author: Blackburn, Judge. Beasley, Judge,

text:
    A96A1761.
    BACON v. THE STATE.
    (483 SE2d 894)
   Blackburn, Judge.

Nathan Jerome Bacon was convicted by a jury of possession of cocaine with intent to distribute and was sentenced to life in prison. He appeals and in his sole enumeration of error contends that the evidence adduced at trial was insufficient to support the conviction.

The facts show that on August 5,1994, Bacon was a passenger in a pickup truck being driven by Lucius Charles Walker. After observing allegedly illegal window tinting on the windshield of the pickup, Georgia State Patrolman Johnny Kennedy stopped Walker’s vehicle. Bacon exited the vehicle at the request of Officer Rick Rountree, and when he got out of the truck, he was holding a white styrofoam cup and a white paper bag. Bacon showed Rountree that the bag contained a piece of chicken and some napkins.

While the officers were speaking with Walker, Bacon began repeatedly circling the truck. Although the officers told him several times to stand still, he continued to circle and at some point placed the bag and cup in the back of the truck. Concerned for his safety because Bacon had continuously ignored his directions, Trooper Kennedy handcuffed Bacon and placed him in the back of the patrol car.

Immediately thereafter, a witness who had been watching these events informed Trooper Kennedy that he had seen Walker throw something white out of the truck and into the woods. The object was identified as a white styrofoam cup containing 6.5 grams of cocaine. Examination of the white paper bag revealed 3.3 grams of cocaine. All 9.8 grams of this cocaine was in large, chunky pieces. Walker testified against Bacon at trial, and confirmed that when Bacon signaled him from the back of the patrol car, Walker threw the styrofoam cup containing cocaine from the truck. Walker also testified that all of the cocaine belonged to Bacon.

At trial, Officer Rountree testified that 9.8 grams of cocaine, the amount of cocaine discovered, was consistent with distribution and was “extremely unusual for one person to have for his personal use.” Rountree was qualified by the trial court as an expert, but was not tendered as an expert. In addition to Rountree’s testimony, former drug task force special agent Brian Rogers testified as to what quantity of cocaine he would routinely purchase for “personal use” in an undercover buy. According to Rogers, a typical cocaine user would buy only one or two rocks of crack cocaine at a time — no more than one-half gram of cocaine. The court did not charge the jury on expert testimony, and Bacon contends that his conviction must be reversed because the State presented no competent evidence at trial regarding his intent to distribute.

To prove possession with intent to distribute, a qualified expert may offer opinion testimony regarding his “knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution.” Davis v. State, 200 Ga. App. 44, 46 (2) (406 SE2d 555) (1991). Such expert testimony, coupled with evidence of the amount of cocaine found in the defendant’s possession, is admissible to prove the defendant’s intent to distribute the controlled substance. Where no additional evidence of intent to distribute is offered, such as scales, drug paraphernalia, large amounts of cash, division of cocaine into individual packages, or a prior conviction of possession with intent to distribute, the expert testimony is critical, and the conviction cannot be sustained without it. See generally James v. State, 214 Ga. App. 763, 764 (449 SE2d 126) (1994). This is so because “[m]ere possession of contraband without more will not serve as the basis for a conviction for possessing contraband for purposes of sale.” (Citations and punctuation omitted.) Id.

Relying on the expert testimony issue, Bacon cites Stephens v. State, 219 Ga. App. 881 (467 SE2d 201) (1996) (physical precedent only), as support for his argument that his conviction must be reversed. Bacon argues that Rountree was not qualified as an expert to give opinion testimony regarding the amount of cocaine discovered, and as no other evidence of intent to distribute was adduced, his conviction cannot stand.

Bacon’s contention that Officer Rountree was not qualified as an expert is not supported by the record. The trial court in this case found that Rountree was qualified to give his expert opinion. The State laid a foundation for his testimony, and Bacon’s objection thereto was overruled. Rountree then testified, “[t]his quantity of cocaine would be extremely unusual for one person to have for his personal use.” Bacon’s argument that Rountree’s testimony was the only evidence offered of his intent to distribute is also inaccurate. In addition to Rountree, the State offered the testimony of former drug task force agent Brian Rogers. Rogers testified that he had two years experience as a drug task force agent, that he had made numerous undercover buys, and that he had participated in approximately 500 drug investigations. After so qualifying himself, Rogers testified that a cocaine user would purchase only approximately one-half gram of cocaine at a time. Bacon allowed this testimony to come in without objection, and the State therefore presented the opinion of two qualified experts regarding Bacon’s intent to distribute.

Bacon’s argument that Rountree’s testimony was the only evidence offered of his intent to distribute also fails to acknowledge the other competent evidence of Bacon’s guilt. Walker, Bacon’s companion at the time of the stop, testified that all 9.8 grams of cocaine belonged to Bacon. The large amount of cocaine involved, 9.8 grams, is itself evidence of intent to distribute. See Kinney v. State, 199 Ga. App. 354 (405 SE2d 98) (1991) (substantial quantity of contraband, seven rocks of cocaine, was evidence of intent to distribute); see also Hayes v. State, 203 Ga. App. 409, 410 (417 SE2d 45) (1992) (quantity of cocaine possessed, seven rocks, illustrates intent to distribute). The large chunks of cocaine found were also consistent with distribution. See Williams v. State, 208 Ga. App. 460 (1) (431 SE2d 130) (1993) (large chunk of cocaine weighing less than seven grams was, inter alia, evidence of intent to distribute).

Bacon also suspiciously circled the stopped truck, causing Trooper Kennedy to handcuff him and place him in the back of the patrol car. See Dyer v. State, 218 Ga. App. 879, 880 (463 SE2d 718) (1995) (reversal of a conviction for possession with intent to distribute which notes, inter alia, the absence of any testimony that the defendant acted suspiciously). Together with the testimony of Rountree and Rogers, all of this additional evidence was sufficient to prove Bacon’s possession with intent to distribute beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Bacon’s argument that his conviction must be reversed because the State did not formally tender either Rountree or Rogers as an expert is also without merit. The basis of the reversal in Stephens, the case Bacon relies upon for his tender argument, was the incompetent “unqualified testimony” of the officer, not the fact that the officer was qualified as an expert but never formally tendered as such. Stephens, supra at 883. See Henry v. State, 265 Ga. 732, 736 (5) (a) (462 SE2d 737) (1995) (interpreter permitted to offer her opinion, functioning “essentially as an expert witness,” although she was not tendered as an expert). Like the defendant in Henry, Bacon was afforded an opportunity to challenge Rountree’s and Rogers’ credentials, and cross-examine them about their testimony. Id. at 736. Inasmuch as the court qualified Rountree as an expert and Bacon permitted Rogers to testify without objection, the State’s failure to formally tender either witness does not warrant a reversal, and Bacon’s conviction for possession with intent to distribute was supported by qualified expert testimony.

Citing Davis, supra, as an example of properly qualified police witness testimony supporting a conviction for possession with intent to distribute, the special concurrence claims the State failed to tender Rountree as an expert. Precisely the same foundation was laid for Rountree’s testimony as was laid for the officer’s testimony in Davis. In Davis, the Court noted that the officer was qualified as an expert because he had 13 years of police experience, had made in excess of 20 drug arrests, had received additional training and instruction on drugs, and had participated in various undercover drug operations. Id. at 46. In this case, Rountree testified that he had nine years of police experience, had seized cocaine on numerous occasions, had additional training in cocaine and the amount of cocaine usually purchased, and had participated in hundreds of undercover drug buys.

Both Rountree and Rogers were qualified as expert witnesses in this case. “To qualify as an expert generally all that is required is that a person must have been educated in a particular skill or profession: his special knowledge may be derived from experience as well as study. . . . It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular area to be deemed an expert.” (Citations and punctuation omitted.) Davis, 200 Ga. App. at 45-46 (2). This is not a situation like that which occurred in Davis v. State, 209 Ga. App. 572 (434 SE2d 132) (1993). In that case, the State attempted to qualify a witness as an expert in “narcotics investigation” for the purpose of testifying regarding possession with intent to distribute. Because no foundation was laid for this testimony, the trial court refused to so qualify the witness, although his testimony was allowed, nonetheless. In reversing the conviction, this Court noted that experience in “narcotics investigation” is not the same as being qualified to testify as an expert regarding drug use. Id. at 574 (2). In this case, the testimonies of Rountree and Rogers suffer from no such infirmity, and therefore, such testimonies were clearly competent evidence of Bacon’s intent to distribute.

Bacon also argues that the testimony of former drug task force special agent Brian Rogers was incompetent because Rogers was neither tendered nor qualified as an expert. However, as previously stated, Bacon did not object to any portion of Rogers’ testimony. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.” (Citations and punctuation omitted.) Garren v. State, 220 Ga. App. 66, 67 (467 SE2d 365) (1996). Therefore, we need not address this argument further.

