text:
    A97A2183.
    DISASTER SERVICES, INC. v. ERC PARTNERSHIP et al.
    (492 SE2d 526)
   Eldridge, Judge.

On May 6, 1991, ERC Partnership (“ERC”), defendant-appellee, entered into an asset purchase agreement with Eastern Air Lines (“EAL”), after EAL went bankrupt and ceased operations, to buy its leasehold interest in its Reservation Building for $1,050,000. The building was owned by the John D. and Catherine T. MacArthur Foundation (“Foundation”). On June 24, 1991, the bankruptcy court approved this sales agreement. ERC began negotiations with the Foundation to purchase the building subject to EAL’s leasehold interest. Under the lease, EAL had to maintain fire insurance and keep the building in good repair.

In July 1991, prior to the closing of the sale of the lease by EAL to ERC under the asset purchase agreement, the Reservation Building was badly damaged by fire. The asset purchase agreement between EAL and ERC was amended to delay closing until EAL had the fire damage repaired.

On October 21, 1991, Disaster Services, Inc. (“DSI”), plaintiff-appellant, entered into a contract with EAL, to be performed in three phases, to repair the fire damage to the building, as required by the lease and the amendment to the asset purchase agreement with ERC. DSI alleges that, had all three phases of the contract been performed, it would have received a total sum of $1,005,801. On October 23, 1991, EAL instructed DSI to commence work, and by November 1991, the first phase of the work had been completed.

In early December 1991, ERC requested that EAL delay phases II and III of the contract with DSI to repair the fire damage so that ERC could negotiate a purchase of the fee simple interest in the building from the Foundation and have total ownership and control of the building. On December 13,1991, ERC and EAL entered into an amendment to the asset purchase agreement in order to delay phases II and III of the repair contract until January 10, 1992. On January 9, 1992, ERC successfully negotiated a purchase agreement with the Foundation for an “as-is” purchase of the building with an assignment of any interest in the insurance proceeds to ERC. The closing of both purchases by ERC from EAL and the Foundation was on March 18, 1992. On March 24, 1992, ERC and EAL entered into an assignment and assumption of the lease from the Foundation and put into effect the May 6, 1991 asset purchase agreement as amended. Such final agreement relieved EAL of any duty to have the building repaired and assigned to ERC any rights to the insurance proceeds. Under the repair contract with DSI, EAL retained the right to cancel the agreement at any time and to pay for the work performed plus a profit, which EAL exercised; EAL terminated the contract, canceling work by DSI on phases II and III. On June 20, 1992, EAL and ERC settled all claims, liens, and obligations between each other for $300,000, after approval of the bankruptcy court. ERC never assumed any liabilities to DSI under its agreement with EAL.

On November 27, 1995, DSI sued ERC for tortious interference with the contractual relations with EAL, tortious interference with business relations with EAL, and tortious interference with prospective business relations with EAL. ERC timely answered. On November 20, 1996, ERC moved for summary judgment. On March 7, 1997, after hearing oral argument on March 3, the trial court granted summary judgment.

DSI’s five enumerations of error all assert different reasons that the trial court erred in granting summary judgment. We do not agree.

While ERC was not a party to the agreement between EAL and DSI and was not specifically named as a third-party beneficiary within the meaning of Georgia contract law, nonetheless, ERC was not a stranger to the contractual relationship between EAL and DSI. ERC had a pre-existing contract for the asset purchase of the leasehold interest in the Reservation Building with EAL and had begun negotiations for the purchase of the property subject to the lease with the Foundation. The delay in the closing of the asset purchase of the leasehold was for the benefit of ERC, so that the building could be restored to its pre-fire condition as required, not only by the asset purchase agreement, but also by the duties under the lease from the Foundation. ERC was as much a legitimately interested party to the contract between EAL and DSI as was the Foundation, because ERC would receive the Reservation Building upon closing, either “as-is” or fully repaired by DSI.

