text:
    A91A0412.
    JOHNSON et al. v. RAATZ et al.
    (407 SE2d 489)
   Sognier, Chief Judge.

Robert and Brenda Johnson brought suit against Aaron and Patricia Raatz on a promissory note executed pursuant to an agreement for the sale of a business, and the defendants asserted a counterclaim for the balance owed to the lien creditor of a van conveyed to the defendants as part of the sale. On cross motions for summary judgment, the trial court denied the plaintiffs’ motion and granted the defendants’ motion. The plaintiffs appeal.

The material facts are not in dispute. The parties entered into a “Contract for Sale and Purchase” (the “agreement”) dated April 14, 1989, whereby appellants, the sole shareholders of the stock of East Metro Executive, Inc. (the “company”), as “Seller,” agreed to transfer to appellees, as “Buyer,” “free from all liabilities and encumbrances, [the company] including the goodwill . . . , and all other indicia of possession, furniture, equipment, merchandise and all other assets of the [company] . . . free and clear of any debts, mortgages or security interests except as stated herein.” The contract provided for the purchase price of $32,000 to be paid in eight installments, with $6,000 due on April 14, 1989, the closing date, $6,000 due on July 14, 1989, and the remaining payments due on July 14th of the six succeeding years. The contract, which was prepared by appellee Aaron Raatz, also provided, inter alia, that “Seller warr[a]nts that there are no known or undisclosed liabilities of [the company] and [agrees] to hold the Buyer harmless from any known or undisclosed liabilities” (paragraph 12); that “[a]ny secured party holding a lien on any asset to be sold hereunder shall consent to Buyer assuming such lien and indebtedness within 10 business days” (paragraph 14); and that “Seller shall convey title to said assets by Bill of Sale Absolute giving good and marketable title” (paragraph 17).

A separate document dated May 3,1989 and entitled “Inventory” was prepared pursuant to paragraph 4 of the agreement, which required an inventory of the items to be transferred to appellees in the sale. This document lists as an asset of the company a “1986 Plymouth Voyager Van” with a value of $10,000. It is undisputed that appellant Robert Johnson, not the company, had title to the van, and . that it was subject to a security interest held by Chrysler Credit Corporation. The parties agree that this van was to be included in the assets sold to appellees. Johnson testified by affidavit that prior to the April 14 closing date, he disclosed to appellees the existence of the security interest in the van. He averred that during the negotiation period he visited several automobile dealerships with appellee Aaron Raatz because Raatz was interested in trading the van for a newer model, and that a trade-in proposal prepared for Raatz by one dealer reflected that a balance of $8,027 was owed to Chrysler Credit on the 1986 van.

On April 25, 1989, Robert Johnson executed a bill of sale providing that “in consideration of [the] payoff value to Chrysler Credit ($8003),” he transferred title to the 1986 van to Aaron Raatz “free from all [e]ncumbrances.” Johnson averred that as part of this transaction he gave to appellees the coupon book used to make monthly payments to Chrysler Credit. After execution of the agreement, appellees began paying to Chrysler Credit the monthly payments of $333.07 due on the van. When their July 1989 promissory note payment came due, appellees deducted from it the amount they had paid to date on the van. Appellants then filed suit to recover the amounts past due on the note, and appellees counterclaimed, asserting breach of the covenants obligating appellants to transfer the company assets free and clear of all encumbrances. The trial court held that appellees were entitled to the amount they had paid on the van obligation to date plus the amount of the remaining balance less the amounts they had withheld from the note payments.

In three enumerations of error, appellants contend that the trial court erred in its construction of the agreement and by finding that appellants breached the agreement so as to entitle appellees to recover on their setoff counterclaim. Appellants first contend a fact question remains whether the parties intended the van sale to be governed by the agreement or whether they made a separate contract for that transaction. Appellants base their arguments on the fact that on its face the agreement, which purported to transfer to appellees the assets of the company, does not appear to apply to the transfer of the van because the vehicle was owned by appellant Robert Johnson, not by the company. Nonetheless, a basic rule of contract construction is that we must “ ‘look to the substantial purpose which must be supposed to have influenced the minds of the parties, rather than at the details of making such purpose effectual.’ [Cit.]” Friedman v. Friedman, 259 Ga. 530, 532-533 (3) (384 SE2d 641) (1989). “If the intention of the parties as of the time of executing the agreement [is] clear, it should be enforced, even though the parties disagree as to its meaning as of the time of the litigation.” Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975). Contrary to appellants’ arguments before this court, we find nothing in the record to suggest that either the parties’ arrangement to transfer title of the van from Robert Johnson to Aaron Raatz or the bill of sale executed on April 25, 1989 constituted a separate transaction. Instead, the evidence clearly establishes that at the time the agreement was executed, the parties intended the van be included in the sale of the corporate assets, and that to effect this intention the bill of sale was executed as required by paragraph 17 of the agreement. Thus, given that the parties’ intention at the time of execution of the agreement is clear, we will enforce that intention and interpret the agreement accordingly. OCGA § 13-2-3; see Paul, supra.

We disagree with appellants’ contention that the applicable provisions of the agreement are ambiguous and must be construed against appellees, as we find them to be plain, unambiguous, and capable of only one reasonable interpretation, and consequently, no construction is required or even permitted. Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84) (1981). Applying the rules of contract interpretation that require us to look to the agreement as a whole and to give contract terms their usual signification, OCGA § 13-2-2 (2), (4), we find that the provisions applicable to the transfer of company assets obligated appellants to transfer those assets to appellees free of any encumbrances except for liabilities expressly defined in the agreement. The Chrysler Credit lien was not listed in the agreement as an exception to this requirement, and there is no evidence appellees assumed this obligation pursuant to the procedure outlined in paragraph 14. Moreover, paragraph 12 of the agreement required appellants to indemnify appellees from all liabilities, “known or unknown.” Therefore, contrary to appellants’ contentions, appellees’ apparent prior knowledge of the lien is irrelevant. Additionally, appellants were further obligated to provide appellees with bills of sale transferring good and marketable title to company assets. Thus, appellants were required to transfer title to the van free of the lien held by Chrysler Credit.

Appellants did execute a bill of sale in compliance with this requirement, for the bill of sale transferring title to the van to appellees provided that title was conveyed free from all encumbrances. However, the undisputed evidence shows that appellants did not remove the Chrysler Credit lien. Accordingly, we agree with the trial court’s conclusion that appellants breached their obligation to provide clear title to the van, and that appellees were entitled to judgment as a matter of law.

Although this issue was not expressly raised by either party, we are compelled to recognize that when a defendant claims a right to a deduction from the plaintiff’s damages for breach of a cross obligation arising from the same contract, the proper remedy is recoupment, not setoff. OCGA §§ 13-7-2; 13-7-3; see Byrom v. Ringe, 83 Ga. App. 234, 241 (63 SE2d 235) (1951). In such a circumstance, “[i]f the damages of the defendant exceed those of the plaintiff, the defendant shall be awarded the amount of such excess from the plaintiff.” OCGA § 13-7-13. The trial court obviously applied this principle in the order granting summary judgment to appellees, because the order provided that “[appellees] are entitled to a judgment for the total amount [they] have paid to Chrysler Credit and the total amount of pay-off still due to Chrysler Credit on the van, less the contract payments [appellees] have withheld from [appellants].” However, the record reveals that the judgment, which the trial court directed appellees’ counsel to prepare, was not entered in accordance with this ruling. The judgment awarded appellees the entire amount outstanding on the lien at closing plus court costs without subtracting the outstanding arrearage on the note. Accordingly, we affirm the order on the parties’ summary judgment motions, but vacate the judgment entered thereon and remand the case for entry of judgment in accordance with this opinion.

Decided July 2, 1991.

Dawkins & Serio, Salvatore J. Serio, Donna M. Swilley, for appellants.

Lance & Associates, D. Suzanne Moon, for appellees.

Judgment affirmed in part and vacated and case remanded in part.

McMurray, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A0906.
    MANOUS v. THE STATE.
    (407 SE2d 779)
   Birdsong, Presiding Judge.

Laurance M. Manous was convicted of theft by taking, in that, “being in lawful possession of $1,123,900 in money, a value exceeding $500 and the property of Eugenia Jenkins, [he] did unlawfully appropriate said property with intention of depriving said owner of said property.” He appeals. Held:

1. Laurance Manous contends the evidence is insufficient to support the verdict. Manous met the victim (who was 80 years old at the time of trial) and her elderly sisters when they all lived in a high rise apartment building. The elderly sisters were wealthy; their family had owned property and they possessed large amounts of stock in their brothers’ chain of supermarkets. Manous, who is a pianist and singer, greatly impressed the sisters, who first heard him play when he had left his apartment door open and invited them in to listen. He gave concerts for the ladies, including one in honor of the victim Miss Eugenia Jenkins at the Ritz-Carlton Hotel, and he escorted them shopping and to dinner at restaurants such as Mary Macs and the Varsity. Over 13 years Manous befriended the victim, ultimately orchestrating the migration of himself and Miss Jenkins and her sisters and another elderly lady to neighboring apartments in another building in 1983. Manous thereafter gained Miss Eugenia Jenkins’ complete devotion and dependence and acquired complete control of her affairs. The evidence shows Miss Jenkins’ mental state began to deteriorate seriously in about 1984. Manous moved out of the building not very long after he moved in, which evidently caused Miss Jenkins distress and embarrassment. He bought a house in Alpharetta for $159,000 and a 1986 Lincoln; to obtain a $50,000 equity loan he listed as his assets the house unencumbered (appraised at $205,000 in 1989), and more than $200,000 in personal property, including $55,000 in musical instruments. By 1986 Manous had become co-signatory for Miss Jenkins’ banking affairs. Between September 1986 and June 1987 Miss Jenkins signed checks made out to Larry Manous in the amounts of $500,000, $50,000, and $20,000; she signed a check for a certificate of deposit purchase for $150,000; and Larry Manous signed checks on her account: a check for $50,000 for purchase of a certificate of deposit, and three checks for “Prudential stock purchase” in the amounts of $45,000, $50,000, and $46,000. In August 1986, a typed letter signed by Miss Jenkins was apparently sent to her brother, praising Manous effusively and stating a desire that he be compensated for sacrificing his own goals and marvelous career opportunity in order to give her his unselfish and loving care and to attend to her personal and business needs; to this end, the letter requested that Manous receive Miss Jenkins’ stock after her death. Shortly thereafter, Miss Jenkins’ brother sold Miss Jenkins’ stock, yielding approximately $700,000 for her.

