The remedy Foskey sought, dismissal of the claim against him, was not, however, the appropriate remedy. Instead, the trial court should have transferred the claim against Foskey to the county of Foskey’s residence. McCormick v. Rissanen, 177 Ga. App. 623 (340 SE2d 268) (1986); Hubbert v. Williams, 175 Ga. App. 393 (3) (333 SE2d 425) (1985). Accordingly, the judgment of the trial court is reversed and this case remanded with direction to take action consistent with this opinion.

Judgment reversed and case remanded with direction.

Banke, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    75305.
    LAYNE v. FOOD GIANT, INC.
    (366 SE2d 402)
   McMurray, Presiding Judge.

Plaintiff Layne brought an action against Food Giant, Inc. seeking damages she allegedly sustained after slipping and falling in defendant’s grocery store. Defendant filed a motion for summary judgment and, in support thereof, relied on plaintiff’s deposition, wherein the following evidence was shown: At about 7:00 to 7:20 p.m. on July 23, 1985, plaintiff went to defendant’s grocery store to shop. The weather was “overcast”; it had been raining and it was raining at the time plaintiff went into defendant’s store. Before plaintiff entered the store, she noticed one of defendant’s employees bringing grocery carts in from the rain. Plaintiff parked her automobile a short distance from defendant’s store and walked “at a regular pace” from her automobile to the store. As plaintiff walked through the front door of the store, she passed one of defendant’s store employees “and he was going out and getting some more [shopping carts].” The door to the store was open in order for defendant’s store employee to bring the shopping carts in from the rain. As plaintiff walked inside the store, she noticed that there was no “mat” on the floor at the entrance. Plaintiff then walked “several feet” inside the store and slipped and fell.

Before her fall, plaintiff did not notice water on the floor; however, after her fall, she noticed water on the floor because her “clothes were wet.” From this evidence, the trial court granted defendant’s motion for summary judgment and this appeal followed. Held:

“ ‘(I)n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.’ Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).” Cook v. Arrington, 183 Ga. App. 384, 385 (358 SE2d 869).

“ ‘It is common knowledge that when people enter any building in rainy conditions, moisture is tracked in and the inside of the door is likely to be wet; it is a matter of common knowledge that some water will normally be present where shoppers pass during rainy weather. (Cit.) It is not the duty of persons in control of such buildings to keep a large force of moppers to remove the rain as fast as it collects. (Cit.) The duty owed to such invitees is one of ordinary care, or to protect against an unreasonable risk of harm. (Cit.) The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect to anticipate. (Cits.)’ Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (332 SE2d 304) (1985).” Cook v. Arrington, 183 Ga. App. 384, 385, 386, supra. Under the facts and circumstances of the case sub judice, assuming the inference that plaintiff slipped on rainwater at the entrance of defendant’s store, there is no evidence to show superior knowledge on the part of the defendant of a hazard which could give rise to a duty to remove or warn customers, so that failure to do so could be found to constitute a failure to exercise ordinary care in keeping the premises safe. Consequently, the trial court did not err in granting summary judgment in favor of defendant. Compare Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79 (363 SE2d 291); and Carder v. K-Mart, 185 Ga. App. 143 (363 SE2d 593), where there was some evidence showing the proprietor’s actual or constructive superior knowledge.

Decided February 25, 1988.

James L. Kraemer, for appellant.

Eve Appelbaum, Mary M. House, for appellee.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Carley, Judge.

text:
    75374.
    LOAIZA v. THE STATE.
    (366 SE2d 404)
   Carley, Judge.

Appellant was arrested and indicted for trafficking in cocaine. He was tried before a jury and a verdict of guilty was returned. Appellant appeals from the judgment of conviction and sentence entered on the verdict.

1. Appellant filed a motion to suppress. The trial court refused to allow appellant to incorporate into the record of the hearing on his motion the transcripts of hearings on other motions to suppress which involved the same arresting officer as in this case. The trial court also refused to allow appellant to introduce evidence as to other traffic stops which had been made by the arresting officer and which were similar to the stop that the officer had made of appellant. The trial court’s rulings limiting the evidentiary scope of the hearing on appellant’s motion to suppress and ultimately denying the motion on the merits are enumerated as error.

As the search at issue in this case was made pursuant to the written consent of appellant, the question for determination at the hearing on the motion to suppress was whether appellant’s “ ‘consent was, in fact, freely and voluntarily given.’ [Cit.]” (Emphasis in original.) Clare v. State, 135 Ga. App. 281, 284 (3) (217 SE2d 638) (1975). The type of evidence which the trial court refused to allow appellant to present at the hearing was not probative of this dispositive issue. The trial court correctly held that the excluded evidence was irrelevant to whether appellant’s consent was freely and voluntarily given.

Based upon the relevant evidence that was produced at the hearing, the trial court’s denial of appellant’s motion to suppress was not error. “There was probable cause for the trooper to stop [appellant] for speeding through both the trooper’s testimony [that appellant was traveling at 68 mph in a 55 mph zone] and appellant’s admission that he [was speeding]. While there might not have been probable cause for the search, there was evidence of a valid consent to search; appellant signed the consent form, gave no indication that he did not understand the form; he was not given any inducement or threats to sign it, and he admitted that... he had no objection to the search. A valid consent to search eliminates an officer’s need for probable cause. [Cit.]” Steward v. State, 182 Ga. App. 659, 660 (1) (356 SE2d 890) (1987).

2. Asserting prosecutorial misconduct, appellant made several motions for mistrial. The trial court’s denial of these motions is enumerated as error.

The first motion for mistrial was made during voir dire. “ ‘The time for making a motion for mistrial is not ripe until the case has begun, and the trial does not begin until the jury has been impaneled and sworn. ... A motion for a postponement of the case until new jurors who had not heard the question asked were selected would have been the proper motion here. [Cit.] Since the motion for mistrial was made before the jury was impaneled and sworn, the trial court did not err in overruling it.’ [Cit.]” Mize v. State, 173 Ga. App. 368, 368-369 (3) (326 SE2d 785) (1985). See also Smalls v. State, 174 Ga. App. 698 (1) (331 SE2d 40) (1985).