Finally, Bacon argues that his conviction should be reversed because the trial court failed to charge the jury on expert testimony. Bacon failed to enumerate this point as error. “[A]n enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration.” (Citations and punctuation omitted.) Unden v. State, 218 Ga. App. 463, 466 (5) (462 SE2d 408) (1995). Additionally, “[defendant did not request a charge to the jury concerning the consideration to be given to expert testimony and thus the trial court’s failure to give such a charge does not provide a ground for reversal.” Hesler v. State, 208 Ga. App. 495, 496 (431 SE2d 138) (1993). Accordingly, Bacon’s conviction is affirmed.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, J, concurs specially.

Beasley, Judge,

concurring specially.

I concur even though Officer Rountree was not explicitly tendered as an expert.

Normally a witness cannot state an opinion or conclusion because this would be an invasion of the province of the jury, which is to make its own calculations and conclusions. Maxwell v. State, 262 Ga. 73, 76-77 (5) (414 SE2d 470) (1992). But where the matter at issue is one of which a jury would not have knowledge from common experience and requires expertise, an expert can give an opinion if it is necessary or helpful in order for a jury to determine the facts. OCGA § 24-9-67; Maxwell, supra. “[Kjnowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman’s knowledge and experience,” so expert opinion testimony is admissible on this issue. Davis v. State, 200 Ga. App. 44, 46 (406 SE2d 555) (1991).

Before such an opinion can be admitted, a foundation must be laid which establishes the witness’ credentials for giving an opinion, credentials such as training or experience. Opinion must be based on a proper foundation. See OCGA § 24-9-65. It is by this foundation that the trial judge decides whether the opinion is admissible or not, as a legal matter. The tender of the witness is made to the trial judge when the proponent believes the foundation has been laid, and the tender describes the area of expertise the proponent wishes the witness to testify to. It thus serves an important function, because a witness may be qualified in one area of expertise but be asked for an opinion on another. That was one of the problems which the majority in Davis v. State, 209 Ga. App. 572, 574 (434 SE2d 132) (1993), considered an impediment to affirmance. In Stephens v. State, 219 Ga. App. 881, 883 (1) (467 SE2d 201) (1996) (physical precedent only), the witness was neither qualified as an expert nor tendered as one. Whether or not there is other evidence of intent to distribute is irrelevant to the issue of whether the expert opinion is properly admitted.

Decided March 10,1997.

Hal T. Peel, for appellant.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

Here there was no explicit tender, but the foundational requirement was met in that the qualifications of the officer to testify as an expert in the use of cocaine were set out on the record. The trial court accepted the witness in this regard, and the officer testified about the meaning of the amount of cocaine possessed by. Bacon. Since the officer’s stated qualifications in terms of training and experience gave him adequate credentials to explain the significance of the amount of cocaine with respect to likelihood of personal use or sale (indicative of intent of possessor), no harm resulted from the absence of a proper tender of the witness to the trial judge to make a legal ruling on admissibility of the witness’ opinion.

The real problem here is the lack of a jury charge that cautions the jury it is not required to accept the opinion of the officer regarding the meaning of the quantity. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), p. 12, K. But as the majority points out, this was not enumerated as error.

       In Stephens, the defendant’s conviction for possession with intent to distribute was reversed because the only evidence offered by the State to support that charge was the testimony of an officer, whom the State had not qualified as an expert, that the amount of cocaine discovered was consistent with distribution and not with personal use. Stephens, supra at 881.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A96A1992.
    MIMS v. THE STATE.
    (484 SE2d 37)
   Andrews, Chief Judge.

Andre Mims appeals from his conviction of five counts of selling crack cocaine, contending that the evidence was insufficient and that he was improperly sentenced as a recidivist.

1. Viewed with all inferences in favor of the jury’s verdict, the evidence was that, on December 28, 1993, at 7:29 p.m. and again at 10:00 p.m., Mims sold $20 rocks of crack to undercover agent Rozier. On January 3, 1994, he sold another $20 rock to Rozier. Again, on January 7, at 7:59 p.m. and 8:45 p.m., he sold $20 rocks to Rozier.

While he did not dispute that he sold the crack to Rozier, Mims contended that he was doing so as an informant for the police and that, while he knew Rozier was an undercover agent, he was selling to him in order to impress other dealers in the vicinity. Three of the four buys were captured on videotape, and there was no one else near the sales.

“ ‘The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight. We find that a rational trier of fact could find from the evidence adduced at trial proof of [Mims’] guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).’ (Citations and punctuation omitted.) [Cits.]” Sheats v. State, 210 Ga. App. 622, 623 (2) (436 SE2d 796) (1993).

2. Mims was sentenced to life without parole under OCGA §§ 16-13-30 (d) & 17-10-7 (c). The former provides a maximum sentence of life imprisonment for a second or subsequent offense of sale of a controlled substance. The latter provides that “any person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state other than a capital felony must, upon conviction for such fourth offense . . . serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” (Emphasis supplied.)

Three prior convictions were relied upon by the state for purposes of sentencing Mims as a recidivist, a 1988 conviction of the Georgia Controlled Substances Act, and two 1991 indictments to which Mims pled guilty and was sentenced on October 17, 1991, one for three counts of theft by taking and one for three counts of burglary. While the copies of sentences imposed on these previous offenses are not contained in the record before us, it is conceded that the two 1991 indictments bore separate numbers and that separate sentencing forms were used for each.

Mims contends that, because the sentencings occurred on the same day, the two indictments had been “consolidated for trial” pursuant to OCGA § 17-10-7 (d) and could only be considered one conviction for recidivist sentencing purposes, giving the court the option to sentence him to life with possibility of parole. See Getty v. State, 207 Ga. App. 736, 737 (429 SE2d 100) (1993).

However, “the fact that the sentences were entered on the same day and that the sentences on the possession charges ran concurrent with the [other] sentence does not require the conclusion that the three prior convictions had been ‘consolidated for trial’ within the meaning of OCGA § 17-10-7 [(d)]. See Parker v. State, 170 Ga. App. 295, 296 (2) (316 SE2d 855) (1984), overruled on other grounds, Darty v. State, 188 Ga. App. 447, 448 (373 SE2d 389) (1988).” Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329) (1993). See also Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985); Moore v. State, 169 Ga. App. 24, 27 (7) (311 SE2d 226) (1983).

Judgment affirmed.

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

Decided March 10,1997.

Howard, Carswell & Bennett, Kenneth R. Carswell, for appellant.

Glenn Thomas, Jr., District Attorney, James L. Corbett, Assistant District Attorney, for appellee.


text:
    A96A2493.
    McCLENDON v. 1152 SPRING STREET ASSOCIATES-GEORGIA, LTD. III.
    (484 SE2d 40)
   Andrews, Chief Judge.

Elaine McClendon timely filed a personal injury action against 1152 Spring Street Associates-Georgia, Ltd. Ill, a Georgia limited partnership, voluntarily dismissed the action pursuant to OCGA § 9-11-41 (a), then refiled the action after the expiration of the applicable statute of limitation pursuant to the renewal provisions of OCGA § 9-2-61 (a). The trial court granted summary judgment in favor of the limited partnership on the basis that McClendon failed to properly perfect service of the renewal action. McClendon appeals claiming the trial court erred by granting summary judgment and in denying her motion for reconsideration.

The limited partnership moved for summary judgment in the renewal action on the basis that the prior suit was void and incapable of being renewed under OCGA § 9-2-61 (a) because it had never been served in the prior suit. Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). The record, however, contains evidence that the limited partnership was served in the prior action. The trial court entered an order denying summary judgment on the grounds asserted but granting summary judgment, sua sponte, to the limited partnership on the basis that the prior action could not be renewed after the expiration of the statute of limitation because there was nothing in the record indicating that McClendon paid court costs in the prior action as required by OCGA §§ 9-11-41 (d) and 9-2-61 (a). McClendon moved for reconsideration pointing out that there were no court costs owed in the prior action. The trial court denied the motion for reconsideration without explanation. About a week later, the trial court entered an amended order concluding that there were no court costs owed by McClendon in the prior action and vacating the previous grant of summary judgment for failure to pay court costs. In the same order, the trial court, sua sponte, granted summary judgment to the limited partnership on the following basis: “Defendant 1152 Spring Street Associates-Georgia Ltd. Ill is still entitled to judgment as a matter of law based on the Plaintiff’s failure to properly serve them with a copy of the complaint as required under OCGA § 9-11-4 (d). Plaintiff instead served the Secretary of State pursuant to OCGA § 14-2-62. However, that code section authorizes service on a corporation to be perfected through the Secretary of State only when a corporation fails to appoint or maintain a registered agent or the agent cannot with reasonable diligence be found at the registered office. The record reflects that the Defendant did maintain a registered office and a registered agent for service of process and there is nothing in the record to indicate that Plaintiff could not with reasonable diligence find said agent. . . . Based on Plaintiffs failure to comply with the procedural prerequisites for a renewal action, specifically, insufficiency of service of process, the Defendant’s motion for summary judgment is hereby granted.” McClendon again moved for reconsideration and submitted evidence showing the unsuccessful efforts her process servers had made to serve the limited partnership’s registered agent. The trial court denied the motion for reconsideration without explanation.