Miss Jenkins’ niece, who had been caring for several elderly aunts and her own mother in addition to her own husband, their four children and her business, had been reluctant to interfere in her Aunt Eugenia’s friendships as she would not wish her children to do that to her, and she believed Manous had been taking care of her Aunt Eugenia. However, the niece became concerned about Miss Jenkins’ state of mind when, at the funeral of one of Miss Jenkins’ sisters, Miss Jenkins asked whose funeral this was. The niece became more concerned when she discovered Miss Jenkins was not being cared for as she had believed; while Miss Jenkins’ sisters, under the care of her niece, had round-the-clock nursing care or attendants, in Manous’ care Miss Jenkins would apparently be left alone for entire days without proper food or personal care, and even with trash accumulated and many light bulbs burned out in her apartment; she had no social life to speak of and was left alone at Christmas.

On investigation, the niece discovered that Miss Jenkins had $3.90 in her bank account; all her certificates of deposit were gone and all her stock had been cashed in.

Appellant Larry Manous contends the verdict is not supported because Miss Jenkins stated at trial that she wanted him to have “as much money as he wanted for whatever he wanted it for because he was ‘deserving,’ ”; and because he did take care of her and paid all of her bills. At trial, Miss Jenkins could not remember where she presently lived and appeared often confused. While expressing her devotion to Manous and her desire to give him what he needed, Miss Jenkins stated the following when she was shown the check for $500,000 made out to Larry Manous and signed by her: “$500,000. My word. That was in ‘86. . . . This check in my hand now, I don’t remember any what a big sum like that. . . . Now, to frankly tell you the truth, I do not remember [whether I meant to give Larry $500,000]. I let Larry handle my business, and I did not think about it. I did not worry about it. I didn’t care what he did with the money. He looked after my interest and I depended on him. I had nobody else to depend on. I am the youngest girl in my family, and I am old now, and Larry was just so kind to me. I wanted him to know how much I appreciated it. And like I said, we were just so close for a long time. And I don’t remember all this kind of rigmarole. ... I guess that is a lot of money, but like I said, I didn’t worry about money. ... I wanted Larry to enjoy the money, and I was enjoying the money. ... He didn’t need to keep [some of that money to provide for me.] See, I have got my pension and my Social Security. So I think I will get along.” She testified she did not know she had had such large sums of money as was shown to her at trial. As to whether she intended to give Larry all her money, Miss Jenkins said, “Well, no, I didn’t. I haven’t given him all of my money, have I? Haven’t I got something? ...”

The credibility of witnesses and weight of evidence are purely jury questions. When the jury has rendered a guilty verdict, the defendant’s presumption of innocence no longer obtains; on appeal, we do not weigh the evidence or determine credibility of the witnesses, but only determine whether the evidence supports that verdict. Construing all the evidence in favor of the jury’s verdict upon the evidence in this case, we find the evidence amply supports the verdict of guilty to the offense of theft by taking in this case. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); see Ingram v. State, 192 Ga. App. 196, 198 (384 SE2d 262).

2. In two enumerations, appellant contends the trial court erred in denying a continuance for the State’s failure to provide to appellant a timely list of witnesses pursuant to OCGA § 17-7-110 and to comply timely with his Brady motion. However, except to contend generally that he could have prepared his defense differently if these errors had not occurred, appellant fails to suggest any manner in which he was harmed. The burden is on the party asserting error to prove not only error but harm; “ ‘ “[t]his court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.” ’ ” Dill v. State, 222 Ga. 793, 794 (152 SE2d 741); see Whitehead v. Cogar, 180 Ga. App. 812, 813 (350 SE2d 821).

3. Appellant contends the trial court erred in letting in evidence of a letter Manous wrote to a spiritual advisor/psychic, inasmuch as his communication to this spiritual advisor was a privileged communication under OCGA § 24-9-22. This Code section makes privileged any communication “made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to any Protestant minister of the Gospel, any priest of the Roman Catholic faith, any priest of the Greek Orthodox Catholic faith, any Jewish rabbi, or to any Christian or Jewish minister, by whatever name called.” We do not find the “spiritual advisor” or “psychic” to be included in these terms, under the evidence in this case. We find no error on this account. In any event, the trial court later instructed the jury to disregard any reference made to this letter.

Decided July 2, 1991.

Dennis R. Scheib, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Grover W. Hudgins, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0965.
    SCOTT et al. v. ALLSTATE INSURANCE COMPANY.
    (407 SE2d 492)
   Birdsong, Presiding Judge.

Linda and Gary Scott appeal from the grant of summary judgment to Allstate Insurance Company, their uninsured motorist insurance carrier, on their John Doe uninsured motorist claim. The Scotts contend summary judgment was granted because of an overly technical interpretation of OCGA § 33-7-11 (b) (2).

The record shows three cars were driving on a five-lane interstate highway that is elevated above ground level. The first car, Mr. Green’s, struck a cardboard box in his lane of travel. The box blocked Mr. Green’s vision and he pulled to the left and slowed down. Mrs. Scott, driving the car immediately behind Mr. Green’s, saw Mr. Green’s car strike the box and slow down, and she was able to stop without hitting Mr. Green. Unfortunately, Mrs. Greenway, the driver of the third car, could not stop without hitting Mrs. Scott’s car.

Subsequently, the Scotts filed suit against Mrs. Greenway and a John Doe uninsured motorist, the driver of a truck. The allegation against Mrs. Greenway was based upon her negligence in not stopping and the allegation against John Doe is based upon Mrs. Scott’s assertion that she saw the box, which Mr. Green struck, fly oíf a truck that kept going.

The record shows neither Mr. Green nor Mrs. Greenway saw the box fly off the truck as Mrs. Scott alleges. Mr. Green’s affidavit states he first saw the box in the middle of his lane and he had no idea from whence it came. Mrs. Greenway’s deposition testimony states that the first time she saw the box it was on Mr. Green’s car on the side of the road.

Decided July 2, 1991.

Calhoun & Associates, Michael A. Lewanski, for appellants.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, for appellee.

The trial court granted Allstate’s motion for summary judgment because the Scotts cannot prevail on their uninsured motorist claim against John Doe since there was no physical contact between Mrs. Scott’s vehicle and the John Doe truck, and because Mrs. Scott’s description of how the collision took place was not corroborated by an eyewitness to the occurrence. See OCGA § 33-7-11 (b) (2). The Scotts contend this was error because all the drivers involved stated that the cardboard box blocked Mr. Green’s vision causing him to slow down and by Mrs. Greenway’s discovery responses stating the John Doe vehicle negligently allowed the box to fall off and create a dangerous condition. Held:

Although the Scotts correctly assert that Mrs. Greenway alleged that the box came from a John Doe vehicle, Mrs. Greenway’s deposition testimony showed that she did not see the box fly off a truck. Further, Mr. Green is of no help to the Scotts’ claims. Accordingly, neither Mr. Green nor Mrs. Greenway is an eyewitness who can corroborate Mrs. Scott’s description of the occurrence. Rogers v. Schuman-Mann Supply Co., 197 Ga. App. 59, 60 (397 SE2d 463). In Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898), our Supreme Court affirmed a literal reading of OCGA § 33-7-11 (b) (2) that only an eyewitness can corroborate the claimant’s description of the occurrence. An eyewitness, however, is required (Rogers v. Schuman-Mann Supply Co., supra), and this court’s decision in Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 50 (397 SE2d 466), did not eliminate that requirement.

Accordingly, as no eyewitness corroborated Mrs. Scott’s description of the occurrence, the Scotts’ reliance on corroboration of their claim by circumstantial evidence is misplaced. The trial court did not err by granting summary judgment to Allstate.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0988.
    NICHOLS v. THE STATE.
    (407 SE2d 493)
   Birdsong, Presiding Judge.

Lorene Nichols appeals her conviction for the sale of cocaine in violation of the Georgia Controlled Substances Act. She alleges that the evidence is not sufficient to identify her as the perpetrator of the crime alleged, and that the trial court erred by denying two motions for a mistrial and by failing to give curative instructions after the denial of one of the motions for a mistrial. Held:

1. Nichols contends the evidence introduced was not sufficient to prove beyond a reasonable doubt that she committed the crime for which she was convicted, and she focuses on whether an undercover police officer should have been permitted to identify her in court. That issue, however, is not the issue enumerated as error.

Further, it is not our function to reconsider the evidence concerning Nichols’ identification and independently decide whether the identification was sufficient. Moreover, Nichols made no motion to exclude the identification and did not object to the testimony concerning the identification. Therefore, we will not consider the issue as it is raised for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698); Cooper v. State, 173 Ga. App. 254, 256 (325 SE2d 877).

Instead, our function, addressing the error enumerated, is to consider only whether the evidence is sufficient to sustain the finding of guilty (Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131)), and in doing so, we view the evidence in a light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849). In this case, an undercover police officer testified that she bought the cocaine from Nichols and that is sufficient to authorize the jury’s verdict. Powers v. State, 150 Ga. App. 25 (256 SE2d 637). Accordingly, the transcript “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that [Nichols] was guilty of [violating the Georgia Controlled Substances Act] as charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (363 SE2d 257).