Another motion for mistrial was made during the evidentiary portion of the trial. However, in that instance, appellant did not renew his motion for mistrial after the trial court had given curative instructions to the jury. “Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit. [Cit.]” Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158) (1977). See also Baine v. State, 181 Ga. App. 856, 858-859 (4) (354 SE2d 177) (1987).

The last motion was in connection with the State’s closing argument. The counsel for the State, purporting to quote Edmund Burke, stated that “all that is necessary for evil to survive is that good men do nothing.” Upon appellant’s objection, the trial court instructed the jury to disregard this comment as improper argument. “Closing argumerits by the district attorney which appeal to the safety of the community and general prevention of crime are proper. [Cit.] The trial judge’s ruling in denying a mistrial will not be disturbed on appeal unless it appears that he manifestly abused his discretion. [Cit.]” Burke v. State, 153 Ga. App. 769, 771 (8) (266 SE2d 549) (1980). See also Callahan v. State, 179 Ga. App. 556, 564 (5) (347 SE2d 269) (1986). Error, if any, as to this incident was in the trial court’s determination that the argument of the counsel for the State was improper, rather than in its failure to grant a mistrial.

Decided February 25, 1988.

Joseph P. Quirk, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

3. Appellant enumerates the general grounds. Specifically, he urges that the State failed to prove that he was in knowing possession of the cocaine that was found in the car he was driving, which is an essential element of the violation of OCGA § 16-13-31 (a).

In the prosecution of offenses wherein knowing possession constitutes an element of the crime, “[knowledge, of course, may be shown by circumstances which should excite suspicion in the mind of an ordinarily prudent man. [Cits.]” Williamson v. State, 134 Ga. App. 329, 332 (214 SE2d 415) (1975). The evidence as to the existing circumstances in this case, including appellant’s own description of how he came into possession of the automobile which contained the 29.9 kilograms of cocaine, was sufficient under the rule enunciated in Williamson to authorize the jury to find that appellant had knowingly possessed the cocaine. Construing the evidence produced at trial most strongly in favor of the guilty verdict, we find that a rational trior of fact could reasonably have found appellant guilty of trafficking in cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75651.
    SIMS v. THE STATE.
    (366 SE2d 406)
   Carley, Judge.

Following appellant’s plea of mental incompetency to stand trial, a special jury was empanelled and it found that he was competent. Appellant and a co-indictee were then brought to trial before a jury on two counts of armed robbery. Appellant appeals from the trial court’s judgments of conviction and sentences entered on the guilty verdicts returned by the jury.

1. The trial court’s failure to charge the competency jury, without request, on the consequences of finding appellant competent or incompetent to stand trial is enumerated as error.

OCGA § 17-7-130 is the controlling statutory provision as to the issue of the competency of a criminal defendant to stand trial. OCGA § 17-7-130 contains no statutory mandate that the trial court charge the competency jury on the consequences of its possible verdicts. Compare OCGA § 17-7-131, regarding the plea of insanity or mental incompetency as a defense to criminal responsibility. In the absence of any such statutory requirement, we find no error in the trial court’s failure to give such a charge. This would be especially true where, as here, there was neither a request for such a charge nor an objection to the failure to give such a charge.

2. Appellant enumerates as error the trial court’s failure to instruct the competency jury as to the opinion testimony of lay witnesses. Appellant requested no such charge. He urges, however, that, even without request, the trial court should have balanced its charge on expert witnesses with a charge on lay opinion testimony.

The charge that was given by the trial court as to expert witnesses did not overly emphasize the probity of their testimony or imply that the opinions of lay witnesses were not to be considered. Inasmuch as the instruction that was given by the trial court could not have misled or confused the competency jury, and there being no timely written request for a separate charge on lay opinion testimony, we find no error. See generally Sears v. Smith, 221 Ga. 47, 49 (9) (142 SE2d 792) (1965).

3. Appellant enumerates the general grounds. As to each robbery, the State produced substantial evidence of appellant’s guilt. After a review of the entire record, we find that a rational trior of fact could reasonably have found appellant guilty, beyond a reasonable doubt, of committing the two armed robberies with which he was charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Appellant enumerates as error the denial of his motion to sever his trial from that of a co-defendant.

“[OCGA § 17-8-4] provides that ‘[w]hen two or more defendants are jointly indicted ... for a felony less than capital. . . defendants may be tried jointly or separately in the discretion of the trial court . . .’ [Cits.] Our Supreme Court, . . . [has] found that the trial judge must exercise his discretion in each particular case, ‘[b]ut the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. [Cit.] He must make a clear showing of prejudice and a consequent denial of due process.’ [Cit.] They set forth a three-part standard: (1) ‘Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? (2) Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? (3) Are the defenses of the defendants antagonistic to each other or to each other’s rights?’ [Cit.] We answer each question in the negative . . . [W]e find no error.” Stevens v. State, 165 Ga. App. 814, 816-817 (3) (302 SE2d 724) (1983). See also Stephens v. State, 170 Ga. App. 267 (1) (316 SE2d 847) (1984).

Decided February 25, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Elisabeth G. MacNamara, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    75741.
    ADANA MORTGAGE BANKERS, INC. v. BANKERS INSURANCE SERVICE CORPORATION et al.
    (366 SE2d 408)
   Carley, Judge.

Appellant-plaintiff filed a complaint alleging that his contract of group insurance had been breached by appellee-defendants. Appellees answered and subsequently moved for summary judgment, based upon appellant’s asserted failure to initiate his suit within the contractual limitation period purportedly contained in the policy. Appellant appeals from the trial court’s grant of summary judgment to appellees.