As a preliminary matter, we note that the trial court granted summary judgment on a ground not asserted by the limited partnership in its motion for summary judgment. Accordingly, McClendon had no notice and no burden in response to the summary judgment motion to produce evidence on an issue not raised in the motion. Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (458 SE2d 876) (1995). Although a trial court may, sua sponte, grant summary judgment on an issue not raised by the parties, in so doing the trial court “ ‘must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.’ ” (Citations omitted.) Id. at 690 (1). The record does not reflect that any steps were taken by the trial court to give McClendon proper notice and an opportunity to respond prior to the entry of summary judgment on the issue of whether she properly perfected service in the renewal action. But “since [McClendon] does not enumerate this as error on appeal, nor claim she was denied such notice and opportunity in the trial court, this issue has been waived.” Spivey v. Safeway Ins. Co., 210 Ga. App. 775, 776 (1) (437 SE2d 641) (1993). Moreover, the issue of whether McClendon was diligent in attempting to find and serve the registered agent before resorting to substitute service on the Secretary of State was addressed by the parties on McClendon’s motion for reconsideration, and the trial court denied the motion after considering the evidence produced by McClendon. Compare Smith v. Johnson, 209 Ga. App. 305, 306 (433 SE2d 404) (1993).

The trial court granted summary judgment on the basis that McClendon did not perfect personal service on the limited partnership’s registered agent and that substitute service of process on the Secretary of State was insufficient. The trial court’s ruling is based on two conclusions. The first, explicitly stated, is that substitute service was unauthorized because McClendon did not demonstrate that reasonable diligence was exercised in attempting to find and personally serve the registered agent before resorting to substitute service. The second, implicit in the grant of summary judgment for insufficient service, is that any attempt by McClendon to perfect personal service at this point would fail because she would be guilty of laches. Walker v. Ga. Farm Bureau &c. Ins. Co., 207 Ga. App. 874, 875 (429 SE2d 289) (1993). Since the latter conclusion is based on the first, we need address only the trial court’s finding that substitute service on the Secretary of State was unauthorized.

In response to the grant of summary judgment, McClendon moved for reconsideration and produced evidence that, after the renewal action was filed on June 27, 1995, four attempts were made to personally serve the registered agent at the registered office of the limited partnership. The four attempts were made on July 7, 8, 12, and 15, 1995 at 11:05 a.m., 9:36 a.m., 6:15 p.m., and 10:30 a.m., respectively, and on each occasion the registered agent could not be located at the office. On the fourth attempt, the process server spoke to the registered agent’s wife and obtained a telephone number to contact the registered agent. The process server called the number and left a recorded message attempting to contact the agent, but the agent never returned the call. After these attempts to locate and personally serve the limited partnership’s registered agent, McClendon resorted to substitute service on the limited partnership by serving the Secretary of State on July 25, 1995, pursuant to the provisions of OCGA § 14-9-104 (h). Northgate Village Apts. v. Smith, 207 Ga. App. 479, 480 (428 SE2d 381) (1993).

Under OCGA § 14-9-104 (a) (1) and (2) and (b): “(a) Each limited partnership shall continuously maintain in this state: (1) A registered office which may, but need not, be a place of its business in this state; and (2) A registered agent for service of process on the limited partnership. The address of the business office of the registered agent shall be the same as the address of the registered office referred to in paragraph (1) of this subsection, (b) An agent for service of process must be an individual resident of this state, a domestic corporation, or a foreign corporation authorized to do business in this state.” In the absence of any specific provision to the contrary, we conclude that the legislature intended that service of process on the registered agent be made under the applicable personal service provisions of OCGA § 9-11-4 (d). Under OCGA § 14-9-104 (h), “[w]henever a limited partnership shall fail to appoint or maintain a registered agent in this state, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such limited partnership upon whom any process, notice, or demand may be served.” It is undisputed that the limited partnership appointed an individual registered agent for service at its registered office. Accordingly, the issue is whether, prior to serving the Secretary of State under § 14-9-104 (h), McClendon’s process servers made a reasonably diligent effort to serve the registered agent at the registered office of the limited partnership. See Bricks v. Walker Showcase, 255 Ga. 122, 124 (336 SE2d 37) (1985) (addressing similar service requirements under former OCGA § 14-2-61).

A renewed lawsuit under OCGA § 9-2-61 (a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew. Atkinson v. Holt, 213 Ga. App. 427 (444 SE2d 838) (1994). “[Diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit. . . .” Hobbs, supra at 360. Since service of the renewal action in this case was not perfected within the six-month renewal period, McClendon would have the burden of showing that she acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible. Jones v. Cropps, 197 Ga. App. 313, 314 (398 SE2d 295) (1990), overruled, Hobbs v. Arthur, 209 Ga. App. 855, 858 (2) (434 SE2d 748) (1993), reinstated, 264 Ga. 359, 361, n. 3, supra; compare Collier v. Marsh, 203 Ga. App. 322, 323 (416 SE2d 849) (1992), overruled, 209 Ga. App. 855, 858 (2), supra, reinstated, 264 Ga. 359, 361, n. 3, supra. However, in concluding that substitute service was unauthorized, the trial court did not find that McClendon failed to ensure that service was made as quickly as possible, but found that McClendon’s process server did not do enough in attempting to find the registered agent before resorting to substitute service.

The record shows that on four separate days within a nine-day period at various hours McClendon’s process server personally went to the limited partnership’s registered office attempting to find the registered agent at that location. Unable to find him there after four attempts, on the last personal attempt, the process server obtained a telephone number for the registered agent from the agent’s wife and left a recorded message for the agent. The agent did not return the call, and McClendon thereafter resorted to substitute service on the Secretary of State pursuant to OCGA § 14-9-104 (h). Determinations as to whether reasonable diligence was exercised in matters related to service of process are within the discretion of the trial court and will not be disturbed on appeal absent abuse. See Freemon v. Dubroca, 177 Ga. App. 745 (341 SE2d 276) (1986). Because the record clearly shows that the registered agent could not with reasonable diligence be found at the registered office, we conclude the trial court abused its discretion in finding that substitute service under OCGA § 14-9-104 (h) was unauthorized.

Decided March 10,1997.

Eric D. Miller, for appellant.

Drew, Eckl & Farnham, Maureen M. Middleton, Theodore Freeman, for appellee.

Judgment reversed.

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

       The trial court erred by applying the provisions of former OCGA § 14-2-62 applicable to service on the registered agent of a corporation and substitute service on a corporation through the Secretary of State. See OCGA § 14-2-504. Clearly, this case involves the service provisions of OCGA § 14-9-104 applicable to service on the limited partnership’s registered agent and substitute service on the partnership through the Secretary of State. Nevertheless, since the service issues addressed by the trial court are similar under either statute, we analyze the court’s ruling under the applicable provisions of OCGA § 14-9-104.

       The record shows that the attempts to personally serve the registered agent were made by private process servers. Although the record does not show that the process servers were appointed by the trial court pursuant to OCGA § 9-11-4 (c), McClendon states in her appellate brief that they were properly appointed, and the limited partnership does not contend otherwise.

       The limited partnership concedes that it is subject to the service provisions of OCGA § 14-9-104 contained in the Revised Uniform Limited Partnership Act.


text:
    A96A2514.
    CARDWELL v. THE STATE.
    (484 SE2d 38)
   Andrews, Chief Judge.

Anthony S. Cardwell pled guilty to four counts of entering an automobile and was ordered to pay restitution to three victims as a condition of probation. He appeals, contending that the State failed to prove the fair market value of the items taken or damaged. We agree.

A restitution hearing was held pursuant to OCGA § 17-14-1 et seq. at which two of the four victims testified.

The order of restitution does not contain the written findings required by OCGA § 17-14-10 regarding consideration of certain specified factors. While the factors were considered as to victim Watkins as reflected on the partial record before us, the order does not reflect them, as required. Compare Gaskin v. State, 221 Ga. App. 142, 144 (3) (470 SE2d 531) (1996), and Dukes v. State, 213 Ga. App. 701, 703 (5) (446 SE2d 190) (1994), with Cheeks v. State, 218 Ga. App. 212 (460 SE2d 860) (1995). Although this alone would not necessitate a new restitution hearing, since it could be rectified upon remand if the required factors were actually considered although not reflected in the order of restitution, a new hearing is required for another reason.

Decided March 10,1997.

Antje R. Kingma, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Desiree S. Peagler, Niria L. Dominguez, Assistant District Attorneys, for appellee.

“The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” OCGA § 17-14-9. “ ‘(T)he maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action. (Cits.)’ Lawrenz v. State, 194 Ga. App. 724 (1) (391 SE2d 703) (1990).” Gaskin, supra at 145 (3) (b).