2. Nichols also alleges that the trial court erred by denying her motion for a mistrial after the undercover officer testified that she had purchased drugs from another person at Nichols’ trailer. The record shows that on cross-examination by Nichols’ counsel on which visit to Nichols’ trailer the cocaine was purchased (“You don’t recall if this was the first or thé last or the middle or when it was?”) the officer responded: “It wasn’t the last and it wasn’t the first. I had made two previous buys from her trailer from another individual.” The record shows that Nichols promptly moved for a mistrial and, after reviewing the transcript and finding a close question, the trial court denied Nichols’ motion and instructed the jury that they should “totally and completely wipe that [comment] from your mind and totally and completely disregard it.”

This enumeration of error asserts that it was error to deny Nichols’ motion for a mistrial because the witness’ answer placed her character in question. The witness’ answer was during Nichols’ cross-examination, and this apparently “inadvertent comment in the course of cross-examination . . . does not rise to the level of misconduct condemned in Boyd v. State, 146 Ga. App. 359 (246 SE2d 396).” Martin v. State, 193 Ga. App. 581, 584 (388 SE2d 420). We do not find from the context of the answer that it was made to intentionally prejudice the jury against Nichols. “ ‘Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer. Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984). Furthermore, the decision . . . whether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508) (1981).’ Buxton v. State, 253 Ga. 137 (3) (317 SE2d 538).” Martin v. State, supra.

Nichols, however, has not argued that the trial court abused its discretion and the record before us does not establish that the trial court did so. Although not directly responsive to the question posed, the officer’s response was directed toward answering the question and was not unresponsive. Further, the transcript shows that the trial court carefully considered the issue and took the corrective action it deemed warranted. Under the circumstances, we find no abuse of discretion, and hence, no error.

3. Nichols also asserts that the trial court erred by denying her motion for a mistrial after another police officer allegedly placed her character in issue by testifying that Nichols was identified using a “police department picture.” Although Nichols, based upon Ogles v. State, 238 Ga. 716, 717 (235 SE2d 384) and Woodard v. State, 234 Ga. 901, 902 (218 SE2d 629), concedes that this testimony falls short of placing Nichols’ character in issue, she argues that the cumulative effect of this testimony with the testimony discussed in Division 2 is to constitute reversible error. Although we agree that the police department photograph testimony was insufficient to place her character in issue (see Harris v. State, 191 Ga. App. 399 (381 SE2d 602)), we must reject her cumulative error argument. “This state does not follow a cumulative error rule of prejudice. Any error of record must stand or fall upon its own merits and is not aided or aggravated by the accumulative effect of other claims of error.” (Citation and punctuation omitted.) Dyous v. State, 195 Ga. App. 99, 100 (392 SE2d 730). Therefore, the trial court did not abuse its discretion in denying this motion for a mistrial.

4. Nichols’ final enumeration of error contends the trial court erred by failing to give corrective instructions after having denied the motion for mistrial discussed in Division 3. There was no error. As the reference to a police department photograph did not place Nichols’ character in issue, no corrective instructions were required.

Judgment affirmed.

Pope and Cooper, JJ., concur.

Decided July 2, 1991.

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, A. Douglas Newsome, Assistant District Attorney, for appellee.


text:
    A91A1026.
    DOBBS v. THE STATE.
    (407 SE2d 782)
   Birdsong, Presiding Judge.

Benjamin Reece Dobbs appeals his judgment of conviction of aggravated assault, the denial of his motion for new trial, and the sentence. Appellant was convicted of aggravated assault upon John Johnson with a pistol and a baseball bat used as a deadly weapon. His sole enumeration of error is that the trial court erred in granting the State’s motion in limine excluding evidence of the victim’s first offender conviction. Held:

“A witness in a criminal or civil trial may be impeached by evidence that he has been convicted of a felony or a crime of moral turpitude.” Witcher v. Pender, 260 Ga. 248 (392 SE2d 6); compare Ford v. State, 92 Ga. 459 (17 SE 667). “In balancing the rights of a first offender to be protected against having the stigma of a criminal record as opposed to the rights of a defendant in a criminal case to impeach the testimony of the witnesses against him, the latter prevails.” (Emphasis supplied.) Favors v. State, 234 Ga. 80, 87 (3) (214 SE2d 645). In a criminal case, “where the testimony of a witness is sought to be impeached by conviction of a crime, the assumption is that such person may be untrustworthy as a witness and that the jury should be informed of this possible lack of trustworthiness in reaching their verdict. Such possible lack of trustworthiness is shown by a verdict of guilty, or plea of guilty, whether or not a formal conviction has been entered.” Favors, supra.

However, the record reveals that, although the trial court ruled that a first offender conviction could not be used as a previous felony conviction and that neither side could use it as “original evidence,” the trial court deferred its ruling as to the use of alleged first offender conviction “for the purpose of impeachment” or “rebuttal” testimony. At no later point in the trial did appellant attempt to introduce the first offender conviction in evidence or to seek to obtain an express ruling from the trial court as to the use of a first offender conviction for purposes of impeaching the State’s primary witness, the alleged victim, John Johnson. The trial court made no error in this case; it never ruled at all on the issue of Johnson’s impeachment, for appellant never subsequently called it into issue after the trial court’s ruling was deferred. See Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757).

Decided July 2, 1991.

Cowen & Cowen, Martin L. Cowen III, for appellant.

Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellee.

Additionally, neither the State in presenting its motion in limine nor appellant’s counsel in response thereto made a statement on the record identifying the nature of the alleged first offender conviction, that is, whether it involved a conviction for a felony or crime of moral turpitude. In fact, the trial tactics of the appellant included an assertion to the court that “we should at least be allowed to introduce a conviction, if the man has one. We may not even introduce that.” (Emphasis supplied.) This statement is to some degree misleading, regarding both the actual existence of a first offender conviction and of appellant’s intent to introduce the same. “ ‘[O]ne cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.’ ” West v. Nodvin, 196 Ga. App. 825, 829 (3e) (397 SE2d 567); see Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251).

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Beasley, Judge.

text:
    A91A0068.
    BOARD OF NATURAL RESOURCES et al. v. WALKER COUNTY et al.
    (407 SE2d 436)
   Beasley, Judge.

This case involves the Georgia Hazardous Waste Management Act, OCGA § 12-8-60 et seq.

We granted discretionary appeal to the Director of the Environmental Protection Division of the State Department of Natural Resources (EPD), the State Board of Natural Resources (Board), and Redox, Inc., from an order of the superior court which reversed two orders and a final decision of the administrative law judge (ALJ) affirming EPD’s issuance of a permit to Redox for the construction and operation of a hazardous waste treatment and storage facility in unincorporated Walker County.

Following issuance of the permit, Walker County and its commissioner petitioned for a hearing and review before an ALJ appointed by the Board pursuant to OCGA § 12-2-2 (c) (2). The petition raised in excess of 90 questions. It alleged, inter alia, that EPD’s actions in issuing the permit were arbitrary, capricious, an abuse of discretion or an unwarranted exercise of discretion because:

(A) The waste management process described in the permit application did not fully and completely comply with applicable law and did not provide for the protection of the general health and welfare of the county’s citizens.

(B) The described waste analysis plan did not fully comply with applicable law and did not provide for protection of the citizens’ general health and welfare.

(C) The described procedures to prevent hazards did not fully and completely comply with the law and did not provide for protection of the citizens’ general health and welfare.

(D) The water supply in the area of the proposed facility would be unreasonably endangered.

(E) The application and permit did not adequately address the problem of air pollution.

(F) Adequate water with sufficient pressure was not available at the proposed site to combat a fire of any magnitude.

(G) The application and permit failed to require any type of automatic fire fighting system.

(H) There was a failure to consider the accident potential of transporting the chemicals prior to treatment.

(I) There was a failure of adequate procedure for controlling mixtures or combinations of wastes that have a delayed reaction time.

(J) There was no adequate contingency plan to cover temporary or permanent overloads of hazardous wastes.

(K) There was a failure to require procedures to control disposal of waste residues from testing and rejected shipments. The petition also alleged that the notice of the public hearing for permitting the facility, as required by OCGA § 12-8-66 (h), was insufficient inasmuch as there was not 30 days notice prior to the date of the public hearing.

EPD and the county filed cross-motions for a summary determination on the question of adequacy of notice.

On August 22, 1989, the ALJ issued an order in favor of EPD. He rejected the county’s contention that OCGA § 1-3-1 (d) (3) applied to computing time under OCGA § 12-8-66 (h) so as to render the notice insufficient.

EPD also moved for partial summary determination on 79 legal issues raised by the county’s petition. On October 26, 1989, the ALJ issued a lengthy and detailed order granting EPD a favorable determination on 71 of the issues and denying summary decision on the other eight.

As a result of the summary determinations granted to EPD, the scope of the eventual administrative hearing was limited to 12 legal questions involving the remaining nine areas:

(1) Adequacy of the water supply for fire fighting.

(2) Construction and operation of the facility in terms of preventing or controlling fires, explosions, or unplanned releases.

(3) Prevention of accidental ignition or reaction of wastes.

(4) Arrangements with local fire, police, and emergency authorities.

(5) The schedule for inspections of equipment at the facility.

(6) Containment of spills or leaks of hazardous materials and of any contaminated water from fire fighting or rain.

(7) Treatment and handling of the drums used to transport or store hazardous wastes.

(8) Provisions for sampling wastes upon arrival.

(9) The potential for groundwater contamination.

On February 23, 1990, the ALJ issued a 34-page final decision, addressing in detail the remaining legal challenges to the permit and affirming its issuance. The county petitioned the superior court for judicial review. The court determined:

(1) The ALJ erred in his August 22, 1989, order because there was insufficient public notice in that the days were to be computed in accordance with OCGA § 1-3-1 (d).