In support of their motion for summary judgment, appellees relied only upon the language of the “Certificate of Insurance” that had been issued to appellant. Under its own terms, this certificate was “issued solely for the information of the named Assured and follows the terms and conditions of the coverage provided such Assured under [the Policy]. The rights and obligations of the parties are governed by the terms and conditions of said Policy. . . .” (Emphasis supplied.) Appellees never introduced a copy of the policy itself and the policy is not otherwise of record. “The law is very clear that ‘(a) contract of group insurance is made up of the master group policy and the certificate, which must be construed together. . . .’ [Cits.]” (Emphasis supplied.) Morrison Assur. Co., Inc. v. Armstrong, 152 Ga. App. 885, 886-887 (264 SE2d 320) (1980). See also Investor’s Nat. Life Ins. Co. v. Norsworthy, 160 Ga. App. 340 (287 SE2d 66) (1981). Thus, appellees, as movants for summary judgment, relied upon the written provision of a contract of insurance but produced evidence of only a part of that contract. It follows that the trial court erred in granting appellees’ motion for summary judgment. Construing the evidence most strongly against appellee, there remained a genuine issue of material fact as to the controlling provisions of the contract. See OCGA § 9-11-56 (c). There is no evidence that the policy contained a limitation provision for bringing suit against appellees or, if it did what its terms were. The very portion of the contract that was offered into evidence explicitly provides that it does not govern the rights and obligations of the parties, but that those rights and obligations are governed by the terms and conditions of the policy which does not appear of record.

Decided February 25, 1988.

George R. Dean, for appellant.

William H. Hughes, Jr., for appellees.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


author: Deen, Presiding Judge.

text:
    76223.
    JOHNSON v. THE STATE.
    (366 SE2d 409)
   Deen, Presiding Judge.

Matthew Johnson brings this appeal from his conviction of child molestation. Here appellant was step-uncle of the victim. Compare the case involving “ ‘if the father didn’t break the daughter in the stepfather should.’ ” Grant v. State, 178 Ga. App. 398, 399 (343 SE2d 422) (1986). Among many other acts of mental and physical abuse, she was forced to “take his penis in her mouth.” She “felt something wet and sticky.” She described the substance “between her legs as white.” It is contended here that the trial court erred in permitting the state’s expert witness, a pediatrician, to testify as to her opinion regarding whether or not the victim had been molested. Held:

The evidence showed that Dr. Ann Fleming testified that when she was asked to make a medical examination of a child to determine whether or not the child has been molested, she usually talks to the child alone and also talks to whoever accompanies the child to the examination. In the instant case, the doctor testified that she knew that the child had already been questioned by several people and was seeing a counselor, so she talked with the child’s mother outside her presence. As a result, the history she obtained from the child was briefer than usual because she felt the child’s story was well documented. Dr. Fleming testified as to her physical findings and was then asked if she had an opinion as to whether or not the child had been sexually abused. She responded, “Yes.” Upon objection, the district attorney re-phrased the question and asked, “Based on your medical exam, do you have any opinion as to whether or not there has been any activity in the area between her legs?” The doctor replied, “Yes.” Q. “What is that opinion?” A. “I suspect she was probably molested.” Defense counsel’s objection was overruled.

Decided February 25, 1988.

Roger L. Curry, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

In State v. Butler, 256 Ga. 448, 450 (349 SE2d 684) (1986), this same witness was held to be competent as an expert, “a pediatrician with expertise in child molestation . . . [whose] opinion was one of fact, and was not inadmissible as a legal conclusion . . . [T]he fact that her testimony indirectly, though necessarily, involved the child’s credibility does not render it inadmissible.” In the instant case, the doctor was aware that the child had reported being sexually abused and was testifying that her findings were not inconsistent with the child’s report of being molested by her uncle. Allison v. State, 256 Ga. 851, 853 (353 SE2d 805) (1987), relied upon by appellant, is not controlling on this issue. In that case the Supreme Court, while fully cognizant of its holding in the Butler case, held that a clinical psychologist who administered a battery of psychological tests to the child victim could not testify that, in his professional opinion, the child had been sexually abused because the jury had “the benefit of extensive testimony as to the lineaments of the child abuse syndrome, as well as testimony that this child exhibited several symptoms that are consistent with the syndrome [they were] fully capable of deciding — upon their own — whether the child in fact was abused, and, if so, whether [the defendant] did it.” In the instant case, the pediatrician testified that her medical findings based upon a pelvic exam were unusual; the child’s hymen was unusually elastic for a ten-year-old, and she was able to voluntarily relax her vaginal muscles when requested to do so. This latter finding is highly unusual in a child of ten, and both findings formed the basis for Dr. Fleming’s opinion that the child had probably been molested and possibly penetrated. There was no other testimony which would have enabled the jury to reach this conclusion on its own.

Judgment affirmed.

Carley and Sognier, JJ., concur in the judgment only.


author: Beasley, Judge.

text:
    75104.
    COOPER et al. v. RE/MAX NORTH ATLANTA, INC.
    (366 SE2d 328)
   Beasley, Judge.

The pertinent facts are not in dispute in this conflict surrounding nonpayment of a real estate commission.

Cooper is an engineer and licensed real estate broker involved in design, construction, and real estate development. He was president, sole director, and shareholder of at least ninety percent of the stock of Sentry Engineering & Construction Company, Inc., when Cooper and Sentry purchased two adjoining tracts of property from Mercer University in October 1981. Sentry developed a portion of the property into Regent Centre Office Park (Regent Centre) in 1982 and completed Phases I and II. Late in 1982, plans were submitted to the DeKalb County Development Department for a project called Regent Centre Office Park, Phase III. The building was to take place on a site adjoining Phase I but on property known as 3020 Mercer University Drive and owned by Cooper.

On December 20 Sentry, represented by Cooper, agreed with Specialty Appliance Works, Inc. for the latter to lease space at Regent Centre, known as 3070 Mercer University Drive, for a term of thirty-six months commencing on February 1, 1983. Special stipulations in the lease provided: if the tenant was then not in default of the lease, the landlord agreed to furnish the tenant with a larger space at any time after the midpoint of the lease term upon ninety days written notification of the tenant’s need to expand; the term of the lease would be increased to thirty-six months from the time the tenant moved into the larger space; the tenant would have the option to purchase the premises for a period not to exceed three years from January 31, 1983, at terms of payment; if the tenant purchased the leased premises, or any part thereof, or any other space in Regent Centre, during the initial or extended term of the lease, then the landlord agreed to pay, upon the closing of the sale, a real estate commission equal to eight percent (8%) of the total sales price less eight percent (8%) of the total unpaid rent that would have been due under the terms of the lease had a sale not occurred. The landlord was to pay 50 percent of all commissions to McGinnis Realty, Inc. and the remainder of all commissions to Re/Max North Atlanta, Inc.