Fair market value is the measure of such damages and it must be determined exactly. Id. Here, victim Watkins testified to. the estimated cost of repairs to his truck and the original purchase price of the damaged CD player which he had obtained from a Circuit City employee who obtained it from a computer. In addition to not being the fair market value of the items, both of these figures are inadmissible hearsay. Sabo v. Futch, 226 Ga. 352 (1) (175 SE2d 16) (1970); Hurst Boiler &c. Co. v. Firstline Corp., 206 Ga. App. 446, 447 (1) (426 SE2d 22) (1992); Lovell v. State, 189 Ga. App. 311, 313 (3) (375 SE2d 658) (1988).

There is no testimony or other evidence concerning Davis’ damages, and the documentary evidence in the record for Krissel reflects only purchase prices.

Judgment of conviction affirmed.

Order of restitution vacated and remanded. Pope, P. J., and Smith, J., concur.

       Pursuant to the grant of an out-of-time appeal by the trial court.

       Victim Krissel’s testimony was not taken down, but receipts for the original purchase of the items taken from his vehicle are contained in the record.


author: Birdsong, Presiding Judge.

text:
    A97A0299.
    LINDLEY v. THE STATE.
    (484 SE2d 33)
   Birdsong, Presiding Judge.

Belinda Lindley appeals her conviction of possession of cocaine with intent to sell in violation of the Georgia Controlled Substances Act. Held:

1. Appellant contends the trial court erred by denying her motion for a directed verdict of acquittal at the close of the State’s case, as the State had failed to present competent evidence of intent to distribute.

“ ‘[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.’ ” Alexander v. State, 263 Ga. 474, 478 (3) (435 SE2d 187). The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). Further, “on appeal of the overruling of a motion for directed verdict of acquittal made at the close of the state’s case in chief, the reviewing court can consider all the evidence in the case in determining whether the trial court erred in overruling the motion.” Bethay v. State, 235 Ga. 371, 374-375 (1) (219 SE2d 743).

The evidence as to appellant’s criminal culpability, including the nature of her intent, was in conflict; further, witness credibility was in issue. The facts of this case, viewed in a light most favorable to support the verdict, reveal that the police received a call at 1:50 a.m. from an unidentified source that drugs were being sold and used at a certain apartment house. The police responded and upon arriving at the location observed a Ford Thunderbird parked at one end of the apartment building with five or six people standing around the vehicle. However, appellant, who was wearing an orange shirt and black shorts, was the only person standing on the passenger side of the vehicle. As the arresting officer approached, all the other persons “pretty much stayed put,” except appellant who “[bent] down and with her left hand [threw] something white in color under the car.” The officer was standing an estimated 25 feet (the distance from the witness stand to the first court “pew”) from appellant at the time. No one else walked by appellant at any time. At first the officer did not know whether appellant was going for a gun; her movements were “out of the ordinary,” and no one else at the scene moved. After throwing the object under the car, appellant began “to walk away.” The arresting officer ordered appellant to stop. After securing the scene, the arresting officer found a white Oatmeal Creme Pie box under the car. The officer opened the box and found it to contain a pill box with crack cocaine and a bag containing some small grey plastic bags with cocaine in them. There were approximately 51 pieces of cocaine in the oatmeal box. The arresting officer checked under the car again, and determined there were no other boxes, bags, wadded-up paper, or anything else in that area at that time. The officer made an in-court identification of appellant as the person who threw the Oatmeal Creme Pie box under the car.

This case is distinguishable from the facts in Stephens v. State, 219 Ga. App. 881 (1) (467 SE2d 201) where the only evidence as to intent to distribute was based on the opinion testimony of a police officer who was neither tendered nor qualified as an expert on the use of illegal drugs. Rather, we find the case at bar controlled by our holding in Davis v. State, 200 Ga. App. 44, 45 (1) (406 SE2d 555), where the officer’s opinion testimony, as to the uses and activities of drugs on the street and how they were dealt, was based upon his training and experience working on the street — as was his opinion that “the amount of cocaine discovered would generally be for distribution, as opposed to personal use.” Id. at 45 (2). “Generally nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession; and special knowledge in regard to a particular subject may be derived from experience as well as study and direct mental application.” Carter v. Marble Products, 179 Ga. 122, hn. 1 (175 SE 480); accord Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562).

In this case, the officer was not affirmatively tendered to the court as an expert witness either before or at the time he rendered his opinion testimony. However, the record reveals that he possessed the following education, training and experience: the officer had a high school education; he was a patrol sergeant; he worked for the county sheriff’s department for six and one-half years; he then obtained employment with the city police department and has been with that agency for approximately eleven years; he attended the eight-week police academy course; and in the city police department, he started out as a patrol officer, was promoted to detective, Special Investigations Division (SID), where he served for approximately two years investigating “crimes . . . out of the norm,” such as drug cases, vice, and gambling; he next was detailed to the sheriff’s department and worked with the narcotics task force; and subsequently he was promoted to patrol sergeant. During the two years he was in SID, approximately 95 percent of the cases he investigated were drug cases, of which 80 percent involved cocaine. In this assignment, he would often make between two and five drug buys a night, arresting approximately sixteen to twenty persons a month. He attended numerous schools involving drug identification and drug awareness, including a school presented by the DEA in Macon, Georgia, which was “geared toward drugs,” and several courses at the sheriff’s department taught by the head of the narcotics division. In these later courses he was taught how cocaine was sold. On the grounds that the witness was not qualified as an expert, appellant objected to the opinion testimony of the officer as to how he identified a dealer of crack cocaine. The State erroneously responded that it was not offering the testimony as an expert opinion but that based on the witness’ “experience” in law enforcement and that the witness was capable of responding “as an officer.” The trial court overruled the objection which implicitly constituted its acceptance of the officer’s expert qualifications. Compare Stewart v. State, 246 Ga. 70, 75 (4) (a) (268 SE2d 906) (where the State did not ask the court to accept the witness as an expert, but the defendant specifically objected to the testimony on the grounds the witness had not been so qualified; the trial court’s overruling of the objection “in effect” accepted the witness as an expert). The witness then testified users generally do not have the cocaine rocks on them for any period of time, as they tend to smoke it up relatively soon after buying it; a dealer on the other hand will have five or ten rocks or more, either on his person or in the general area. Subsequently, the witness testified without objection that, based on his experience, a person who is in possession of 51 rocks of crack cocaine is dealing cocaine; they are not using it; users generally have only one to three rocks on them and then only for a short period of time. He further testified without objection that a $10 rock in Atlanta is worth $20 in other areas and that the value of the 51 rocks was approximately $1,010.

Moreover, during argument on appellant’s motion for directed verdict of acquittal, appellant contended that the arresting officer was not properly qualified as an expert and could not be qualified as such in this case. Thereafter, the trial court expressly ruled that the arresting officer was “qualified” as an expert. Although the ruling was not a model of clarity, it appears that the trial court, while perhaps believing the officer lacked formal education and training, determined he was qualified as an expert, based on his field experience. The trial court did not abuse its discretion in finding the officer qualified as an expert based on his considerable experience in drug offense investigations. Compare Bevil v. State, 220 Ga. App. 1, 2 (5) (467 SE2d 586). While we agree that in the absence of qualification as an expert witness the officer could not testify as to how a dealer in crack cocaine could be identified by the amount of cocaine in his possession (Stephens, supra; Stewart, supra), in this case the record establishes that the trial court sua sponte both tacitly and expressly accepted the officer’s expert qualifications; under such circumstances, we find that the State is not required to make a formal tender of the witness as an expert. We further note that the trial court charged the jury as to expert testimony and that appellant has enumerated no error regarding such a charge.

Review of the entire transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which she was found guilty. Jackson v. Virginia, supra. As the evidence was sufficient to authorize the jury to find appellant guilty of possession of cocaine with intent to sell beyond a reasonable doubt, it was not error to deny appellant’s motion for a directed verdict of acquittal. See Humphrey, supra.

2. Appellant’s final enumeration is that the trial court erred in refusing to charge the jury as to the law pertaining to the issue of identification. Appellant timely tendered two written requests to charge — defense Request to Charge Nos. 19 and 20 on the issue of identification. The trial court declined to give the requested charges.

(a) Examination of appellant’s Request to Charge No. 19 reveals that it is taken verbatim from Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2d ed.), p. 39. This charge has not been tailored to the facts of this particular case, and as tendered, it was potentially confusing to the jury. In particular, we note that the requested charge contains instructions as to a certain issue not reasonably raised by the evidence in this case — specifically, the requested charge states that the jury could consider as a factor in assessing reliability of identification “whether the witness, on any prior occasion, did not identify the defendant in this case as the alleged perpetrator.” “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919). We also note that this proposed charge acknowledges that the issue of identity is dependent upon the credibility of the witnesses concerned; the trial court gave detailed charges as to witness credibility and impeachment, and appellant has enumerated no errors regarding the contents of these charges.