(2) The ALJ erred in his October 26, 1989, order when he granted EPD a favorable summary determination with respect to 23 issues because in each instance the ALJ incorrectly construed the provisions of 40 CFR § 270.32 (b) (2). As to each of these issues the county submitted affidavits which created factual issues as to whether the matter raised should have been required as a condition to issuance of the permit or specified as a term of the permit in order to protect human health and the environment.

(3) In the October 26 order, the ALJ erroneously determined as a matter of law that the provisions of 40 CFR Part 264, Subpart J, governing the use of tanks at hazardous waste facilities, were not applicable to the Redox facility.

(4) The Redox application was insufficient because the contingency plan and emergency procedures described in the application did not describe arrangements agreed to by local police departments, fire departments, hospitals, contractors, and state and local emergency services as required by 40 CFR §§ 270.14; 264.52 (c); and 264.37.

(5) Review of the ALJ’s three decisions showed that substantial rights of the county and its commissioner had been prejudiced because the ALJ’s determinations were in violation of statutory provisions and affected by legal error.

1. As to notice, OCGA § 12-8-66 (h) as then in effect provided that in regard to the required public hearing, “[t]he date, time, location, and purpose of such public hearing shall be advertised in the legal organ of the county in which the facility is proposed at least 30 days in advance of the date set for the hearing.”

EPD first published notice of the public hearing in the legal organ for Walker County on August 19, 1988. The public hearing was held on Monday, September 19, 1988, 31 calendar days following the date of publication of the notice.

OCGA § 1-3-1 (d) (3) is a rule of statutory construction relating to computation of time which “is prescribed for the exercise of any privilege or the discharge of any duty, . . .” Even if it is applicable, notice was not untimely. Inasmuch as there was no action to be taken on the thirtieth day, i.e., Sunday, September 18, it made no difference that the thirtieth day fell on a Sunday. See Merritt v. Gate City Nat. Bank, 100 Ga. 147, 148 (1) (27 SE 979) (1897); see also Heard v. Phillips, 101 Ga. 691, 692 (1) (31 SE 216) (1897).

The superior court’s order reversing the ALJ’s order of August 22, 1989, on the sufficiency of the notice for want of one day is error.

2. Appellants contend that the superior court erred in reversing the ALJ’s grant of summary determination on 14 legal issues raised in the county’s petition by erroneously interpreting 40 CFR § 270.32 (b) (2) to give EPD unlimited authority and discretion to include within a hazardous waste facility permit any and all terms and conditions which EPD’s Director deemed “necessary to protect human health and the environment,” in the face of a specific and applicable regulation governing a particular aspect of the project.

40 CFR § 270.32 (b) provides in relevant part: “(1) Each RCRA [Resource Conservation and Recovery Act, 42 USC § 6901 et seq.] permit shall include permit conditions necessary to achieve compliance with the Act and regulations, including each of the applicable requirements specified in Parts 264 and 266 through 268 of this chapter. In satisfying this provision, the Administrator may incorporate applicable requirements of Parts 264 and 266 through 268 of this chapter directly into the permit or establish other permit conditions that are based on these parts.

“(2) Each permit issued under section 3005 of this act shall contain terms and conditions as the Administrator or State Director determines necessary to protect human health and the environment.”

The county maintained and the superior court agreed that the ALJ had been too restrictive in his interpretation of the applicability of the cited regulation, and that EPD had the authority under the broad language of subsection (b) (2) to include within the permit various additional terms and conditions even if those terms and conditions were not covered by or in conflict with the applicable regulation.

The ALJ was correct in his analysis and rejection of the county’s position. As the ALJ stated in his order, “[s]uch a reading would eliminate the standards for hazardous waste facility permits established by the Board” when the permit terms and conditions sought to be added were outside the specific applicable standard. The additional permit terms and conditions sought by the county either disregarded or contradicted in part or in whole a specific regulatory requirement found in 40 CFR Part 264. Adoption of the proposed additions, even if the ALJ found them to be “necessary to protect human health and the environment” would have substantially eliminated or circumvented the mandates of the explicit and governing Board regulations, which tracked the CFR. While the broad language of the subsection arguably gives EPD’s Director the authority to add complementary terms and conditions not in conflict with the established standards, it does not confer on the Director the right to supplant the standards. Moreover, subsection (b) (2) must be read in conjunction with the entire regulatory scheme. Subsection (b) (1) of the regulation expressly provides for the establishment of other permit conditions based on the stated standards. See 40 CFR § 270.32 (b) (1), supra. Therefore, proposed terms not in some manner addressed by or based on the applicable Board standard are not permissible for consideration as additional permit terms.

The superior court erred in reversing the ALJ’s determinations in his order of October 26, 1989, based on its interpretation of the language of 40 CFR § 270.32 (b) (2). Whether or not the affidavits submitted by the county raised material questions of fact about the proposed additional terms and conditions was irrelevant because the regulation did not confer on EPD’s Director the authority to add the permit terms proposed by the county. That decision was the Board’s, not the Director’s.

3. Appellants contend that the superior court erred in reversing the ALJ’s determination that the provisions of 40 CFR Part 264, Sub-part J, governing the use of tanks at hazardous waste facilities, was not applicable to the Redox facility inasmuch as the county failed to introduce any admissible evidence to counter the evidence submitted by appellants on summary determination motion.

In its petition before the ALJ, the county contended that the proposed facility would utilize “tanks” so that 40 CFR, Subpart J requirements applied. Appellants’ position was that the subpart did not govern because the facility would utilize “containers” rather than “tanks.”

40 CFR § 260.10 defines “tank” as “a stationary device, designed to contain an accumulation of hazardous waste which is constructed primarily of non-earthen materials (e.g., wood, concrete, steel, plastic) which provide structural support.” It defines “container” as “any portable device in which a material is stored, transported, treated, disposed of, or otherwise handled.” A critical distinction between the two is portability.

In support of its motion for summary determination, appellants submitted the affidavit of an environmental specialist with the EPD who had technical and supervisory responsibility for the proposed facility. The affidavit stated in part that “[tjhe mixing chambers and other treatment and storage chambers at the Redox facility are all movable or portable in some fashion.” He also gave direct testimony in the application procedure that a factor in minimization of hazard at the Redox facility was the use of containers as opposed to tanks in the waste treatment process. He explained that the attributes of containers provided advantages over tanks in some aspects of waste handling not immediately seen; their smaller size limited the volume of a spill in the event of structural failure; containers were stronger structurally than tanks on a relative basis; tanks generally were used to contain waste of greater magnitude than typical containers; one other comparable facility in Georgia had two tanks, each of 20,000 gallon capacity, used in a stabilization treatment process otherwise nearly identical to that proposed by Redox; the containers Redox proposed for use in its stabilization and absorbent admixture operations were much smaller, limited to about 650 gallons capacity; the portable nature of containers allowed removal of leaking containers to controlled areas, where mitigation could better be accomplished; the absence of provision for uncontrolled automatic filling limited the possibility of unattended overfill of containers.

In opposition, the county submitted the affidavit of its own expert who had reviewed the relevant permit material. This affidavit stated, “[t]he mixing chamber is a tank as that term is defined in 40 CFR § 260.10.”

The ALJ determined that the statement, which addressed solely one vessel at the facility and which constituted the county’s only evidentiary response, was conclusory and that such response was insufficient to establish an issue of material fact. This led to a favorable ruling for appellants on 13 county-raised issues related to permit application deficiencies for noncompliance with the standards for tanks.

First, the ALJ did not determine that the county’s evidence was “inadmissible” but rather that it was insufficient to withstand appellants’ showing and thereby raise a material issue of disputed fact.

Second, assuming that the subject statement in the county’s affidavit was indeed “conclusory,” i.e., not based on a factual foundation such as whether the chamber was portable or not, that alone would not render it inadmissible but would affect its weight. See Woods v. Andersen, 145 Ga. App. 492, 494 (4) (243 SE2d 748) (1978) [physical precedent]. However, “[c]onclusory allegations by way of an affidavit, unsupported by specific allegations of fact, will not be sufficient to avoid summary judgment. [Cit.]” Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 879 (1b) (354 SE2d 204) (1987); see also Collins v. West American Ins. Co., 186 Ga. App. 851, 852 (3) (368 SE2d 772) (1988).

Lastly, even if the affidavit statement about one vessel in the entire facility were not conclusory, it was insufficient, in light of appellants’ showing, to raise a material issue of disputed fact regarding the type of vessels to be used throughout the facility.

The superior court’s reversal of the ALJ’s order of October 26, 1989 with respect to the applicability of 40 CFR, Subpart J is error.

4. Appellants contend that the superior court erroneously applied, or ignored, the standards for review of administrative decisions found in OCGA § 50-13-19 when it rejected the ALJ’s conclusion that the permit met the requirements of 40 CFR § 264.37 (a) (l)-(4). The superior court concluded that the application was insufficient in the described contingency plan and emergency procedures because of noncompliance with 40 CFR § 270.14 and 40 CFR § 264.52 (c) in addition to 40 CFR § 264.37 (a) (l)-(4). See statement of facts, supra.

The three regulations must be read in conjunction with each other and in the context of a facility yet to be built. 40 CFR § 264.37 (a) (l)-(4) provides that the owner or operator of the hazardous waste facility specify attempts to make arrangements with local authorities, i.e., police, fire, medical personnel, etc., for emergency situations. 40 CFR §§ 264.52 (c) and 270.14 (b) (7) require that a contingency plan, i.e., plan for dealing with an emergency situation, describe arrangements agreed to by local police and fire departments, hospitals, contractors, and state and local emergency response teams to coordinate emergency services.

As the ALJ stated in his final decision, the permit application reflected that Redox had made efforts to coordinate emergency services. These included formal and informal meetings with local fire officials and contacts with county officials and local medical facilities to include their telephone numbers and addresses in the contingency plan, which required coordination with local fire, police, and medical emergency personnel. The permit was thus in compliance with 40 CFR § 264.37 (a) (l)-(4). The facility was not yet in existence, so formal coordination agreements were not yet appropriate or required. This accounts for the absence of a description of them in the application.