Cooper formed a new corporation in 1983, Regent Centre Development Company, Inc. (RCDC), of which he was president, sole director, and sole shareholder. In July Cooper, as seller, agreed with Specialty and Moneytree Investors Corporation, as purchasers, for the sale and purchase of the land at 3020 Mercer University Drive at a price of $585,000. The contract provided that prior to closing the seller would construct on the property a two-story, 6,000-foot office building commensurate with the construction at the adjoining Regent Centre Office Park and further depicted by plans attached.

On November 29, Cooper procured in his own name a construction loan on the property. The next day he transferred and assigned to RCDC all of his rights, title, and interest under the sales contract with Moneytree and Specialty and granted a warranty deed on the property to RCDC subject to the construction loan. On June 12, 1984, after construction of the office building, Cooper quit-claimed the property to Specialty and Moneytree. No real estate commission was paid on the sale. On November 21, Moneytree granted its interest in the property to Specialty.

Re/Max North Atlanta, Inc. filed suit against Cooper individually, RCDC, Sentry, and Specialty. Count one alleged that Sentry was indebted to plaintiff for the real estate commission in the amount of $23,400 plus interest from June 12, 1984, the date of sale of the property, and was also liable for $8,000 as attorney fees and expenses of litigation for bad faith, stubborn litigiousness, and unnecessary trouble and expense. Count two alleged that defendants individually and through Cooper intentionally and falsely represented that plaintiff would be paid the real estate commission; that plaintiff relied on Cooper’s representations and submitted a tenant resulting in the lease; that Cooper, aided and abetted by the corporate defendants and with the intent to defraud Re/Max and avoid payment of the commission, arranged for the sale of the new building to Specialty through a new and different entity, RCDC; that Cooper at all times material was the principal owner and controlled and acted as president of Sentry and RCDC and that he individually and through the corporations owned, developed and controlled the real estate leased to Specialty and the real estate then sold to it, all of such real estate being known generally as Regent Centre; and that the transfer and sale of the property by Cooper and RCDC to Specialty was arranged intentionally for the express purpose of defrauding Re/Max and avoiding payment of its commission. In this count, Re/Max asked for the amount of commission claimed in count one and $100,000 as punitive damages from the defendants jointly and severally, a reasonable sum as expenses of litigation and attorney fees, and all court costs. Re/Max later voluntarily dismissed without prejudice its complaint against Specialty.

The jury returned a verdict for Re/Max on count two in the principal amount of $10,246.50, plus expenses of litigation including $3,750 attorney fees, and $5,000 punitive damages. The trial court entered judgment thereon against Cooper, RCDC, and Sentry, and they appeal.

1. Appellants urge that the trial court erred in failing to direct a verdict in their favor because a) plaintiff failed to prove fraud as a matter of law, b) the verdict is not supported in law or fact as the record does not contain evidence that the property sale was in violation of the lease, and c) plaintiff failed to prove the occurrence of a condition precedent.

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions and inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a); [Cit.]” Beard v. Fender, 179 Ga. App. 465 (346 SE2d 901) (1986). “The standard of appellate review of a trial court’s denial of a motion for a directed verdict is the ‘any evidence test.’ [Cit.]” Little v. Little, 173 Ga. App. 116 (325 SE2d 624) (1984). The question thus presented us is whether or not there was any evidence of fraud, violation of the subject lease, and occurrence of the alleged condition precedent.

a) Fraud. Appellants contend that Re/Max failed to prove that any of them made any false representations to it so that Re/Max could not have relied on any false representation; that Re/Max failed to prove that any representations which may have been made were made with knowledge of their falsity or with an intent to deceive Re/ Max, and that since the alleged misrepresentation by Sentry related to a future act it was not legally sufficient to support a claim for fraud. They contend further that with respect to Cooper and RCDC the element of false representation was not established, because the only misrepresentation Re/Max alleges was that contained in the lease agreement between Sentry and Specialty to the effect that Sentry would pay Re/Max and the other realtor a commission if Specialty purchased property within Regent Centre, and since neither Cooper nor RCDC were parties to the lease they could not be held responsible for any promises in it.

At trial Re/Max claimed that Cooper individually and Sentry acting through Cooper never had any intention of paying a sales commission, even at the time the representation of the possibility of a commission was made to Re/Max, and that in order to avoid paying a commission, Cooper formed RCDC and transferred any interest in the sales contract on the subject property and title to the property to RCDC. Re/Max elicited testimony from Cooper about the structure of his companies and the financial machinations surrounding the eventual sale of the property. From this, the jury could have accepted Re/ Max’ theory and reasonably inferred from Cooper’s descriptions of the corporáte entities and the transactions surrounding the development and sale of the land that there was never an intention on Cooper’s part to pay the commission.

Actionable fraud can arise in the case of “promises as to future events made with the present intention not to perform, [cits.] or where ‘the defendant knows the future event will not take place.’ [Cit.]” Georgia Real Estate Comm. v. James, 152 Ga. App. 193, 195 (262 SE2d 531) (1979). Cooper’s credibility was a significant factor in assessing whether or not the business transactions were part and parcel of the alleged fraud, and his credibility was a matter for the jury’s determination. OCGA § 24-9-80. “The trior of fact in determining the worthiness of belief of a witness may take into consideration his appearance or his demeanor or his manner upon the stand. [Cit.]” Mustang Transp. v. W. W. Lowe & Sons, 123 Ga. App. 350, 352 (3) (181 SE2d 85) (1971). “Although fraud may not be presumed, ‘slight circumstances may be sufficient to carry conviction of its existence.’ [Cits.]” Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (1) (290 SE2d 497) (1982).

Could Cooper individually and RCDC be held accountable for fraud along with Sentry, even though Cooper signed the lease in his capacity as an officer of Sentry and RCDC was not a party to the lease or even in existence at the time of execution of the lease? They could, if the jury was authorized to find that the corporate veils were pierced because the corporations were the alter ego of Cooper. “ ‘The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party “has over extended his privilege in the use of a corporate entity in order to defeat justice, perpetuate fraud or to evade contractual or tort responsibility.” [Cits.]’ ” Jenkins v. Judith Sans Intl., 175 Ga. App. 171 (1) (332 SE2d 687) (1985). “The question of whether the corporate entity should be disregarded depends upon the particular circumstances of each case. [Cit.]” Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671, 673 (3) (320 SE2d 555) (1984).