Tortious interference claims, whether asserting interference with contractual relations, business relations, or potential business relations, share certain common essential elements: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff. Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333 (444 SE2d 814) (1994); Green v. Johnston Realty, 212 Ga. App. 656 (442 SE2d 843) (1994); Integrated Micro Systems v. NEC Home Electronics (USA), 174 Ga. App. 197, 200 (3) (329 SE2d 554) (1985).

For purposes of this type of tort, “privilege” means legitimate economic interests of the defendant or a legitimate relationship of the defendant to the contract, so that it is not considered a stranger, interloper, or meddler. Driggers v. Continental Grain Co., 210 Ga. App. 293, 295 (2) (435 SE2d 722) (1993); Nilan’s Alley v. Ginsburg, 208 Ga. App. 145, 146 (2) (430 SE2d 368) (1993). The defendant must have a bona fide economic interest in the contract or relationship with one of the parties to the contract. Renden, supra; Jet Air v. Nat. Union Fire Ins. Co., 189 Ga. App. 399, 403 (375 SE2d 873) (1988). Where appropriate circumstances appear from the evidence that a defendant had a legitimate interest in either the contract or a party to the contract, the defendant is not a stranger to the contract, although the defendant is a “non-signer of a particular contract!!, it is not] a stranger to the contract itself or to the business relationship giving rise thereto and underpinning [the contract].” Renden, supra at 336 (2) (b). A direct economic interest in the contract existed for ERC, while not rising to a third-party beneficiary status under Georgia contract law, which made it a clear beneficiary to the contract between EAL and DSI for tort law purposes. See Jefferson-Pilot Communications Co. v. Phoenix City Broadcasting &c., 205 Ga. App. 57, 60 (421 SE2d 295) (1992); see also Lake Tightsqueeze, Inc. v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178, 181 (5) (435 SE2d 486) (1993); Shepard v. Fed. Land Bank of Columbia, 205 Ga. App. 254; 258 (3) (421 SE2d 763) (1992). Thus, all actions by ERC were in the furtherance of a pre-existing contractual relationship with EAL and the completion of a pre-existing contract formation with the Foundation to purchase the realty; such facts and circumstances created a privileged relationship with EAL and with the contract between EAL and DSI.

The conduct of ERC was not tortious, wrongful, or improper action. See Singleton v. Itson, 192 Ga. App. 78 (383 SE2d 598) (1989). ERC began the contract with EAL and the contract formation with the Foundation, not only prior to the fire, but also prior to EAL entering into the contract with DSI to perform the repairs in three phases, a contract which was cancelable at will. ERC had the right, as well as the power, to do what it ultimately did, i.e., buy out the interests of EAL and the Foundation of the realty “as-is” and take an assignment to the fire insurance proceeds, prior to the contract between EAL and DSI; obviously, DSI could not claim that ERC’s actions deprived it of a potential contractual or business relationship with EAL.

Improper actions constitute conduct wrongful in itself; thus, improper conduct means wrongful action that “generally involve[s] predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions.” American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 349 (2) (392 SE2d 860) (1990).

Decided September 8, 1997

Reconsideration denied October 7, 1997

Huprich & Associates, Don C. Huprich, Philip S. Andrews, for appellant.

Alston & Bird, Robert D. McCallum, Jr., Cynthia L. Counts, for appellees.

The exercise of an absolute legal right is not and cannot be considered an interference with a contractual or potential contractual relationship. See Singleton v. Itson, supra; J. C. Penney Co. v. Davis & Davis, Inc., 158 Ga. App. 169 (279 SE2d 461) (1981). The fact that the negotiation and execution of the contracts between ERC, EAL, and the Foundation had an adverse economic impact upon DSI, because EAL exercised its absolute right to terminate the contract with DSI, does not give rise to improper conduct. See Forehand v. Perlis Realty Co., 198 Ga. App. 165 (400 SE2d 644) (1990); First Mtg. Corp. of Va. v. Felker, 158 Ga. App. 14 (279 SE2d 451) (1981). ERC had the absolute right to amend and close its asset purchase agreement with EAL, even though it had a negative affect upon DSI.