(b) Examination of the trial court’s charges to the jury in their totality reveals that the jury was adequately instructed as to the legal principles contained in appellant’s Request to Charge No. 20. The charges given included: (1) the presumption of innocence; (2) that no person can be convicted until each and every element of the crime is proven beyond a reasonable doubt; (3) that the burden of proof rests upon the State; (4) that the defendant has no burden of proof to prove her innocence; (5) that the duty of the jury is to acquit if the State failed to prove defendant’s guilt beyond a reasonable doubt; (6) that facts and circumstances merely placing a grave suspicion of the crime charged or which merely raise a speculation or a conjecture of defendant’s guilt are not sufficient to authorize the conviction of the defendant; and (7) that mere presence at the scene of the crime is insufficient to support conviction, unless the evidence shows beyond a reasonable doubt that such person committed the alleged crime, helped in the actual perpetration of the crime, or participated in the criminal endeavor.

Decided March 10,1997.

Edwards & McLeod, Jennifer McLeod, for appellant.

David McDade, District Attorney, William J. Atkins, Assistant District Attorney, for appellee.

A trial court does not err in failing to give an instruction in the exact language requested “where the court’s charge substantially and adequately covered the principles contained in [the charge request].” Harrison v. State, 257 Ga. 528, 531 (4) (361 SE2d 149). The charges given by the trial court substantially and adequately covered all principles contained in appellant’s Request to Charge No. 20; the trial court did not err in denying this charge request.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Eldridge, Judge.

text:
    A97A0422.
    POTTER v. AMERICAN MEDCARE CORPORATION et al.
    (483 SE2d 43)
   Eldridge, Judge.

The appeal in the case sub judice arose from the trial court’s order dismissing with prejudice appellant’s complaint for failure to respond to an order compelling him to respond to certain discovery requests.

Appellant filed his complaint on January 17, 1995, based on the Georgia securities laws, OCGA §§ 10-5-12 and 10-5-14, and common law fraud, seeking damages in excess of $200,000 for appellees’ alleged misrepresentations which induced him to purchase appellee American Medcare Corporation (“AMC”) stock. Each of the appellees filed answers on March 16, 1995, and appellee AMC filed a counterclaim which alleged appellant committed an act which consisted of a pattern of racketeering in violation of OCGA § 16-14-4 and common law fraud. Both of appellant’s claims and appellee AMC’s counterclaim were very fact-intensive and required the opposing party to conduct extensive, fact-specific discovery in order to be able to defend against such claims.

The discovery requests at issue were served by the appellees on the appellant on March 16, 1995. Appellant was granted several extensions to respond to appellees’ discovery requests because there was a companion case pending simultaneously before the American Arbitration Association; the last extension expired May 31, 1995. After the final extension of time expired, appellees’ counsel wrote appellant’s counsel on October 13, 1995, and October 20, 1995, requesting the overdue responses to appellees’ discovery requests. In the October 20, 1995 letter, counsel for appellees warned counsel for appellant that if the appellees did not receive responses to the discovery requests by October 27, 1995, he would file a motion to compel discovery. On October 23, 1995, appellant replied that he would respond to appellees’ discovery requests within the week; however, appellant’s responses were not served on appellees until December 27, 1995, almost seven months from the expiration date of the final extension for appellant to respond to appellees’ discovery requests.

Appellant answered several interrogatories, which sought the specific factual basis of appellant’s claims, with answers of “multiple discussions with defendants” and “multiple verbal representations by defendants.” Such answers were so vague that they could not be considered proper responses to these fact-specific interrogatories. Appellant objected to other interrogatories and objected to producing tax returns filed by the appellant and MMI, which is a consulting company owned by appellant. By letter dated January 2, 1996, appellees informed appellant that they felt many of appellant’s responses were deficient. Finally, on February 28, 1996, more than eleven months after the requests for discovery had been served on appellant and more than eight months from the final extension for appellant to respond, appellees filed their motion to compel.

On April 5, 1996, the trial court entered an order which found that appellant’s responses were inadequate, which ordered appellant to fully respond to appellees’ discovery requests within ten days, and which awarded appellees $300 as reasonable expenses, including attorney fees incurred in filing the motion. The April 5, 1996 order was vacated by the trial court because appellant had obtained an extension of time to respond to the motion to compel, which extension would not expire until April 8, 1996. On April 8, 1996, appellant responded to appellees’ motion to compel. Appellant stood by his initial responses but attached to his new response a copy of what he contends was a daily diary of his activities on behalf of AMC. This document, which was a 51-page, single-spaced, margin-to-margin, small-font diatribe written by appellant, was not responsive to the interrogatories in question which were seeking to elicit specific facts upon which appellant based each of his claims.

On April 23, 1996, after considering the appellant’s response, the trial court re-entered the identical order previously entered on April 5, 1996. Pursuant to the trial court’s order, May 3, 1996, was the last day for appellant to supplement his response in order to give full and complete answers to appellees’ discovery requests and to produce the ordered documents. On May 1, 1996, appellant’s counsel wrote appellees’ counsel requesting “some leeway” in putting together his responses. Appellees’ counsel replied that he would not grant an extension without a written request setting forth exactly how much time appellant needed and without his clients’ consent, and directed appellant’s counsel to let him know if he wanted to propose such an extension. Appellees’ counsel received no further communication from appellant’s counsel regarding such extension.

On May 9, 1996, six days after appellant’s responses were due, appellees filed a motion to dismiss appellant’s complaint. On the same day, appellant forwarded a check in the amount of $300 to the appellees for the sanctions awarded by the trial court. Appellees supplemented their motion to dismiss on May 13, 1996, to advise the trial court of their receipt of the $300. The same day, appellant filed supplemental responses to appellees’ discovery requests, 12 days after they were due. On May 29, 1996, appellant filed his reply brief to appellees’ motion to dismiss and requested oral argument on the motion. The trial court granted appellant’s request for oral argument and set the motion down for a hearing.

On June 14, 1996, appellees filed a second supplement to their motion to dismiss, alleging that appellant’s supplemental responses did not fully comply with the trial court’s order. The motion to dismiss was heard by the trial court on July 1, 1996. The trial court granted such motion and dismissed appellant’s complaint with prejudice. On July 8, 1996, at the request of the appellant, the trial court entered a final judgment on such order. It is from the entry of final judgment that this appeal comes.

Appellant’s sole enumeration of error is that the trial court erred in granting appellees’ motion to dismiss.

OCGA § 9-11-37 sets forth the two-step procedure the trial court must follow prior to imposing one or more of the sanctions set forth in OCGA § 9-11-37 (b) (2). After a motion for an order compelling discovery is made, heard, and granted by the trial court, the obstinate party must be afforded another opportunity to provide the requested discovery. If the party still fails to provide the ordered discovery, then the trial court can enter an order as is just, including, among other things, the sanctions set forth in OCGA § 9-11-37 (b) (2). Savannah Surety Assoc, v. Master, 240 Ga. 438 (241 SE2d 192) (1978); see Rubin v. Cindyreal, 171 Ga. App. 45 (318 SE2d 520) (1984). It is clear from the record and transcript before this Court that the trial court properly followed this procedure prior to the imposition of the sanction of dismissal of appellant’s complaint with prejudice pursuant to OCGA § 9-11-37 (b) (2) (C).

The trial courts have been granted “broad control over the use and limitations of discovery procedures. . . .” Lewis v. Evans, 212 Ga. App. 49, 51 (441 SE2d 425) (1994). “ ‘Historically it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse. This policy is applicable to a trial judge’s exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act. (Cit.)’ [Cits.]” Rubin v. Cindyreal, supra at 46; see Rucker v. Blakey, 157 Ga. App. 615 (278 SE2d 158) (1981). However, such discretion is not without limits, and in fact, any sanction must be just and specifically related to the particular claim which was at issue in the order to provide discovery. Carey Canada v. Hinely, 181 Ga. App. 364 (352 SE2d 398) (1986), rev’d on other grounds, 257 Ga. 150 (356 SE2d 202) (1987).

It is only in the most flagrant cases, where the failure to respond to discovery requests is “wilful, in bad faith or in conscious disregard of an order”' that the drastic sanction of dismissal of the plaintiff’s complaint should be invoked by the trial court. (Emphasis in original.) Rubin v. Cindyreal, supra at 46; Thornton v. Burson, 151 Ga. App. 456, 459 (260 SE2d 388) (1979). “ ‘There is no requirement that the plaintiff display and the trial court find actual wilfulness. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary noncompliance. A conscious or intentional failure to act is in fact wilful.’ . . . [Cit.]” Stolle v. State Farm, &c. Ins. Co., 206 Ga. App. 235, 236 (424 SE2d 807) (1992). “Where a motion for sanctions is brought under OCGA § 9-11-37 (b) (2) for a party’s failure to comply with an order compelling [responses to discovery requests], the existence or nonexistence of wilfulness should be considered not only in the context of the time period prescribed in the order compelling answers, but in the context of the entire period beginning with service of interrogatories and ending with service of answers. Events transpiring during this entire time period are probative of whether appellant acted with ‘conscious indifference to the consequences of failure to comply’ with the order compelling answers.” (Citations and punctuation omitted.) Didio v. Chess, 218 Ga. App. 550, 551 (462 SE2d 450) (1995). A trial court’s finding that a party has wilfully failed to comply with its discovery obligations will not be reversed if there is any evidence to support it. Oliff v. Smith, 214 Ga. App. 358, 359 (447 SE2d 707) (1994).