There was evidence upon which a jury could find that Cooper and his corporations used “assets and authority interchangeably,” were “the same and fully exchangeable,” Harrell v. Bank of the South, 174 Ga. App. 384 (330 SE2d 147) (1985). In fact that interchange or exchange was part of Re/Max’s argument regarding Cooper’s shifting of assets, the property, through a new corporation so as to avoid contractual obligations of another of his corporations. The court charged the jury regarding Re/Max’s contentions that the two corporations were alter egos or business conduits and appropriately charged the legal theory whereby the jury could disregard the separate legal personalities of Cooper and his corporations. Once the jury found fraud, it was authorized under the evidence to hold all three defendants liable.

b) Property sale as a violation of the lease. Appellants assert that the sale of the property did not trigger the payment of the real estate commission under the lease because i) the property was not within Regent Centre and ii) the property was not sold or even owned by Sentry, the only party bound by the lease, so that conditions precedent to Sentry’s obligation were not satisfied.

Decided February 4, 1988

Rehearing denied February 26, 1988

Richard C. Freeman III, for appellants.

i) Whether or not the property was a part of Regent Centre was a fact for the jury to determine, and the evidence supported its finding. The property was adjacent to Phase I of Regent Centre. Numerous documents submitted to the DeKalb County Planning Department referred to the property as Phase III of Regent Centre Office Park. The building plans submitted to the county for building authorization were titled “Regent Centre Office Park, Phase III,” named Sentry as developer, owner and contractor, and were signed and sealed by Cooper individually as an engineer. The same architect who designed Regent Centre designed the building, the same materials were used on the exterior of the building, and from the street the building appeared the same as the others in Regent Centre.

ii) The fact that Sentry was the party on the lease would not prevent the sale by RCDC from triggering the commission under the lease because, as we have ruled in Division 1 (a), the jury was authorized to find that the two corporate entities along with Cooper were interchangeable for the purposes of the transactions at issue.

c) Condition precedent. Appellants argue that Re/Max failed to prove the occurrence of a condition precedent to recovery in that the name of the tenant typed on the lease was “Specialty Appliances, Inc.” rather than the correct “Specialty Appliance Works, Inc.,” and that there was no evidence to explain the difference or to indicate that these two corporations were the same.

This was not at issue at trial. There was no testimony or evidence to the effect that two different corporate entities were involved, nor is such contention made by appellants now. Cooper himself testified that on behalf of Sentry he signed the lease with Specialty Appliance Works. Other testimony corroborated the fact that Specialty Appliance Works, Inc., was unquestionably the tenant under the lease with Sentry. Appellants’ assertion is without merit.

2. Appellants also contend that the trial court’s instructions on maliciousness and punitive damages were not supported by the record.

Defendants did not except in any manner to the court’s charge and cannot complain. Little v. Little, 173 Ga. App. 116 (2) (325 SE2d 624) (1984). In any event, evidence of fraud allows for the imposition of such damages. Associated Software &c. Organization v. Wysocki, 177 Ga. App. 135, 138 (2) (338 SE2d 679) (1985).

Judgment affirmed.

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

Joe H. Bynum, Jr., for appellee.


author: Birdsong, Chief Judge.

text:
    75118.
    ANDERSON v. MATICH et al.
    (366 SE2d 300)
   Birdsong, Chief Judge.

Gail Anderson, purchaser of a house, sued the sellers Victor Matich and Rosalie Matich (now DeFlorio), the real estate agents (Harry Norman Realtors) and the inspection service hired by purchaser (Home Buyers Inspection Service, Inc., and Joe Morris), for knowingly representing the house had been re-roofed when it had not, and for so negligently inspecting the house as to inflict a fraud. Anderson bought the house and contends as a result of the fraud she was damaged.

Matich and DeFlorio represented themselves pro se and denied having made any false representations, contending narratively that in fact they did have (or attempted to have) the house re-roofed in March 1982 and that it had then been inspected as re-roofed so as to qualify for a re-financing.

In June 1985, Anderson executed to Harry Norman Realtors a “release and covenant not to sue” in consideration of $750. In July, Anderson dismissed that party with prejudice. In August, Anderson filed a motion for partial summary judgment against Matich and DeFlorio (specifically excepting Home Buyers Inspection Services, Inc., and Joe Morris).

Matich and DeFlorio were not present at the summary judgment hearing in November 1985. The trial court, in its order, granted a partial summary judgment and ruled “that no response or appearance have [sic] been made by defendants [Matich and DeFlorio], plaintiff’s motion as to them is hereby granted.”

The listing service, Home Buyers Inspection Service, Inc. and Joe Morris were dismissed with prejudice as defendants in March 1986. On September 16, 1986, a jury rendered a verdict against Victor Matich and Rosalie Matich (now DeFlorio) for $10,000 actual damages, $5,000 punitive damages and $4,162.25 attorney fees.

On September 24, 1986, the appellees, Matich and DeFlorio hired an attorney, who filed a motion for new trial or judgment notwithstanding the verdict, and motion to vacate the partial summary judgment. By this and accompanying affidavits, Matich and DeFlorio asserted they had not received notice of the summary judgment hearing and, having otherwise diligently attended their case, would have been at the hearing if they had known of it. Further, they contended, among other arguments, that all alleged joint tortfeasors were released by the release plaintiff executed in favor of Harry Norman Realtors, under the Georgia rule that a release of one is a release of all, which release had evidently inured to the benefit of Home Buyers Inspection Service and Joe Morris.

The trial court ultimately ruled: “1) The summary judgment granted against defendants Victor Matich and Rosalie Matich on November 1, 1985 was granted without considering the pleadings on file at that time; 2) Had the court considered the pleadings prior to granting said motion for summary judgment, the court would have found that plaintiff took a release from co-defendants, and the court would not have granted plaintiff’s motion for summary judgment because a release against one joint tortfeasor is also a release against all joint tortfeasors; 3) Therefore, the summary judgment granted November 1, 1985 . . . against defendants Victor Matich and Rosalie Matich is hereby set side and vacated, and as a result the jury verdict for damages amount only rendered September 16,1986 is also vacated and set aside, ...”