On motion for summary judgment, ERC introduced evidence which pierced the pleadings of DSI, showing that under all the theories of liability, the conduct of ERC was, not only proper, but privileged and that DSI could present no evidence to the contrary; thus, defendant showed that an essential element of plaintiff’s case could not be proven under any theory. Under OCGA § 9-11-56 (e), the burden of producing evidence shifted to DSI, which failed to make out a disputed issue of material fact for a jury determination, so that it was proper for the trial court to determine as a matter of law that ERC was entitled to the grant of summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A1138.
    KAYE et al. v. RYLAND GROUP, INC.
    (492 SE2d 729)
   McMurray, Presiding Judge.

Mark Kaye and Brenda Kaye instituted an action against the Ryland Group, Inc. (“Ryland”), claiming Ryland’s agent committed fraud by selling them a house while concealing the fact that a nearby road was scheduled to be moved closer to the house. According to the complaint, the agent led the Kayes to believe the road “might” be moved, but only by a few feet. Ryland moved for summary judgment based on a “merger” or “entire agreement” clause in the sales contract, which stated in part: “There are no oral or other written agreements or representations, directly or indirectly, connected with this agreement. We make no representations concerning any land adjacent to or near the property. We will not be bound by any other representations made by any salesperson or other person.” The trial court, finding the Kayes had affirmed the contract and had made no effort to rescind it, found this contract provision barred the Kayes’ claims. The Kayes appeal the trial court’s grant of summáry judgment based on those findings. Held:

On appeal of this grant of summary judgment, we review the trial court’s rulings de novo, construing the evidence strongly in favor of the non-movants, the Kayes. As movant, Ryland was entitled to summary judgment only if it showed, by undisputed facts, a lack of evidence to support an essential element of the Kayes’ claim. Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996).

A party claiming he or she was fraudulently induced to enter a contract has two possible remedies: (1) to promptly rescind the contract after discovering the fraud and sue in tort for the recovery of the contract’s consideration, as well as any other damages resulting from the fraud; or (2) affirm the contract and sue for damages resulting from the fraud. Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 523 (1) (448 SE2d 271) (1994). Where the party elects the second option and affirms the contract, however, he or she is bound by its terms. In this case, the contract’s “merger” provision would estop a party bound by the terms of the contract from arguing that he or she relied on representations other than those contained in the contract. See Rampey v. Jay Pontiac GMC Truck, 211 Ga. App. 632, 633 (440 SE2d 52) (1993); Carpenter v. Curtis, 196 Ga. App. 234, 236-237 (395 SE2d 653) (1990). The crucial question in this case, therefore, is whether the Kayes are bound by the terms of the sales contract.

“ Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. . . .’ [Cit.]” Roller-Ice v. Skating Clubs of Ga., 192 Ga. App. 140, 142 (384 SE2d 235) (1989) (physical precedent); see also Flair Fashions v. SW CR Eisenhower Drive, Inc., 207 Ga. App. 78, 79 (427 SE2d 56) (1993).