Decided June 19, 1991

Reconsideration denied July 3, 1991

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison W. Kohler, Robert S. Bomar, Senior Assistant Attorneys General, Weinstein, Rosenthal & Tobin, Michael S. Rosenthal, for appellants.

Furthermore, the subject regulations have the obvious purpose of ensuring that a permit will not issue, and hence a hazardous waste facility will not be built, unless there is a plan in place to deal with emergency situations. As the ALJ noted in the final determination, the permit was expressly conditioned upon arrangements with local officials as required by 40 CFR § 264.37. The purpose of the regulations was fulfilled.

The superior court erroneously reversed the ALJ’s final determination on the basis that the application was deficient because “agreed to” arrangements were not described.

5. Appellants contend that the court failed to confine its review to the record and substituted its judgment for that of the ALJ on questions of fact as demonstrated by the court’s finding, without elaboration, that the ALJ’s determinations were in violation of statutory provisions and affected by error of law.

Appellants correctly observe that the reviewing lower court may not substitute its judgment as to the weight of evidence on questions of fact and may reverse or modify the agency decision only if substantial rights of the appealing party have been prejudiced because the administrative determination was in violation of constitutional or statutory provisions; in excess of the agency’s statutory authority; made upon unlawful procedure; affected by other error of law; clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. OCGA § 50-13-19 (h). See Bentley v. Chastain, 242 Ga. 348 (249 SE2d 38) (1978) for a discussion of the judicial review of administrative decisions. See also Georgia Dept. &c. Protection Div. v. Union Timber Corp., 258 Ga. 873, 877 (6) (375 SE2d 856) (1989).

The massive record in this case does not show that the ALJ’s determinations were in violation of any of the cited federal and state statutory provisions or affected by legal error. See Divisions 1, 2, 3, and 4, supra. Nor does it demonstrate that the administrative rulings in any of the manners claimed prejudiced substantial rights of the county and its commissioner. There was no basis shown for reversal of the challenged decisions of the administrative law judge under OCGA § 50-13-19 (h).

Judgment reversed.

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

Watson & Dana, Dennis D. Watson, Joseph F. Dana, for appellees.

       Effective March 30, 1989, OCGA § 12-8-66 (h) was amended to require 45 days notice of the public hearing.

       OCGA § 12-2-2 (c) (2) requires that the hearing before the administrative law judge be conducted in accordance with Chapter 13 of Title 50, the Georgia Administrative Procedure Act, and the rules and regulations adopted by the Board pursuant to it. While the Act does not expressly provide for summary judgment, see OCGA § 9-11-56, or a summary determination procedure, it does provide that in contested cases, the rules of evidence as applied in the trial of civil nonjury cases in the superior courts is to be followed. See OCGA § 50-13-15 (1).


text:
    A91A0370.
    GRANDISON v. THE STATE.
    (408 SE2d 135)
   Beasley, Judge.

Appellant was indicted for trafficking in cocaine. OCGA § 16-13-31. He appeared at arraignment without counsel and pled not guilty. Following arraignment, appellant filed a motion to suppress evidence. The State filed a motion to dismiss pursuant to USCR 31.1, which requires motions to be filed at or before arraignment “unless time therefor is extended by the judge in writing prior to trial.” Counsel stated that he did not appear at arraignment because he had a conflict and had filed a notice of conflict and served the assistant district attorney. See USCR 17.1. The trial court denied the motion to dismiss and granted the motion to suppress because the State presented no evidence.

In State v. Grandison, 192 Ga. App. 473 (385 SE2d 139) (1989), we reversed, noting that appellant had not enumerated as error the holding of arraignment as scheduled, and holding that under USCR 31.1, the court could either dismiss the tardy motion or entertain a request for a written order of extension. It could not simply proceed with a hearing on the involved motion, for which hearing the State did not subpoena its witnesses due to its reliance on a defective nature of the motion. Following remand, appellant filed a request for leave to file an out-of-time motion to suppress. The trial court denied this motion after hearing, and an application for interlocutory appeal was denied on March 6, 1990.

Appellant was subsequently convicted of cocaine trafficking following a bench trial. He appeals, enumerating error upon the trial court’s conducting his arraignment in the absence of counsel. He argues that this violated USCR 17; his right to procedural due process, Stone v. Powell, 428 U. S. 465 (96 SC 3037, 49 LE2d 1067) (1976); and his Sixth Amendment right to the assistance of counsel at a critical stage of the criminal proceeding. See State v. Simmons, 260 Ga. 92, 93 (390 SE2d 43) (1990); but compare Dixon v. Hopper, 237 Ga. 811 (1) (229 SE2d 656) (1976). He also enumerates as error the trial court’s denial of his request for leave to file the untimely motion to suppress,' as an abuse of discretion.

1. Before the trial court, appellant challenged the holding of the arraignment in counsel’s absence on the ground that he was not given notice of the “date, time, and place of arraignment,” as required by USCR 30.1.

Decided June 25, 1991

Reconsideration denied July 2, 1991

Herbert Shafer, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

However, appellant stipulated that notice of arraignment had been mailed to him and the bondsman pursuant to USCR 30.1. The trial court found that he did have proper notice, and this is fully supported.

Consequently, this case is distinguishable from State v. Schwall, 193 Ga. App. 694 (388 SE2d 705) (1989), wherein defense counsel was not given proper notice.

2. Appellant’s claim concerning the violation of USCR 17 is without merit.

Under USCR 17.1, as it existed at the time in question, an attorney who had conflicting court appearances was to give “prompt written notice of the conflict to opposing counsel, to the clerk of each court and to the judge before whom each action is set for hearing.” Under USCR 17.2, the judges or clerks were to resolve the conflict and give counsel “prompt written notice ... of the manner in which the conflicts have been resolved.”

The certificate of service accompanying the notice of conflict states the notice was served on the prosecuting attorneys the day before the arraignment, but there is no indication whatsoever that the court or clerk was aware of it at or before arraignment. The notice of conflict was not filed with the clerk until the day after the arraignment. It therefore was not in compliance with Rule 17.1, and the holding of the arraignment in counsel’s absence was not error.

3. The operation of the Uniform Superior Court Rules did not deny appellant an “opportunity for full and fair litigation of [the] Fourth Amendment claim.” Stone v. Powell, 428 U. S. at 482, supra. See Hubbard v. Jeffes, 653 F2d 99, 103 (2) (3rd Cir. 1981); compare Boyd v. Mintz, 631 F2d 247 (3rd Cir. 1980).

4. Appellant fails to show an abuse of the trial court’s discretion in denying the request for leave to file the untimely motion to suppress. Hall v. State, 181 Ga. App. 92 (1) (351 SE2d 236) (1986).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A91A0362.
    HALL v. BUSSEY et al.
    (408 SE2d 430)
   McMurray, Presiding Judge.

Harold and Annie Ealy Bussey (plaintiffs) brought an action against Mattie L. Hall (defendant) and alleged that defendant is operating a day care center and that the day care center is a nuisance. The case was tried before a jury and the jury found defendant’s activities to be a nuisance. The trial court entered an order permanently enjoining defendant from operating the day care center and defendant filed a timely appeal. However, defendant did not file a trial transcript until over five months after the filing of the notice of appeal. Plaintiffs moved to dismiss the appeal because the trial transcript was not timely filed and because defendant did not obtain an extension of time for filing a trial transcript. The trial court conducted a hearing on the motion to dismiss and later dismissed defendant’s appeal, finding the delay in filing a trial transcript “was . . . unreasonable and inexcusable and was . . . caused by the defendant.” Defendant appealed to the Supreme Court of Georgia, which transferred this case to this Court. Held:

“OCGA § 5-6-42 provides that a transcript must be filed within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5-6-39. OCGA § 5-6-48 provides that the trial court may, after notice and hearing, order an appeal dismissed for a party’s failure to timely file a transcript if the delay was 1) unreasonable, 2) inexcusable, and 3) caused by such party.” Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576). “In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court’s finding absent an abuse of discretion. Johnson v. Clements, 135 Ga. App. 495 (218 SE2d 109) (1975).” Department of Human Resources v. Pattilo, 196 Ga. App. 778, 779 (397 SE2d 47). However, the “trial court has discretion to dismiss an appeal for failure to timely file a transcript only if 1) the delay in filing was unreasonable; 2) the failure to timely file was inexcusable in that it was caused by some act of the party responsible for filing the transcript.” Baker v. Southern R. Co., 260 Ga. 115, 116, supra.

In the case sub judice, a transcript of the hearing on the motion to dismiss defendant’s appeal does not appear in the record. However, the trial court’s order shows that defendant’s appeal was dismissed because of the lack of specific explanation for the over five-month delay in filing a trial transcript. More specifically, the trial court stated that defendant’s only excuse for the delay “is that the transcript was promptly ordered, reasonable inquiry as to the status of its preparation was made and the transcript was paid when the bill for the same was submitted.” The trial court also cited defendant’s failure to obtain an extension of time to file a trial transcript and the consequence of defendant’s failure to promptly secure a trial transcript, i.e., the “docketing” of the appeal was delayed and “the dally conduct allowed defendant five (5) months or more to continue activity she was enjoined from carrying out pursuant to a jury verdict.” Under these circumstances, we cannot say the trial court abused its discretion in finding that defendant’s conduct caused the unreasonable and inexcusable delay in filing the trial transcript. There was no error in the dismissal of defendant’s appeal. See Department of Human Resources v. Pattilo, 196 Ga. App. 778, 779, supra.

Decided June 17, 1991

Reconsideration denied July 3, 1991.

Benjamin Allen, for appellant.

Evita A. Paschall, for appellees.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0505.
    TALBERT v. ALLSTATE INSURANCE COMPANY.
    (408 SE2d 125)
   Beasley, Judge.