On appeal, plaintiff Anderson contends the trial court erred in vacating the partial summary judgment, in response to a motion filed after final verdict and judgment had been entered; erred in considering the appellees Matich’s and DeFlorio’s post-trial motion when they had not interposed any objection before the partial summary judgment granted, and erred in overturning the jury verdict by ruling that a release granted to one defendant in the action released these appellees. Held:

1. The appellees’ motion to dismiss this appeal is denied.

2. The arguments of all the parties are extensively taken up with whether and in what circumstances the trial court can reach behind a verdict and judgment and reverse a prior summary judgment; and the plaintiff appellant furthermore contends that even if the trial court could do so in this case, the action taken was wrong inasmuch as under Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417), the release of Harry Norman Realtors did not effect the release of other defendant tortfeasors.

The trial court has authority in the same term as the jury verdict, or thereafter when it is ruling on a motion for new trial, to set it aside on the motion for new trial. The trial court’s powers to modify a judgment for any meritorious reason while it is still in the breast of the court are legendary. Goode v. O’Neal, Banks & Assoc., 165 Ga. App. 162 (300 SE2d 191); McCullough v. Molyneaux, 163 Ga. App. 352, 353 (294 SE2d 560). The attack in this case was upon the jury’s verdict for damages (see Sunn v. Mercury Marine, 166 Ga. App. 567, 568 (305 SE2d 6)), which verdict was found upon the assumption that the appellees were liable as a matter of law. In fact, however, the appellees were not liable as a matter of law but had been found liable by a grant of summary judgment based solely upon the appellees’ failure to appear at the summary judgment hearing. The trial court was not authorized to grant summary judgment to the plaintiff solely because the defendants did not appear at the summary judgment hearing. Hold v. Bray, 159 Ga. App. 43 (282 SE2d 693). The trial court stated, both in the summary judgment grant and in the vacating of it upon defendants’ motion for new trial, that it did not examine the pleadings, i.e., the record; these recitations are conclusive as to the fact that the trial court did not examine the merits of the summary judgment based upon the record. Vaughn &c. Co. v. Saul, 143 Ga. App. 74, 80 (5) (237 SE2d 622); see General Motors Corp. v. Walker, 244 Ga. 191 (259 SE2d 449). In fact, the record showed very clearly, particularly by the defendants’ detailed, specific verified answers (see Harrison v. Harrison, 159 Ga. App. 578 (284 SE2d 83); Foskey v. Smith, 159 Ga. App. 163 (283 SE2d 33)) that issues of fact remained as to whether the house had been re-roofed, whether the roof was known to be defective and whether the defendants had ever represented otherwise. OCGA § 9-11-56 (c) provides that summary judgment shall issue “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746 (1) (171 SE2d 521). Based upon the record of this case, the plaintiff was not entitled to summary judgment, whether defendants were present at the hearing or not.

This case came to us in the posture of a grant of partial summary judgment, followed by a verdict, which was then set aside. The defendants as of right may appeal a summary judgment when it is granted or may appeal the summary judgment after final judgment. Culwell v. Lomas & Nettleton Co., 242 Ga. 242 (248 SE2d 641); Ramseur v. American Mgt. Assn., 155 Ga. App. 340 (270 SE2d 880). There is no rule of law that says the trial court, while the case is still in its breast during the same term or after, may not reach behind the verdict and vacate the early erroneous summary judgment on a timely motion for new trial. The trial court, having discovered that its early grant of summary judgment to plaintiff on the question of liability for fraud was in error, was correct in vacating it as well as the damages verdict based upon it.

3. However, the trial court erred in dismissing the plaintiff’s complaint with prejudice, instead of granting defendants a new trial. Although the plaintiff was not entitled to summary judgment against the defendants, neither were the defendants entitled to an abbreviated judgment. Under the Supreme Court’s ruling in Posey, supra, and some of the statements made in it, it would seem that the release did not as a matter of law effect a release of these appellees. Therefore, the trial court erred in dismissing the appellant’s complaint with prejudice.

Decided January 13, 1988

Rehearing denied February 26, 1988.

James Y. Rayis, for appellant.

Tony Center, for appellees.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Pope, J., concur.


text:
    75494.
    THE STATE v. ADAMS.
    (366 SE2d 326)
   Beasley, Judge.

The State appeals pursuant to OCGA § 5-7-1 (4) from the grant of defendant’s motion to suppress the results of an intoximeter test and testimony about it. The case charges defendant with driving under the influence of an intoxicant. OCGA § 40-6-391 (1). The core ground for the motion was that the officer stopped defendant without a “founded suspicion” or an “articulable reason.” Probable cause to arrest without a warrant is thus not at issue, except insofar as it must be based on a valid stop in the first place.

Only the arresting officer and defendant testified at the motion hearing. It is unrebutted that the officer stopped defendant based on three congruencies which alerted him: his training to detect impaired drivers, his thirteen years’ experience as a police officer, and his observation of defendant’s manner of driving under the circumstances then prevailing.

It is unrebutted that it was 11:15 p.m. and that defendant was alone in his car, driving northbound on 1-75 in “very moderate, . . . not much” traffic. It is unrebutted that the officer followed him for a distance on the highway and then as he exited up a ramp, stopped, headed across the intersection, stopped at the median, turned left, stopped at the first light, and then turned left to enter 1-85, whereupon the officer stopped him.

The officer testified that what drew defendant to the officer’s attention was that he made two or three lane changes on 1-75 without signalling as required by law, gradually driving from one lane to the other and alternately faster and slower, when there was no traffic to prompt either of these deviations from steady driving. The officer followed defendant up the ramp, at the top of which defendant stopped beyond where a car would normally stop before entering the intersection. This added to the officer’s suspicion that defendant was an impaired driver. The officer had been taught through training and personal experience that these several manifestations were common to drivers impaired by alcohol, so the officer stopped defendant to investigate the accuracy of this suspicion before allowing him to proceed on yet another highway.