Applying these criteria to the case sub judice, we find that there was evidence to support the trial court’s finding that appellant wilfully and consciously disregarded the discovery order. At the time of the July 1, 1996 hearing on appellees’ motion to dismiss, appellant still had not fully complied with the trial court’s order requiring a response to discovery requests. By that time, more than 13 months had elapsed from the time appellant’s responses were originally due, the last extension of time had expired May 31, 1995, and almost two months had elapsed since full and complete supplemental responses were due under the trial court’s order. Appellant had been on notice of the deficiencies in his supplemental responses, if not from the inception of his supplemental answers, at least from June 14, 1996, when the appellees filed a second supplement to their motion to dismiss setting forth such deficiencies, which was served on appellant along with a letter requesting full and complete responses. During the 17 days between the time appellees filed their second supplement to their motion to dismiss and the date of the hearing, appellant made no effort to correct any of the deficiencies. As the trial court noted, it was only at the hearing, after it was apparent that the trial court was extremely displeased with appellant’s lack of response to her order that appellant’s counsel offered to try and contact her client and once again attempt to fully respond to the ordered discovery. Appellant’s failure to sufficiently and expediently respond was a “conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.” (Citation and punctuation omitted.) Didio v. Chess, supra at 551.

At the time the trial court dismissed appellant’s complaint, appellant’s supplemental responses to appellees’ discovery request were still inadequate and evasive. In order for appellees to defend against fact-intensive claims under the Georgia securities laws and common law fraud, it is essential for them to be able to determine what appellant’s factual basis is for each of these claims, which can be determined only through discovery. We find no abuse of discretion on the trial court’s part.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided March 10,1997.

McAlpin &.Henson, Kirk M. McAlpin, Jr., Jana K. Bishop, for appellant.

Chambless, Higdon & Carson, Marc T. Treadwell, Swift, Currie, McGhee & Hiers, Christopher D. Balch, Glass, McCullough, Sherrill & Harrold, Ugo F. Ippolito, for appellees.

       The facts of the case sub judice are distinguishable from the case of Harwood v. Great

        American Mgmt. &c., 171 Ga. App. 488 (320 SE2d 269) (1984), cited by the appellant. In Harwood, while the plaintiff had only partially complied with the trial court’s order compelling discovery within the time set forth in such order, plaintiff had fully complied with the trial court’s order prior to the motion to dismiss being heard. Further, the trial court’s order was vague and left it to the plaintiff to answer “ ‘within the realm of utmost good faith.’ ” Id. at 490. There was evidence that plaintiff’s counsel had contacted defendant’s counsel on several occasions to ask him what further information he wanted, but the latter would only say he wanted the plaintiff to do what the trial court had ordered. When the plaintiff did respond to the interrogatories, such responses did not contain any information that was relevant to the litigation that had not previously been provided by the plaintiff to the defendant. Therefore, such late responses had not impeded the defendant’s ability to prepare a defense. Under this peculiar set of facts, plaintiff’s conduct could not reasonably be said to be wilful or a flagrant disregard of either the trial court’s order or the discovery process.


author: Johnson, Judge.

text:
    A96A1929.
    SAGON MOTORHOMES, INC. v. SOUTHTRUST BANK OF GEORGIA, N.A.
    (484 SE2d 21)
   Johnson, Judge.

Southtrust Bank sued Sagon Motorhomes, a retailer of recreational vehicles, to recover amounts allegedly owed on an account. Sagon appeals from the trial court’s grant of summary judgment in favor of Southtrust for the amounts allegedly due.

In 1988, Sagon and Southtrust entered into an agreement (the “main agreement”) which enabled Sagon’s customers to finance their RV purchases through Southtrust. Sagon would, from time to time, sell to the Bank the “Retail Installment Sales Agreements” Sagon made with its customers.

Pursuant to the main agreement, when the Bank purchased an installment agreement, it would pay to Sagon, up front, the amount of the loan and a portion of the interest which the Bank expected to receive over the life of the loan. Of the amount paid to Sagon that represented expected interest, 75 percent would be paid directly to Sagon and 25 percent would go into a “reserve account” set up in the main agreement. The reserve account was assigned to Southtrust “as security for the performance by [Sagon] of all its obligations, warranties, representations and covenants hereunder;. . . and as security for and against any rebates or refunds whatsoever which Bank may make to [Sagon’s] customers as a result of any prepayment of any Agreement. Bank may, but is not required to, charge any amounts due from [Sagon] against such reserve account. Bank may hold all reserves or any credits due [Sagon] until the liquidation of all Agreements purchased from [Sagon] and other obligations of [Sagon] to Bank are satisfied in full.”

The main agreement further stated: “If Bank is required to rebate interest on any Agreement. . . [Sagon] will promptly remit to Bank a pro-rata portion of all unearned charges.” A similar provision contained in the assignment clause of each individual installment agreement provided: “In the event [Sagon’s customer] prepays the unpaid balance of the Note and is entitled to receive a refund for prepayment then [Sagon] will pay to [Southtrust] in cash a proportionate amount of such refund where [Southtrust] has discounted or advanced funds to [Sagon] on account of any refundable amounts.”

Many of Sagon’s customers repaid their balances early and refinanced with other institutions. As a result, Southtrust charged against the reserve account amounts representing the interest payments that were made up front to Sagon but were never realized from the borrowers over the life of the loans. Eventually, the reserve account reflected a “negative balance,” which Southtrust sued to recover. On Southtrust’s motion for summary judgment, the trial court held that because the contract created this “account,” Sagon was liable to pay Southtrust any negative balance in the account. Finding the amount of the negative balance to be supported by uncontroverted evidence, the trial court awarded summary judgment to Southtrust in the amount of $69,698.

On appeal from the grant of a motion for summary judgment, we review the record de novo to determine if. the moving party has demonstrated there is no genuine issue of material fact and the undisputed facts, construed in a light most favorable to the non-moving party, warrant judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996). The construction of a contract is a question of law for the court unless, after the application of the rules of construction, the contract remains ambiguous. Century 21 &c. v. Cason, 220 Ga. App. 355, 358 (2) (d) (469 SE2d 458) (1996); Kennedy v. Brand Banking Co., 152 Ga. App. 47, 53 (4) (262 SE2d 177) (1979).

1. Contrary to the trial court’s finding, the mere fact that the contract creates a “reserve account” does not mean Sagon is liable for a negative balance in that account. The contract provides only that sums in the “reserve account” were pledged as security which the Bank may charge against. The “account” upon which a suit may be based is an indebtedness. See Gage v. Tiffin Motor Homes, 153 Ga. App. 704, 706 (1) (266 SE2d 345) (1980). OCGA § 11-9-106 defines an account as any right to payment not evidenced by an instrument or chattel paper. OCGA § 7-4-16 defines a commercial account as “an obligation for the payment of money arising out of a transaction to sell or furnish . . . goods or services. . . .” Sagon owes Southtrust these sums only if a provision of the contract or another agreement, express or implied, requires Sagon to make these payments.

2. As noted above, the main agreement provided that if South-trust were required to “rebate” or “refund” any interest, Sagon would pay Southtrust a “pro rata” portion of any “unearned” charges. The assignment clause of each installment contract contained similar language which required Sagon to pay a “proportionate amount” of any “refund” Southtrust had to pay a Sagon customer who repaid a loan early.

Webster’s Third New International Dictionary defines a “rebate” as “a return of a portion of the interest on a loan for payment of the loan before its due date.” Black’s Law Dictionary (6th ed.) similarly defines “rebate” as a “[discount; deduction or refund of money in consideration of prompt payment.” In this case, Southtrust’s representative testified that all the installment agreements purchased from Sagon were simple-interest loans; therefore, the Bank did not refund or rebate any prepaid interest to any Sagon customer who repaid his or her debt early. As this testimony shows, the condition precedent contained in these clauses did not occur, and no duty of Sagon to repay “unearned” interest was triggered. See generally OCGA § 13-3-4. “When a plaintiff’s right to recover on a contract depends upon a condition precedent to be performed by him, he must allege and prove the performance of [that] condition ... or allege a sufficient legal excuse for its nonperformance.” (Citations and punctuation omitted.) Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, 560 (3) (177 SE2d 819) (1970). Therefore, Southtrust has not shown as a matter of law that these provisions of the contract or assignment clause entitle it to recover “unearned” interest payments made to Sagon.

Furthermore, even if these provisions apply, there is no clear evidence in the record showing the meaning of the terms “a pro-rata portion of all unearned charges” or “a proportionate amount of such refund.” Southtrust’s representative testified that the Bank believed that term to mean Sagon was required to repay all “unearned” interest payments. As he acknowledged, however, “I could think of two or three different ways to say prorata.” This term is undefined and ambiguous, and no rule of construction can clarify it based on the record before us. Therefore, a question of fact remains on this issue. See American Communities Corp. v. RIHT Mtg. Corp., 195 Ga. App. 101, 102 (1) (392 SE2d 318) (1990).