Plaintiff Aaron Talbert appeals the grant of summary judgment in favor of defendant Allstate. Talbert sought recovery of damages for abusive litigation under OCGA § 51-7-80 et seq. Talbert had brought an action for damages for personal injuries arising out of an automobile collision against Betty Jean Foskey, who was insured by Allstate.

Foskey answered the allegations of the complaint by denying negligence and subsequently amended it to contend that parties other than she were negligent and the cause of injury to Talbert. During the course of pleading, Talbert wrote Foskey’s attorney that the defense of lack of negligence was without foundation in law or fact; that this notice was given in compliance with OCGA § 51-7-84 (a) in order to furnish “you” with an opportunity to voluntarily withdraw the defense. A second letter two days later pointed out that an adjuster for Allstate advised Foskey’s counsel to zealously contest Talbert’s claim that Foskey was negligent; that as a result Foskey went along with “whatever you and Allstate decided to do”; that the denial of negligence was made for a wrongful purpose and was without substantial justification. A third letter was sent to Foskey’s attorney a week after the second letter, again advising that it was a notification under OCGA § 51-7-84 (a) and that the attribution of negligence to third persons was without foundation in law or fact; that “you” are given notice that Talbert intended to assert a claim for abusive litigation.

During the course of discovery Talbert had moved for summary judgment in the underlying suit on the issue of Foskey’s negligence, but the motion was denied. At trial the court granted Talbert’s motion for directed verdict, finding that Foskey was negligent as a matter of law.

After entry of judgment for Talbert against Foskey, Talbert sued to recover damages for Allstate asserting a defense without substantial justification. Allstate answered and moved for summary judgment, contending that it was entitled to prevail as a matter of law. After a hearing, without stating a basis for its ruling, the trial court granted Allstate’s motion. Talbert contends that the reasons advanced by Allstate for granting its motion for summary judgment are not sustainable.

1. The first basis is that an abusive litigation claim against Allstate does not lie under OCGA § 51-7-80 et seq. because Allstate was not a party to the original tort action. Allstate predicates its argument on the fact that a Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), claim is confined to “any party.” Id. at 96.

The unambiguous language of the Code section eliminates this assertion. OCGA § 51-7-81 provides: “Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) with malice; and (2) [w]ithout substantial justification.” “Person” includes a corporation or any entity with capacity to sue or be sued. OCGA § 51-7-80 (6). “[Wjithout substantial justification” refers to a defense which is frivolous, groundless in fact or in law, or vexatious. OCGA § 51-7-80 (7).

Considering the entire tenor of Article 5 of Title 51, Chapter 7, it is evident that the law encompasses the type of activity that Allstate engaged in during the original action. It took an active part in the continuation of the proceedings and thus could be named as defendant in an abusive litigation claim.

2. The second basis for granting summary judgment was that the notice given was not sufficient under OCGA § 51-7-84 (1) (a). That Code section requires as a condition precedent to the maintenance of an abusive litigation claim that the party against whom the claim is to be asserted be given written notice by registered or certified mail or other means evidencing receipt by the “addressee.” The stated purpose is to give the prospective defendant to the abusive litigation claim an opportunity to voluntarily withdraw his defense or position.

All three letters, which Talbert contends constituted notice, were addressed to the attorney for Foskey. Only the middle one, dated July 11, 1989, referred to Allstate and then specifically to its claims adjuster, who was described as “acting as an agent of’ Allstate. The letter termed the denial of negligence as being for “a wrongful purpose and without substantial justification,” but never mentioned that it was given as notice under OCGA § 51-7-84 (a).

Decided June 19, 1991

Reconsideration denied July 3, 1991

Gilbert & Montlick, Fred A. Gilbert, Lissner, Killian, Cunningham & Zacker, Robert P. Killian, for appellant.

Barrow, Sims, Morrow & Lee, Jordan D. Morrow, for appellee.

These new code provisions create an exclusive remedy which replaces the antecedent actions. OCGA § 51-7-85. A paramount consideration of OCGA § 51-7-84 (a) is that the notice be given specifically to the “addressee.” Here, Allstate as one who took “an active part” but was not an actual party, was entitled to be particularly specified in the letter as the one against whom Talbert would seek damages if the position of lack of negligence were not withdrawn or dismissed. The law is strictly construed in order to accomplish its overriding purpose to give a prospective defendant the chance to change position and avoid liability, OCGA § 51-7-82. See Heard v. Neighbor Newspapers, 259 Ga. 458, 459 (5) (383 SE2d 553) (1989); National Indem. Co. v. Tatum, 193 Ga. App. 698, 700 (388 SE2d 896) (1989).

Talbert failed to specify Allstate as the one against whom Talbert would seek relief unless the defenses of no negligence or negligence on the part of others were withdrawn or disavowed. As a result, the letters did not meet the prerequisite of notice under the Code section.

Judgment affirmed.

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


author: Birdsong, Presiding Judge. Pope, Judge,

text:
    A91A0587.
    CANDLER GENERAL HOSPITAL, INC. v. LAMB et al.
    (408 SE2d 416)
   Birdsong, Presiding Judge.

We granted interlocutory appeal to the defendant Candler General Hospital, Inc., to review the trial court’s denial of defendant’s motion to dismiss, made on grounds that this is a professional malpractice case and plaintiff’s failed to file a sufficient expert affidavit pursuant to OCGA § 9-11-9.1.

Plaintiffs sued for damage caused to plaintiff Laverne Lamb’s eye during cataract surgery performed at defendant Candler Hospital. They alleged the damage was caused because contrary to the recommendations and warnings of the manufacturer of the “CooperVision” phaco-emulsifier used in the cataract surgery, hospital personnel negligently attached to the machine surgical supplies made by a company other than the manufacturer of CooperVision. Plaintiffs contend the CooperVision machine uses a high-speed vibration to dissolve cataracts, that the device overheated because of a failure of an irrigation system attached to the CooperVision machine, and that hospital personnel were negligent in using this irrigation system, made by Staar Surgical Company, with the “CooperVision” phaco-emulsifier, contrary to the warnings of the “CooperVision” manufacturer.

Plaintiffs also filed suit against the manufacturers of the CooperVision machine and against Staar Surgical Company. As to the hospital, they alleged in their original complaint that the hospital violated the standard of care applicable to hospitals of comparable size and location as well as to hospitals generally. They attached the affidavit of Douglas Allen, a registered professional engineer and former vice president for CooperVision. Mr. Allen described his familiarity with the CooperVision machine used in this case, and said: “I am familiar with the hazards of an effect on system performance by the use with the said [machine] of disposable supplies other than those specified by CooperVision for this unit. Use of disposables other than those of CooperVision may affect system performance and create potential hazards. . . . The instructions provided by CooperVision to the purchaser of every [surgical supply] kit for use with the said [machine] provided in part that the use of disposables other than those of CooperVision may affect system performance and create potential hazards. . . . One of the aforesaid effects on system performance or potential hazards includes interruption of the fluid flow to and from the eye during surgery.” (Emphasis supplied.)

The trial court denied Candler Hospital’s motion to dismiss, saying: “The case sub judice is not a medical malpractice case and defendant Candler’s alleged liability does not turn on a ‘medical question.’ A jury would be capable of resolving these issues without the help of a medical expert’s testimony. Therefore, OCGA § 9-11-9.1 (a) is not applicable here.” Held:

The trial court erred in ruling that a jury would be capable of resolving the issues in this case without expert evidence and that this is not a professional malpractice case and an expert affidavit is not required under OCGA § 9-11-9.1. Moreover, the affidavit submitted by plaintiffs with their complaint is insufficient to comply with the Code section as an expert affidavit.

This is not a simple negligence case and is to be distinguished from cases like Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107 (354 SE2d 872) and Self v. Executive Committee &c., 245 Ga. 548 (266 SE2d 168). Plaintiffs’ entire cause of action depends upon a determination by the jury that defendant’s employees committed a negligent act which caused Mrs. Lamb’s injury. It will not be sufficient for plaintiffs to show, either in a simple negligence context or in the context of professional malpractice, that use with a CooperVision phaco-emulsifier of surgical supplies other than supplies made by CooperVision to be used with that machine, “may affect system performance and create potential hazards,” or even “[may] interrupt the fluid flow to and from the eye during surgery.” In order for plaintiffs to sustain a verdict, there would have to be evidence that the use of surgical supplies other than those made by CooperVision for this machine did “exist” so as to cause a particular hazard. This might conceivably be proved at trial without expert medical testimony but there is nothing in the affidavit or the pleadings to suggest that it could be so proved. Moreover, there will have to be evidence that the particular hazard which was brought about by use of improper supplies caused interruption of fluid flow to Mrs. Lamb’s eye. If plaintiffs can prove this by any evidence other than expert medical evidence, they have not suggested it to us.

The purpose of OCGA § 9-11-9.1 (a) is to prevent “frivolous or unsuitable actions,” i.e., actions where plaintiff sets out to prove negligence but is unable to do so without expert evidence; if plaintiff cannot establish negligence and causation without expert testimony, the case is generally a professional malpractice action within the meaning of § 9-11-9.1. See Razete v. Preferred Research, 197 Ga. App. 69, 70 (397 SE2d 489). To this end, OCGA § 9-11-9.1 (a) provides: “In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Emphasis supplied.)

At best, plaintiffs have merely submitted an affidavit suggesting that defendant’s employees committed an act that may cause interruption of the flow of fluid to the eye during surgery; they have not even shown a “factual basis” for a claim the supplies used in this instance “may” have interrupted the flow of fluid to the eye during surgery, much less than they did cause this hazard. We note also that they have not suggested any “factual basis for a claim” that this circumstance caused the injury to Mrs. Lamb’s eye.

The trial court erred in denying appellant’s motion to dismiss.