Here, the affidavit of plaintiff Mark Kaye states that he and Brenda Kaye purchased their home from Ryland in September 1994. After they purchased the home, the Georgia Department of Transportation (“DOT”) condemned part of the property for an easement. The affidavit does not clearly state how or when the DOT obtained this easement. Pleadings the plaintiffs submitted in response to Ryland’s motion for summary judgment state the Kayes “negotiated a settlement” with DOT for this easement. In their appellate brief, the plaintiffs state this settlement was entered a year after the purchase. There is no question that at the time the Kayes negotiated the easement with DOT, they knew of the alleged concealment or misrepresentation máde by Ryland’s agent. By transferring an interest in the property to DOT, the Kayes claimed it as their own and showed an intent to affirm the purchase. These acts were inconsistent with a repudiation of the transaction. See Orion Capital Partners, L.P. v. Westinghouse Elec. Corp., 223 Ga. App. 539, 542 (2) (b) (478 SE2d 382) (1996) (in suit by purchasers of company, management decisions made after fraud discovered showed intent to affirm contract). Although the Kayes filed suit against Ryland in March 1996, the record shows their only effort to rescind the contract was a prayer for relief included in an amended complaint filed after Ryland moved for summary judgment. The Kayes’ silence shows their acquiescence in the transaction, Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, supra, and their efforts to rescind were untimely. Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 298 (1) (427 SE2d 789) (1993) (attempts to rescind contract in response to motion for summary judgment were untimely).

Citing Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589, 590 (411 SE2d 518) (1991), the Kayes contend they were not required to tender the home to Ryland in order to rescind the contract. In Crews, this Court held that an offer to return vehicles to the defrauding dealer was not required where that action would not have relieved the plaintiffs of debts owed on the vehicles to a third-party lender. Even if this precedent shows the Kayes were not required to tender the house to Ryland, it does not change the result in this case. As this Court noted in Owens v. Union City Chrysler-Plymouth, 210 Ga. App. 378, 380 (436 SE2d 94) (1993), the plaintiffs in Crews, supra, were excused from tendering their vehicles and had done nothing to affirm the purchases. In this case, the Kayes did affirm the contract. Moreover, although the Kayes argue the terms of their mortgage would not allow them to tender the property to Ryland, the record contains no copy of the mortgáge agreement supporting that conclusion.

As the trial court properly found the Kayes affirmed the transaction at issue, they are bound by the terms of the merger clause contained in the sales contract. The trial court, therefore, did not err in awarding Ryland summary judgment.

Decided October 7, 1997.

Weinstock & Scavo, Steven M. Winter, Louis R. Cohan, for appellants.

Bovis, Kyle & Burch, William B. Barrickman, for appellee.

Judgment affirmed:

Beasley, J., concurs. Smith, J., concurs in the judgment only.


author: Beasley, Judge. Smith, Judge,

text:
    A97A1695.
    LAWRENCE v. THE STATE.
    (492 SE2d 727)
   Beasley, Judge.

Finding Jeffrey Lawrence had not met the terms of his probation and had committed two new violent misdemeanors, the court revoked the remaining four and one-half years of his probation. Lawrence appeals on the ground that OCGA § 42-8-34.1 (b) limits to two years the amount of probation a court may revoke. But where one basis for revoking probation is the failure to comply with “a special condition imposed pursuant to [OCGA § 42-8-34.1],” the two-year limit does not apply. OCGA § 42-8-34.1 (c). Because the trial court based the length of revocation on multiple grounds, the case is remanded with direction to reconsider the length.

On August 16, 1996, Lawrence pled guilty to terroristic threats (OCGA § 16-11-37), criminal damage to property (OCGA § 16-7-23), and criminal trespass (OCGA § 16-7-21). The court sentenced him to five years probation. General conditions of probation (e.g., do not violate criminal laws, report to probation supervisor as directed, etc.), as well as specific additional conditions, were imposed. The latter included 90 days of service in a work release program, no consumption of alcohol, and payment of $25 per week to pay off a $650 fine, $858.03 restitution, and a $20 monthly probation fee.

Five months later, the State petitioned the court to revoke probation on the grounds that Lawrence had violated two general conditions by twice committing the offense of battery and by failing to report to the probation officer following his completion of work release. The second ground was later abandoned. The State further alleged Lawrence had violated a “special condition” by failing to make the court-ordered payments.

At the hearing, Lawrence stipulated to the two battery offenses, and the probation officer testified Lawrence had not made the payments. The court found he had failed to meet the conditions as alleged in the petition and further found that he had committed new violent misdemeanors. The court ordered him to serve the balance of his sentence in the State penal system. See OCGA § 17-10-1 (a) (3) (A).