Defendant did not contradict the officer’s testimony about the lane changes or the failure to signal or the stop at the top of the ramp. With regard to the alternately faster and slower driving, he merely said he did not think he made any real extraordinary moves, and he later stated that he did not dispute the officer on this point.

The court based suppression of the evidence of intoxication essentially on the finding that the lane change was insufficient to raise suspicion because defendant had to change lanes to exit. In so doing, the court ignored the lane changes unrelated to the exit, the fact that the lane changes occurred more than once for no reason, the other indicators, and the fact that the officer observed failure to signal, a traffic violation. OCGA § 40-6-123 (a). It alone gave sufficient cause to stop. Eisenberger v. State, 177 Ga. App. 673, 674 (2) (340 SE2d 232) (1986). The fact that the officer did not charge defendant with this offense but only with the more serious offense of driving under the influence is immaterial.

“ ‘An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.’ State v. Misuraca, [157 Ga. App. 361, 364 (276 SE2d 679) (1981).]” Eisenberger v. State, supra at 675. This is the type of brief detention authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968) to balance intrusion against crime prevention or law enforcement. As explained in Misuraca, “[momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment.” See also State v. Brown, 178 Ga. App. 307, 308 (1) (342 SE2d 779) (1986); McElroy v. State, 173 Ga. App. 685 (1) (327 SE2d 805) (1985); State v. Golden, 171 Ga. App. 27, 30 (3) (318 SE2d 693) (1984).

While it appears that the court employed a semblance of the proper test for an automobile stop, it is clear that the court did not apply it properly. It did not take into account all of the evidence but instead based its conclusion on one erroneous finding, and it construed the test too restrictively.

We are mindful that on motion to suppress, the findings of the trial judge on conflicting evidence “should not be disturbed by a reviewing court if there is any evidence to support [them].” State v. Swift, 232 Ga. 535, 536 (1) (207 SE2d 459) (1974). See also State v. Peacock, 178 Ga. App. 96, 97 (342 SE2d 364) (1986). The hearing judge sits as “trier of fact; credibility and weight, and the resolution of conflicts within the testimony of a witness, are matters to be determined by the judge.” Branch v. State, 182 Ga. App. 818, 819 (1) (357 SE2d 136) (1987).

Decided February 3, 1988

Rehearing denied February 26, 1988.

John C. Carbo III, Solicitor, Anne Landrum, Assistant Solicitor, for appellant.

Albert B. Wallace, for appellee.

Here, on the crucial issue, matters of credibility and weight and conflict resolution are not involved. Based on a consideration of all of the material undisputed facts, the officer had reasonable and articulated grounds for the suspicion that the driver of the vehicle was impaired. That being the case, he was legally authorized to stop the driver, to investigate whether the suspicion was well-founded and the driver was in need of apprehension or aid. Failure to do so would have raised a question of dereliction of duty. See Misuraca, supra at 365. As stated in Adams v. Williams, 407 U. S. 143, 145 (92 SC 1921, 32 LE2d 612) (1972): “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.”

Judgment reversed.

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


text:
    75518.
    KELLY v. REID et al.
    (366 SE2d 315)
   Beasley, Judge.

Appellant brought an action against two surgeons for medical negligence or malpractice (OCGA § 51-1-27), battery (OCGA § 51-1-14), and fraud in obtaining her consent to surgery. She was referred to the surgeons for a thyroidectomy by her endocrinologist after medication failed to adequately resolve her Graves’ disease. Complications followed the thyroidectomy, and plaintiff claimed that she was injured and damaged by negative effect on her voice and breathing, loss of work and wages, the necessity of extensive further treatment, pain, suffering, and permanent injury.

She signed a comprehensive “Consent to Surgical Treatment” form for a “total thyroidectomy” upon admission to the hospital and before ever talking with either of the surgeons. She claimed that the surgeons were under an affirmative duty to tell her the risks even without her asking. She testified that she did ask Dr. Reid (before the surgery but after signing) what the chances were that there would be a change in her voice, and that he responded that she had nothing to worry about, that the operation was being done over a thousand times a day in the United States. There was no evidence that Dr. Reid’s response was untrue or misleading. She previously had had long discussions with the endocrinologist, had discussed other alternatives to surgery, and had been told by him that there was “a chance of some slight hoarseness or change to [her] voice.”

At trial, plaintiff presented an expert witness who testified about the duties of the surgeons and how, in his opinion, they failed to meet the standard of care which he considered to be that exercised by physicians in general under like or similar circumstances. His testimony, as well as that of plaintiff, was submitted on appeal along with an excerpt from defense counsel’s closing argument, some of the exhibits, and the record in the case.

The trial court directed a verdict against plaintiff with respect to her claim against Dr. Lucas, and also with respect to the issue of the conclusiveness of her consent under OCGA § 31-9-6. See also OCGA § 51-11-2. The jury returned a verdict for Dr. Reid.

1. The court correctly ruled on the consent issue. There was no evidence whatsoever of “fraudulent misrepresentations of material facts in obtaining the [signed consent document].” OCGA § 31-9-6 (d). Plaintiffs testimony unequivocally established that she signed the form on the basis of her discussions with the endocrinologist, who was not a party to the suit, and that Dr. Reid’s response to her inquiry conformed to what the endocrinologist told her. Moreover, the response was not a misrepresentation. Finally, despite the opinion in the excluded testimony of her expert and her own assertion that the surgeons had an affirmative duty to tell her the risks, the law of Georgia does not impose such a duty. Young v. Yarn, 136 Ga. App. 737 (1) (222 SE2d 113) (1975); Hyles v. Cockrill, 169 Ga. App. 132, 133 (2) (312 SE2d 124) (1983). The facts in Spikes v. Heath, 175 Ga. App. 187 (332 SE2d 889) (1985) make it inapposite.

2. Appellant complains that Dr. Lucas was not entitled to a directed verdict because her medical expert testified that the surgeons failed to perform their duty to counsel the patient pre-operatively. Since the duty to counsel which the medical expert was referring to was a duty to advise of the risks of the contemplated procedure, and as stated above no such duty is imposed in this state, appellant shows no support for a potential jury conclusion of liability against Dr. Lucas.