Judgment reversed. Cooper, J., concurs.

Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I agree that the trial court erred in concluding that this is not a professional negligence case. The acts or omissions at issue in this case concern the decision to outfit a complex surgical instrument with disposable parts not recommended by the manufacturer. The preparation of complex surgical instruments for a patient’s surgery is certainly a medical function and not merely a clerical or administrative task. “[Plaintiffs’] allegations are not in the nature of merely ‘performing administrative or clerical acts requiring no medical judgment’ [Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (354 SE2d 872) (1987)] as [plaintiffs contend], but call into question the making of professional medical judgments. . . . Since the instant case, unlike Candler Gen. Hosp., involved the questioning of expert medical, nursing, and administrative judgments, the trial court” erred in finding the case was not a professional negligence case. Chafin v. Wesley Homes, 186 Ga. App. 403, 403-404 (1) (367 SE2d 236) (1988).

I also agree that the trial court erred in denying defendant’s motion to dismiss because the affidavit filed by plaintiffs in support of their complaint is insufficient to meet the requirements of OCGA § 9-11-9.1.1 do not agree, however, with the analysis of the majority opinion.

If the majority opinion stated that the filing affidavit is insufficient because it fails to set forth at least one negligent act or omission of the defendant, then I would concur. The affidavit merely states that the use of disposable supplies for the surgical machine in question other than those specified by the manufacturer violates the manufacturer’s recommended procedures. It does not state that the use of unspecified supplies constitutes negligence. The majority opinion, however, holds the affidavit is insufficient to meet the requirements of OCGA § 9-11-9.1 because, inter alia, it does not assert that the defendant’s action (use of unspecified supplies) caused plaintiffs’ injuries.

Causation is an issue for jury determination but need not be addressed in a filing affidavit. “The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.” 0-1 Doctors &c. Co. v. Moore, 190 Ga. App. 286, 288 (378 SE2d 708) (1989). All that is required of the filing affidavit pursuant to OCGA § 9-11-9.1 is that it set forth the factual basis for at least one negligent act or omission of the defendant and that it be made by “an expert competent to testify” to the issue of defendant’s alleged negligence. The affidavit in this case was made by a former corporate officer of the manufacturer of the surgical machine which was allegedly misused by defendant hospital. In it, the affiant states he is familiar with the machine in question and the hazards and effects on the performance of the machine by the use of disposable supplies other than those specified by the manufacturer. It does not set forth, however, that the affiant has any knowledge of or familiarity with the appropriate standard of care for hospitals generally. The affidavit fails to set forth a negligent act or omission because the affiant did not demonstrate that he was qualified to state whether, by using unspecified disposable parts of the machine, the hospital failed to meet the appropriate standard of care. Thus, in my opinion, the reason plaintiffs’ filing affidavit is insufficient is because it fails to show that the affiant is qualified to testify to the standard of care for hospitals generally. See Piedmont Hosp. v. Milton, 189 Ga. App. 563 (377 SE2d 198) (1988).

Decided May 15, 1991

Reconsideration denied July 3, 1991

Frank W. Seiler, Bouhan, Williams & Levy, Roy E. Paul, Peter D. Muller, for appellant.

Jones, Boykin & Associates, Noble L. Boykin, Jr., Charles W. Snyder, Painter, Ratterree, Connolly & Bart, Paul W. Painter, Clark & Clark, H. Sol Clark, for appellees.

Because the complaint alleges an act of negligence against the hospital which, by its nature, required medical judgment, the complaint is one for professional negligence. Because the affidavit filed with the complaint was legally insufficient, the complaint should have been dismissed.


author: Sognier, Chief Judge.

text:
    A91A0612.
    COLE v. THE STATE.
    (408 SE2d 438)
   Sognier, Chief Judge.

Lurlie Cole was indicted on 16 counts of felony and misdemeanor theft by conversion. She was convicted of one felony count and five misdemeanor counts, and she appeals from the judgment and sentence thereon.

1. Appellant enumerates the general grounds as to Count II of the indictment regarding the conversion of the funds of Carrollton Medical Supply, Inc. (CMS) to her personal use in the purchase of a metal desk. Evidence was adduced that from April 1988 until October 1989, when she was fired, appellant was the office manager of CMS and had the authority to write checks on CMS’s bank account for amounts up to $1,000. The State introduced an invoice from Riddle Office Products billed to CMS’s account, authenticated by CMS’s current office manager, Marilyn Manus, reflecting the June 22, 1989 sale of a metal desk. John Goza, a Riddle employee, testified he placed the desk on CMS’s account on appellant’s instruction and delivered the desk himself the next day to appellant’s home. He testified that appellant told him she was doing work at home and needed the desk there. Appellant testified that she had the desk delivered to her home because there was no place to put it at CMS’s office at the time and the sale price would have expired before CMS had relocated to its new office.

However, Tina Williams, a CMS employee from March to September 1989, testified that neither appellant nor any other employee at CMS got a new desk in the time she was there, including the period before and after the business relocated in late August. Manus, who has worked continuously at CMS since July 1989, also testified that no new desk has been delivered to CMS while she has worked there, including the period after appellant was fired. Although appellant places great emphasis upon the testimony of Goza about what desks he observed at CMS shortly before trial, it appears that while he saw there a desk of the same type as the one he delivered to appellant, due to the lack of identification numbers he could not say it was the same desk.

We find the evidence sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of theft by conversion of CMS funds for the purchase of a desk for herself under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Exley v. State, 180 Ga. App. 821-823 (1) (350 SE2d 829) (1986).

2. Appellant contends the evidence was not sufficient to authorize her convictions on three counts regarding three CMS checks she issued to a fictitious employee called “Jan Pate.” The checks all bore the endorsement of “Jan Pate”; appellant had co-endorsed one check. Several CMS employees working at CMS during the time frame in which appellant wrote the checks testified that no Jan Pate ever worked for CMS and that the business was small enough (five employees) that a new employee would have been noticed. Witnesses also testified that CMS used a rug cleaning service and that payment for that service was made out of the petty cash account. An acquaintance of appellant’s, named Jan Pate, testified that she had applied to CMS for a job, but that she was not hired and never received any checks from CMS. Pate also testified she had lived in the Carrollton area for 24 years and had heard of no other woman in the area with her same name. Appellant testified that she made the checks out to another Jan Pate, whom appellant claimed had cleaned carpets for CMS.

“ Tt is the function of the jury to determine the credibility of the witnesses, including that of the defendant. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. (Cit.)’ [Cit.]” Rayburn v. State, 194 Ga. App. 676 (1) (391 SE2d 780) (1990). Given the evidence adduced regarding how CMS operates and the number of its employees, plus the testimony of the other CMS employees contradicting appellant’s testimony that a Jan Pate had worked for or cleaned carpets for CMS, we do not agree with appellant that the State was required to prove that it was impossible for the checks to have been written to another Jan Pate before the jury could have found she was guilty beyond a reasonable doubt under the standard set forth in Jackson, supra. We find that a rational trier of fact could reasonably have found proof of appellant’s guilt beyond a reasonable doubt. Id.; Exley, supra.

3. In regard to the felony theft by conversion count, appellant asserts that the State failed to prove that she acted with criminal intent when she issued a check for $538 on CMS’s account to pay Universal Discount Furniture (UDF) for various pieces of furniture for her own home. The State presented direct evidence that appellant wrote a check on CMS’s account to UDF for $538 to pay on her personal account there for furniture she had purchased for her home. The State also presented evidence that UDF had initiated legal proceedings to collect on the account and that appellant had been served in that action approximately a month before UDF received the $538 check. A partner in CMS at the time of this transaction testified that appellant was not authorized to use CMS funds for personal matters.

Appellant admitted writing the check but testified that because she had personally paid for items needed by CMS while the business was relocating, rather than repaying herself directly by issuing a check in her own name for these sums, she reimbursed herself indirectly by paying UDF for the furniture with CMS funds. She testified that she saved the receipts for the purchases and had attached the receipts to UDF’s paid invoice file at CMS. Appellant called the CMS employee who responded to her subpoena for the UDF file, and he identified the sole item in that file, a record of payment from CMS to UDF signed by appellant for $538 for “store fixtures.”

“Intent ‘is a question of fact which is seldom capable of proof by direct evidence. (Cits.)’ [Cit.] ‘A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ OCGA § 16-2-6.” Worth v. State, 179 Ga. App. 207, 208 (1) (346 SE2d 82) (1986). “ ‘In seeking the motives of human conduct, inferences and deductions may properly be considered where they flow naturally from the facts proved.’ [Cit.]” Tucker v. State, 182 Ga. App. 625 (356 SE2d 559) (1987). Although, as appellant argues, the jury could have believed that she had merely used her discretion as manager of the store by deciding to reimburse herself by writing the check to UDF, a proposition for which she cites this court to Hill v. State, 198 Ga. App. 1 (401 SE2d 48) (1990), the evidence did not compel that conclusion. Rather, the evidence of appellant’s pressing financial need at the time she wrote the check to UDF, the absence of any receipts to explain the “store fixtures” notation on the CMS record of payment to UDF, and other evidence at trial regarding how employees made purchases for items needed at CMS, authorized a finding that appellant issued the $538 check to UDF with the intent to convert CMS’s funds to her own use. Accordingly, the trial court did not err by denying appellant’s motion for directed verdict on this count.

Decided June 20, 1991

Reconsideration denied July 3, 1991

Word & Flinn, Gerald P. Word, John W. Kilgo, for appellant.

William G. Hamrick, Jr., District Attorney, George F. Hutchin son III, Assistant District Attorney, for appellee.