3. Sagon contends a “non-recourse” provision of the contract prohibits any recovery whatsoever by Southtrust. We disagree. The clause in question provides that “[t]he Agreements purchased by Bank from Dealer hereunder shall be purchased by Bank without recourse to Dealer, except as may be otherwise specified herein or as set forth in the Assignment of the Agreement.” This clause may prevent Southtrust from seeking recovery against Sagon resulting from a default in an installment contract, but it does not prohibit an action based on an alleged violation of the main agreement. See Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995) (contract clear and unambiguous based on plain meaning of words used).

Decided February 25,1997

Reconsideration denied March 11,1997.

Glaze, Glaze & Fincher, Kirby A. Glaze, Thomas M. Conway, for appellant.

Goldner, Sommers, Scrudder & Bass, Benjamin D. Ladner, for appellee.

4. The judgment in this case is reversed and the case remanded to the trial court for further proceedings. On remand, evidence showing the course of dealing between the parties may clarify the meaning of these contract provisions. Toncee v. Thomas, 219 Ga. App. 539, 541 (2) (466 SE2d 27) (1995). Evidence may also indicate conditions precedent were waived. See id. at 544 (6). As these issues are not before us, we do not address them.

Judgment reversed and case remanded.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.

       The original agreement was entered by Sagon and First American Bank, a predecessor of Southtrust. As Southtrust assumed the rights and obligations under this contract, reference to First American is eliminated for the sake of simplicity.

       The precise language of this provision states: “Bank will pay to [Sagon] the Amount Financed’ and 75% of the excess, if any, of the ‘Finance Charge’ provided for in the agreement over a retention rate established by the bank from time to time. The balance of the excess or 25% will be deposited and held in a ‘Reserve Account’ to be established by the Bank.”


text:
    A96A2448.
    WHITE v. HEARD et al.
    (484 SE2d 12)
   Johnson, Judge.

William Heard, Jr. and Elizabeth Heard Flournoy petitioned for the appointment of a guardian for their mother, Elizabeth Bosch, alleging she was mentally incapable of managing her business and personal affairs. Flournoy’s son, Kenneth White, moved to intervene in the guardianship proceeding, claiming Bosch was competent and did not need a guardian. Along with the motion to intervene, White filed motions to dismiss, for an additional medical examination, for a continuance, and for Bosch to appear at the final hearing. The trial court found that White was not entitled to intervene and therefore denied all of his motions. White requested a certificate of immediate review from the trial court, but his application was denied. After a final hearing in which White was permitted to present evidence and cross-examine witnesses, the probate court found Bosch incapacitated and appointed William Heard as her guardian. White appeals.

1. White contends the trial court erred in denying his motion to intervene when he met the requirements both for intervention as a matter of right and for permissive intervention. We disagree.

(a) Intervention of right. An applicant shall be permitted to intervene as a matter of right when: (1) a statute confers an unconditional right to intervene; or (2) he claims an interest relating to the property or transaction which is the subject matter of the action and he is so situated that the disposition of the action may impair or impede his ability to protect that interest, unless his interest is adequately represented by existing parties. OCGA § 9-11-24 (a).

(1) White points to no statute which gives him an unconditional right to intervene in the guardianship proceeding. Instead, he states equivocally that “it could be argued that” Kipp v. Rawson, 193 Ga. App. 532 (388 SE2d 409) (1989) and In re Martin, 218 Ga. App. 79 (460 SE2d 304) (1995), in which the Court construed OCGA §§ 9-11-24 and 29-5-6 together to determine whether third party intervention in guardianship proceedings is authorized or required, create an unconditional right to intervene. Neither case gives such an unconditional right to intervene. In Kipp, supra, this Court held that intervention is permitted in a probate court guardianship proceeding and, therefore, the trial court was mistaken in concluding that there was no provision for third party intervention in the guardianship proceeding as a matter of law. Id. at 534 (1). While the court in Kipp recognized that intervention is permissible under OCGA §§ 9-11-24 and 29-5-6, it also made it clear that a movant must make a satisfactory showing he is entitled to intervene. Id. at 534 (2). Accordingly, the right to intervene is not absolute.

White’s reliance on In re Martin, supra, is also misplaced. The issue in that case was whether the Department of Human Resources (“DHR”) was required to file a motion to intervene in a guardianship proceeding rather than filing an objection to the petition and petitioning to have itself appointed guardian. We held that DHR was not required to file a motion to intervene. Id. at 81 (2). Martin does not support White’s claim that he has an unconditional right to intervene.

(2) In demonstrating his right to intervene under OCGA § 9-11-24 (a) (2), White was required to claim an interest in the outcome of the proceeding and an interest relating to the property or the transaction which is the subject matter of the action. White admits that he has no interest relating to the property at issue in the proceeding, but states that he possesses a “strong personal interest” in having his grandmother found competent. He claims she asked him “to help her fight the petition.” Third party intervention allows a person to come into a case in order to protect his right or interpose his claim. See generally AC Corp. v. Myree, 221 Ga. App. 513, 515 (1) (471 SE2d 922) (1996). White has not shown that the proposed guardianship would affect any of his rights or claims. In the absence of White’s own interest in the outcome and in the property or the transaction at issue, he has no right to intervene. See OCGA § 9-11-24 (a) (2); see generally Kubler v. Goerg, 197 Ga. App. 667, 668 (1) (339 SE2d 229) (1990).

Decided February 24,1997

Reconsideration denied March 11,1997

Miles & Reese, Dana B. Miles, for appellant.

Page, Scrantom, Sprouse, Tucker & Ford, William L. Tucker, Charles H. Ford, Jr., Hatcher, Stubbs, Land, Hollis & Rothschild, Joseph L. Waldrep, J. Barrington Vaught, Jacob Beil, for appellees.

(b) Permissive intervention. OCGA § 9-11-24 (b) provides that an applicant may be permitted to intervene in an action when a statute confers a conditional right to do so, or when the applicant’s claim or defense and the main action have a question of law or fact in common. In deciding whether to allow intervention under this subsection, the trial court also considers other relevant circumstances, such as the degree to which the intervenor would be affected by the outcome in the underlying case. Branch v. Maxwell, 203 Ga. App. 553, 554 (1) (417 SE2d 176) (1992). “Whether permissive intervention is granted is addressed to the sound discretion of the trial judge, and a decision on this issue will not be reversed unless there is an abuse of discretion. [Cit.]” Sloan v. Southern Floridabanc &c. Assn., 197 Ga. App. 601, 603 (2) (398 SE2d 720) (1990). Even assuming OCGA §§ 29-5-6 and 9-11-24 construed together create a conditional right to intervene, because White has neither asserted any claim or defense of his own, nor shown that he would in any way be affected by the outcome of the proceeding, the trial court did not abuse its discretion in denying White’s motion to intervene. See Allgood v. Ga. Marble Co., 239 Ga. 858, 859-860 (239 SE2d 31) (1977).

2. In light of our holding in Division 1, we do not reach White’s remaining enumerations of error.

Judgment affirmed.

McMurray, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A1695.
    CAPITOL INDEMNITY CORPORATION v. L. CARTER POST 4472 VETERANS OF FOREIGN WARS, INC.
    (484 SE2d 52)
   Andrews, Chief Judge.

Capitol Indemnity Corporation (Capitol) appeals from the trial court’s grant of summary judgment to Post 4472 of the VFW (VFW) and the denial of its motion for summary judgment. The court concluded that Capitol owed a defense to the VFW under the general liability insurance policy it issued.

Roberson, a patron of the VFW, was severely injured when he was stabbed in the neck by Wolfe, another patron, on August 26, 1994. Roberson sued the VFW, contending that it negligently allowed Wolfe to reenter the VFW after he had been asked to leave due to intoxication and vulgarity. Capitol then filed its motion for declaratory judgment, contending that this act was not covered due to the policy’s exclusion for assault and battery.

As applicable to this incident, the General Liability Coverage section of that policy provides in Section I as follows: “1. Insuring Agreement, a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ ... to which this insurance applies. We will have the right and duty to defend any ‘suit’ seeking those damages. . . . b. This insurance applies to ‘bodily injury’ . . . only if: (1) The ‘bodily injury” ... is caused by an ‘occurrence’ that takes place in the ‘coverage territory’; [(2) during policy period].” Bodily injury is defined in Section V (3) as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time,” and occurrence is defined in Section V (12) as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (Emphasis supplied.)

Appended to the policy is an endorsement headed “Exclusion — Assault or Battery.” It specifically modifies the “Commercial General Liability Coverage Part” of the policy and states that “[t]his insurance does not apply to bodily injury, ... or personal injury arising out of assault, battery, or assault and battery. This exclusion applies to all coverages under this coverage part. Definitions: 1. Assault — A willful attempt or offer with force or violence to harm or hurt a person without the actual doing of the harm or hurt. 2. Battery — Any battering or beating inflicted on a person without his or her consent. 3. Assault and Battery — For purposes of this insurance, this term includes assault and battery, and specifically includes the ejection or exclusion with force or violence, or attempt thereof, of any person from the premises by the insured and his/her/its employees or agents.”