Decided February 1, 1988

Rehearing denied February 26, 1988

Thomas E. Maddox, Jr., for appellant.

3. One of the grounds for new trial was alleged misconduct by defendants’ counsel when he stated during closing argument: “I was amused to know [from the testimony of plaintiffs medical expert Dr. Bussey] that I was referring cases to him. I didn’t know that. If somebody in my firm has, we’re going to have to have a real serious talk up there.” He was referring to the following question during direct examination, and Dr. Bussey’s response: “Q. Have you reviewed cases for [defendants’ attorney] and his firm? A. I have on occasion, yes.” This occurred while the expert’s background was being explored and after he described his substantial experience in reviewing medical cases being contemplated for suit.

At the hearing on the motion, appellant produced several pieces of correspondence from 1983 between Dr. Bussey and defendants’ counsel, regarding his assessment in other medical malpractice cases. Defendants’ counsel explained that when he made the statement, he did not recall these incidents which had occurred three years previously at a time when he was representing Dr. Bussey in a malpractice suit against him. That attorney/client relationship had been specifically excluded from trial by defendants’ motion in limine, made on the theory that Dr. Bussey would gain credibility, or at least defendants would not be able to attack his credibility, if it were known by the jury that Dr. Bussey had been defense counsel’s client and had prevailed in the suit.

The statement not being entirely untrue, in that there was no evidence that counsel was then aware of those incidents, the explanation of non-recall being accepted by the court, and wide discretion being reposed in the trial court with regard to the granting of new trials, Hartford Fire Ins. Co. v. Rowland, 181 Ga. App. 213, 218 (4) (351 SE2d 650) (1986), a new trial is not demanded by law. Although part of counsel’s remark constituted unsworn testimony given during closing argument, or at the least a comment unsupported by an evidentiary basis, this ground was not raised below, or here either for that matter, so we cannot address it. Hammond v. Paul, 249 Ga. 241, 242 (1) (290 SE2d 54) (1982); Georgia Retail Assoc. v. Ga. Public Svc. Comm., 165 Ga. App. 208, 209 (300 SE2d 544) (1983); H. W. Ivey Constr. Co. v. Transamerica Ins. Co., 119 Ga. App. 794, 795 (2) (168 SE2d 855) (1969).

Judgment affirmed.

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

Robert G. Tanner, Mark E. Bergeson, for appellees.


text:
    75593.
    LEWIS v. THE STATE.
    (366 SE2d 305)
   Beasley, Judge.

Lewis appeals his convictions and sentences for aggravated assault, OCGA § 16-5-21, and armed robbery, OCGA § 16-8-41. A motion for new trial was not made. Counsel raises three possible errors: the evidence was insufficient to support the verdict; the pre-trial photographic and physical line-ups were impermissibly suggestive; defendant was denied his right to presence of counsel at the physical line-up. Lewis himself filed a supplemental brief and enumeration of errors in which he argues the general grounds, under the mistaken notion that he was entitled to do so despite the fact that his counsel’s Anders motion was denied. Ga. Const. 1983, Art. I, Sec. I, Par. XII.

1. Based on the evidence at trial, any rational trier of fact could have found defendant guilty of aggravated assault and armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

If we consider also defendant’s enumerations and brief, we see that defendant contends basically what has become known as the “general grounds.” He asserts that (1) the verdict is contrary to the evidence; (2) that the evidence is insufficient to support the verdict; and (3) that the verdict is against the weight of the evidence. See OCGA §§ 5-5-20 and 5-5-21. The only grounds arguable on appeal in this regard go to the sufficiency of the evidence. Grounds one and two are substantially the same; ground three addresses itself solely to the trial judge’s discretion. OCGA § 5-5-21; Ridley v. State, 236 Ga. 147, 149 (1) (223 SE2d 131) (1976), overruled by Jackson v. Virginia, supra, to the extent that it used the “any evidence” standard for making this determination on appeal, as noted in Adams v. State, 255 Ga. 356, 357 (fn. 2) (338 SE2d 860) (1986); Daniel v. State, 180 Ga. App. 687, 688 (1) & (2) (350 SE2d 49) (1986). See also Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988) and Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

Having determined that the evidence was sufficient, applying the Jackson standard of proof, which determination means as well that the verdict is not contrary to the evidence, appellant’s pro se submissions add nothing further to rule on.

2. There is nothing in the record to suggest that the pre-trial line-ups were impermissibly suggestive under the “ ‘totality of the circumstances’ test for reliability.” Ralston v. State, 251 Ga. 682, 683 (2) (309 SE2d 135) (1983) which discusses application of the test in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972); see also Pack v. State, 182 Ga. App. 618 (356 SE2d 557) (1987). Nor is there any factual support for the assertion that defendant was denied presence of counsel. In addition, such claims were not advanced below, and “[t]his court will not consider questions raised for the first time on review. [Cit.]” Laidler v. State, 180 Ga. App. 213, 214 (1) (348 SE2d 739) (1986).

Decided January 14, 1988

Rehearing dismissed February 26, 1988.

C. Jerome Adams, for appellant.

Harry D. Dixon, Jr., District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

Judgments affirmed.

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


text:
    73452.
    KESLER et al. v. VEAL et al.
    (367 SE2d 132)
    Decided February 26, 1988.

      Edward E. Strain III, Andrew J. Hill, Jr., for appellants.

      A. Jack Kemp II, for appellees.
   Birdsong, Chief Judge.

The Supreme Court affirmed what we said in Kesler v. Veal, 182 Ga. App. 444 (356 SE2d 254) with regard to allowance of damages, including punitive damages for the fraud in a fraudulent conveyance action; but under the facts and circumstances of this case reversed the damages award against the transferee. Accordingly, the trial court is instructed to strike the award of damages against the transferee in this case, H. V. Kesler. See Kesler v. Veal, 257 Ga. 677 (362 SE2d 214).

Judgment affirmed in part and reversed in part.

Deen, P. J., McMurray, P. J., Banke, P. J., Car ley, Sognier, Pope, Benham and Beasley, JJ., concur.