4. Appellant contends the trial court erred by failing to charge the jury on the principles of mistake of fact and justification. As to mistake of fact, the transcript reveals that appellant’s counsel withdrew the requested charge on that principle and made no objection to the trial court’s failure to charge the matter. Appellant thus waived any error. See Gaines v. State, 177 Ga. App. 795, 799 (341 SE2d 252) (1986); Thomas v. State, 234 Ga. 615, 618 (216 SE2d 859) (1975). The fact that mistake of fact was not appellant’s sole defense does not render the language in Adcock v. State, 260 Ga. 302 (392 SE2d 886) (1990), disapproving a statement in Adcock v. State, 194 Ga. App. 627, 629 (4) (391 SE2d 438) (1990), applicable here, as it appears the charge in question therein was requested and the failure to give it was properly challenged. Id.

Appellant’s defense of justification was based on her assertion that she acted upon an honest claim of right, and the trial court properly charged the jury regarding that affirmative defense as set forth in OCGA § 16-8-10 (2). The trial court also instructed the jury in connection with that charge that the State had the burden to prove to the jury beyond a reasonable doubt that the affirmative defense was untrue. The jury instruction adequately covered the principles set forth in appellant’s requested charge on justification, and it was not error to fail to give the exact charge requested by appellant. See Pope v. State, 193 Ga. App. 384 (388 SE2d 25) (1989).

5. Appellant raised no objection when the prosecutor, in his argument to the court during the sentencing process, referenced appellant’s prior criminal history of writing bad checks. “ ‘Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. (Cit.)’ [Cit.]” Hight v. State, 195 Ga. App. 727, 730 (6) (394 SE2d 636) (1990).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0945.
    WARSHAM v. THE STATE.
    (408 SE2d 122)
   McMurray, Presiding Judge.

Defendant War sham appeals his conviction of felony theft by shoplifting. Held:

1. Defendant’s first enumeration of error contends that the evidence was insufficient to support the verdict. The State’s evidence shows that defendant was followed through a department store by a store detective who observed defendant conceal merchandise from three separate departments of the store in a white plastic bag. Defendant was then observed returning to each department of the store from which he had taken merchandise and soliciting a cash refund for the merchandise by representing that he had purchased it earlier. This evidence was sufficient to authorize any rational trier of fact to find proof beyond a reasonable doubt of defendant’s guilt of theft by shoplifting. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Williams v. State, 198 Ga. App. 214 (1) (400 SE2d 638).

2. Defendant’s second enumeration of error contends that he was denied his right to confront the witnesses against him and was denied his right to a thorough and sifting cross-examination of the witnesses by the refusal of the State to produce the allegedly stolen items. The record is unclear as to whether the allegedly stolen items had been returned to the shelves of the department store or retained by store security in a locker. In their place, a photograph of the items was introduced. Defendant’s only objection at trial was predicated on the best evidence rule and the issues now raised on appeal were not raised at trial. These issues which defendant seeks to raise for the first time on appeal are waived due to the failure to assert them below. Norman v. State, 197 Ga. App. 333, 335-337 (4) (398 SE2d 395); Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757).

3. Defendant’s final enumeration of error contends that the determination that the offense was a felony was based on inadmissible hearsay. The store detective testified as to the price shown on the price tags attached to the merchandise recovered from defendant. This was sufficient proof of the value of the merchandise (OCGA § 16-8-14 (c)), and the store detective’s testimony as to what she saw on the price tag was not hearsay. This enumeration is without merit.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided June 18, 1991

Reconsideration denied July 3, 1991.

Steven Reighard, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Assistant District Attorneys, for appellee.


text:
    A91A1003.
    BEAVERS v. MOORE et al.
    (408 SE2d 124)
   McMurray, Presiding Judge.

This Court granted an interlocutory appeal in this slip and fall case to determine whether the trial court erred in denying defendant landlord’s motion for summary judgment.

Patricia Moore and her husband Hugh Moore brought this slip and fall case against Albert J. Patron, d/b/a Unclaimed Freight, and Edward E. Beavers, a/k/a E. E. Beavers, d/b/a Beavers Realty & Insurance Company. Mrs. Moore sought damages for injuries which she suffered when she fell in a furniture store; Mr. Moore sought damages for loss of consortium.

The premises were composed of two adjoining offices. Beavers was the landlord of the premises. Patron was the tenant. Before Patron occupied the premises, the offices remained separate. To accommodate Patron’s business, however, Beavers joined the two offices together. The doorway connecting the two former offices was not level. In fact, there was a six-inch difference in floor levels.

Pursuant to the lease between Beavers and Patron, Patron retained exclusive possession and control of the premises. Patron placed warning signs on either side of the doorway between the two former offices. He also marked the threshold between the two former offices with yellow tape. Nevertheless, Mrs. Moore did not notice the “step down” and as she made her way between the two former offices, she fell.

Beavers moved for summary judgment on two theories. He contended he cannot be held liable because (1) he did not maintain control of the premises and (2) plaintiff failed to observe an obvious condition. The trial court denied Beavers’ motion but certified its ruling for immediate review and this Court granted an interlocutory appeal. Held:

We conclude that defendant landlord cannot be deemed liable to plaintiffs as a matter of law. Beavers cannot be held liable simply because he owned the premises since he did not actually control the premises. Daniel v. Ga. Power Co., 146 Ga. App. 596, 600 (5) (247 SE2d 139). Moreover, it cannot be said that Beavers was negligent in joining the two offices with different floor levels. “ ‘[A] variation of level in buildings, amounting to only a few inches (4 to 6 inches shown in adjudicated cases), constitutes a common method of construction, and does not of itself render it defective or negligent. (Citations.)’ ” Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47, 48 (183 SE2d 7). Thus, whether or not Mrs. Moore exercised reasonable care for her own safety, Beavers cannot be deemed liable. The trial court should have granted Beavers’ motion for summary judgment.

Decided June 18, 1991

Reconsideration denied July 3, 1991.

Downey, Cleveland, Parker & Williams, Y. Kevin Williams, M. Allen McDuffie, for appellant.

Bert W. Cohen, Hollingsworth & Associates, Jason T. Schneider, for appellees.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1149.
    McGREGOR et al. v. STACHEL et al.
    (408 SE2d 118)
   Beasley, Judge.

McGregor’s complaint and amended complaint, on behalf of shareholders of defendant Southern Medical Systems, Inc., was dismissed on motion by defendant Southern Medical. Remaining for disposition in the trial court were the counterclaims of Southern Medical and defendant Ahern. The trial court entered no order under OCGA § 9-11-54 (b) and McGregor sought to appeal to this court without obtaining the grant of an interlocutory appeal under OCGA § 5-6-34 (b).

1. The trial court determined that McGregor could not commence the shareholder derivative action because the letter which purportedly contained the demand upon the corporation to take suitable action was not sufficient. See OCGA § 14-2-742. McGregor contends that because the trial court considered that letter which was attached as an exhibit to the amended complaint as well as the letter in response by Ahern, the president of Southern Medical, the proceeding was converted into a summary judgment proceeding under OCGA § 9-11-12 (c).

It is well established that summary judgment is appropriate only to matters relating to the merits of a proceeding and does not apply to matters in abatement. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974). OCGA § 14-2-742 provides that a shareholder may not commence a derivative proceeding until a written demand is made and 90 days have expired after that demand. It has nothing to do with the merits of the shareholder’s claim but only with a procedural prerequisite for asserting such a claim. See Metric Steel Co. v. BLI Constr. Co., 147 Ga. App. 380 (249 SE2d 121) (1978); Jones v. Doe, 143 Ga. App. 451, 452 (238 SE2d 555) (1977).

The matter on appeal involves the grant of a motion to dismiss predicated upon the failure to follow that procedure and was not convertible to a summary proceeding. Jones v. City of Austell, 166 Ga. App. 808, 810 (305 SE2d 653) (1983); Rainwater v. Vazquez, 133 Ga. App. 173 (210 SE2d 380) (1974). See Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223) (1988). As such, the general appellate process is applicable. Warshaw Properties v. Lackey, 170 Ga. App. 101, 102 (316 SE2d 482) (1984).

Under these circumstances, appeal from the order dismissing McGregor’s claim is premature and not subject to review. Hancock v. Oates, 244 Ga. 175, 177 (259 SE2d 437) (1979); Memorial Med. Center v. Moore, 184 Ga. App. 176 (361 SE2d 49) (1987); Campbell v. George, 129 Ga. App. 644 (200 SE2d 503) (1973).

2. We decline to impose penalties for a frivolous appeal under Court of Appeals Rule 26.

Appeal dismissed.

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

On Motion for Reconsideration.

Seeking reconsideration of our opinion dismissing this appeal, appellant argues that we have overlooked his enumeration of error complaining that it was error for the trial court to dismiss the complaint in its entirety because count two encompassed a direct action by appellant against the controlling shareholders of Southern Medical Systems, Inc., which claim dose not require a prior written demand.

Basically appellant contends that the dismissal of count two, which was not specifically addressed by the trial court, necessarily constituted a summary judgment order which is directly appealable. However, from review of the record it appears that insofar as count two was dismissed, it was an oversight by the trial court. This oversight does not raise the matter to the status of a final judgment. No evidence was introduced as to count two and the motion to dismiss did not evolve into a motion for summary judgment under OCGA § 9-11-12 (c). A dismissal based on a motion not supported by evidence is not final and directly appealable unless, as a result, the case is no longer pending in the court below. OCGA § 5-6-34; Farmers Co-op. Ins. Co. v. Hicks, 227 Ga. 755 (182 SE2d 895) (1971).

Appellant’s expressed concern about the effect of our ruling with regard to the substantive law involved in the case demonstrates a misapprehension of the appellate process. Our dismissal based upon prematurity does not prevent appellant from asserting error before the trial court or to the appellate court once finality is achieved.

Decided May 28, 1991

Reconsideration denied July 3, 1991.

Roberts & Isaf, Lawrence E. Newlin, Lynn E. Marsal, for appellants.

Arnall, Golden & Gregory, Theodore H. Lackland, Michael S. Wakefield, for appellees.

Motion for reconsideration denied.