The trial court, citing no authority, concluded that since exclusions must be strictly and narrowly construed, “the Court finds the Assault or Battery Exclusion in the policy . . . excludes losses arising out of assaults and batteries committed by [the VFW’s] servants” and concluded it did not apply because Roberson’s claim “rests upon allegations of the insured’s negligence in failing to protect its patrons from a person known to be violent.”

“An insurance policy is governed by the ordinary rules of contract construction. [Cit.] The hallmark of contract construction is to ascertain the intention of the parties. OCGA § 13-2-3; [cit.]. However, when the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties’ intent. [Cit.]” (Footnote omitted.) Park ’N Go &c. v. U. S. Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500) (1996).

“Under Georgia law, an insurance company is free to fix the terms of its policies as it sees fit, so long as such terms are not contrary to law, and it is equally free to insure against certain risks while excluding others.” (Footnote omitted.) Continental Cas. Co. v. HSI Financial Svcs., 266 Ga. 260, 262 (466 SE2d 4) (1996).

“ An insurer’s duty to defend is determined by comparing the allegations of the complaint with the provisions of the policy. (Cits.)’ [Cits.]” Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 426 (1) (457 SE2d 696) (1995).

So doing, it is apparent that the act for which Roberson seeks recovery, the stabbing by another patron, was not an “accident” as defined by the policy. Roberson may, of course, pursue his negligence suit against the VFW for its negligence in allowing the violent inebriated patron to return to the club, but, under the terms of the policy, Capitol need not defend the suit.

Even assuming that the allegations of the complaint could somehow be read so as to include the club’s negligence as an “accident,” the exclusion precludes coverage. The bodily injury arose out of an assault and battery. Al Who Enterprises, supra at 425; Dynamic Cleaning Svc. v. First Financial Ins. Co., 208 Ga. App. 37 (430 SE2d 33) (1993).

The VFW’s attempts to construe the unambiguous policy so as to avoid Al Who and Dynamic Cleaning and restrict the exclusion only to assaults and batteries committed by VFW employees are of no avail. “ ‘When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the courts must expound the contract as made by the parties. Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage.’ (Citations and punctuation omitted; emphasis supplied.) Allstate Ins. Co. v. Grayes, 216 Ga. App. 419, 422 (3) (454 SE2d 616) (1995).” Southern Fire &c. Co. v. Jamerson, 223 Ga. App. 582, 583 (1) (479 SE2d 404) (1996).

Decided March 11,1997.

Kent, Worsham & Smart, Don Smart, for appellant.

Morris & Tillman, Keith M. Morris, for appellee.

Therefore, the grant of summary judgment to the VFW and denial thereof to Capitol were error.

Judgment reversed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A2098.
    SMITH v. U-HAUL COMPANY GEORGIA.
    (484 SE2d 49)
   Andrews, Chief Judge.

Donald Smith appeals the trial court’s order granting U-Haul’s motion for summary judgment on his negligence and breach of contract claims. Smith also contends the trial court erred in denying his motion to compel discovery and in refusing to extend the discovery period. Because we find no reversible error, we affirm the judgment of the trial court.

This case arose as a result of an accident in which a U-Haul truck rolled backward and pinned Smith’s leg against a building. On April 20, 1993, Smith rented the diesel U-Haul truck from Red Barn of Byron, a franchisee of U-Haul and a co-defendant in this action, and drove it to a manufacturing company in Decatur. When he arrived at the loading bay, Smith left the engine running, put the gear in neutral, engaged the parking brake and got out. Smith testified at his deposition that the truck was parked on a slight grade going down toward the dock. He got out of the truck, went around to the rear, placed his foot on the bumper and attempted to raise the rear door. The truck started rolling backwards, pinning and crushing his leg against the wall. Smith shouted for help, and William Jackson, one of the manufacturing company employees, ran to the truck and drove it forward. Jackson testified at his deposition that the parking brake was engaged when he got in the truck.

Smith filed this personal injury action against U-Haul and the franchisee, Red Barn, claiming they were negligent in failing to inspect, maintain and repair the parking brake. He also filed a breach of contract claim, alleging the defendants breached the warranty provisions of the rental agreement. The court granted U-Haul’s motion for summary judgment. Red Barn remained a defendant in the case.

1. First, Smith contends the trial court erred in denying his motion to compel discovery and in refusing to extend discovery. Discovery began on May 19, 1994, when defendant U-Haul filed its answer. Discovery as to the franchisee, Red Barn, did not begin until January 1995, when the correct owner was served and filed his answer. In May 1995, Smith learned of problems U-Haul had with parking brakes due to an exposé on “Inside Edition.” As a result, Smith served supplemental discovery on U-Haul in June 1995.

U-Haul filed a motion to quash, claiming discovery expired seven months earlier and the subpoena issued by Smith for a witness’ deposition contained a notice to produce documents but did not allow U-Haul the requisite 30 days under OCGA § 9-11-34 (b) (2) in which to produce them. The trial court dismissed Smith’s motions to compel and extend discovery after determining that U-Haul was entitled to summary judgment on all claims.

The standard of review of a trial court’s ruling on discovery disputes is abuse of discretion. Fisher v. Bd. of Commrs. &c., 200 Ga. App. 353, 354 (408 SE2d 120) (1991). “The trial courts have broad discretion to determine what is and what is not discoverable, and this court will not interfere with those decisions absent a clear abuse.” (Citations omitted.) Apple Investment Properties v. Watts, 220 Ga. App. 226, 227 (469 SE2d 356) (1996). After reviewing the record, we find the trial court did not abuse its discretion in denying Smith’s discovery motions.

2. Smith claims U-Haul’s negligence was responsible for his accident, contending U-Haul’s inspection and maintenance procedures are inadequate and relying on the doctrine of res ipsa loquitur. The trial court correctly determined that res ipsa loquitur is inapplicable in this case.

“The elements of the doctrine are: (1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” (Citations and punctuation omitted.) Bridgestone Firestone v. Green, 198 Ga. App. 858, 861 (403 SE2d 442) (1991). The trial court found that, even assuming the truck was in the exclusive control of the defendants, Smith could not satisfy the other two requirements. There were issues of contributory negligence in that Smith left the truck running, in neutral, on an incline, put his foot on the rear bumper and tried to raise the door. The trial court also correctly found that this was not an injury which does not occur in the absence of some negligence. This Court has held that brakes fail for many reasons, not necessarily because of someone’s negligence. Bennett v. Bridgestone/Firestone, 208 Ga. App. 782, 784 (431 SE2d 748) (1993).

Smith also argues U-Haul was negligent in inspecting and repairing the brake. But, he points to no evidence in the record in support of this contention.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiffs case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Citations and punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

As discussed above, Smith has presented no evidence in support of his claim that U-Haul’s negligence caused the parking brake to fail. Therefore, the trial court did not err in granting summary judgment to U-Haul on this issue.

3. Smith also claims the trial court erred in granting U-Haul summary judgment on his claim for breach of the rental agreement. Again, he does not cite to any evidence in the record in support of this claim. In any event, the trial court correctly concluded that since Smith could not show negligence on U-Haul’s part or point to some defect in the brake system, his breach of contract claim must also fail.

4. Smith also claims an affidavit submitted by defendant in support of its motion for summary judgment contains inadmissible hearsay. The affidavit in question was that of John Bricks, Marketing Company President of U-Haul.

In the affidavit, Brick described the different maintenance and inspection procedures U-Haul uses and stated that the truck in question underwent a Preventive Maintenance Inspection on August 24, 1992, and again on December 30, 1992, and there were no problems with the parking brake. The affidavit also states that U-Haul sent a representative to inspect the vehicle after the accident and found no problem with the parking brake. Along with the affidavit, U-Haul submitted copies of its maintenance programs and safety certification procedures. It also submitted copies of repairs made at the August 24 and December 30 inspections.

Smith complains that four of the paragraphs of the affidavit are inadmissible hearsay. Smith does not state specifically how this enumeration of error was preserved for appeal, and there is nothing in the record to show that any objection to the affidavit was made in the trial court. “Objections to affidavits such as these will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on motions for summary judgment.” Chapman v. McClelland, 248 Ga. 725, 726 (2) (286 SE2d 290) (1982). See also Neese v. Britt Home Furnishings, 222 Ga. App. 292 (474 SE2d 44) (1996). In addition, pretermitting the issue of whether these paragraphs are hearsay, in light of our holding above that there is no evidence to support Smith’s claim of negligence against U-Haul, the trial court did not need to consider these portions of the affidavit in order to reach the correct conclusion.

Decided March 11,1997

Gibson, Deal & Fletcher, James B. Deal, for appellant.

William P. Tinkler, Jr., for appellee.

Judgment affirmed.

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