Lawrence moved the court to reconsider, arguing that OCGA § 42-8-34.1 (b) prohibited revocation of more than two years of his probation. The State responded that, based on OCGA § 42-8-34.1 (c) and Manville v. Hampton, 266 Ga. 857 (471 SE2d 872) (1996), the violation of the special condition authorized the court to revoke the remainder of probation even though it exceeded two years. During the hearing and in its order denying the motion, the court explained that in revoking the balance it had not relied upon any provision of OCGA § 42-8-34.1, but had relied upon OCGA § 17-10-1 (a) (3) (A) and its finding of new violent misdemeanor offenses.

OCGA § 42-8-34.1 (b) provides: “At any revocation hearing, upon proof that the defendant has violated any provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to [prison confinement]. In the event the court determines that the defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.” (The words “in confinement” are an inapt and confusing appendage, for what is revoked is a period of probation, not a period of confinement. Confinement is what is ordered as a result of revocation.)

According to the statute, when the sole basis for revoking probation is the commission of a new misdemeanor, whether violent or not, the cap is two years. See Gordon v. State, 217 Ga. App. 271 (2) (456 SE2d 761) (1995). But when a special condition provided for in OCGA § 42-8-34.1 (d) is contravened, subsection (c) allows the court to revoke the entire balance of probation even if greater than two years. See Manville, supra, 266 Ga. at 858-860 (2); Gearinger v. Lee, 266 Ga. 167 (465 SE2d 440) (1996). In Manville, the probationer committed felony theft (violation of a general condition), and he failed to make payments as directed (violation of a qualifying special condition). Because of the breach of the special condition, the Supreme Court upheld the revocation of the balance of the probated sentence — approximately 23 years.

What constitutes a special condition under OCGA § 42-8-34.1 (c) is crucial. Gearinger’s special condition was to obey all rules of the detention center, which turned out to include rules against insubordination, verbally threatening a correctional officer, failing to follow instructions, and using obscene words. But this was not a special condition “imposed pursuant to [OCGA § 42-8-34.1].” Manville’s special condition was the payment of a fine in equal periodic increments and a monthly probation supervision fee, special conditions that are covered by OCGA § 42-8-34.1 (d).

The earlier case of Cockrell v. Brown, 263 Ga. 345 (433 SE2d 585) (1993), focused only on subsection (b) of the statute and did not address the applicability of subsection (c) even though some of the violated conditions involved the payment of a fine, costs, and restitution. Id. at 346, n. 1. Without considering the authorization for revoking the balance of probation for the special conditions, whatever that balance was, Cockrell reversed the revocation judgment and remanded for resentencing.

The statute limits qualifying special conditions to ones “imposed pursuant to this Code section.” OCGA § 42-8-34.1 (c). Subsection (d) sets out the special conditions of payment of restitution or reparation, costs, or fines in lump sum or periodic. See Mancille, supra. These conditions were expressly set out in Lawrence’s sentence as conditions “other” than the “general conditions.” Accordingly, Lawrence’s failure to make the scheduled payments gave the court cause to revoke the remaining balance of his probation, and OCGA § 42-8-34.1 (c) gave the authority.

But the court made clear that it was not relying on the nonpayment of fines as the basis for revoking the entire sentence, but was relying on the commission of the two new violent misdemeanors: at the revocation hearing it said the nonpayment of monies is “not the primary issue the Court is concerned about today”; in the subsequent hearing on the motion to reconsider it said “the basis of the revocation for the balance is a new violent misdemeanor offense based upon 17-10-1 (3) (A),” and in the order denying reconsideration it wrote “the sentence of probation revocation . . . was properly imposed pursuant to O.C.G.A. § 17-10-1 (a) (3) (A) as a new violent misdemeanor offense.” The court construed OCGA § 17-10-1 (a) (3) (A) as a source of power independent of OCGA § 42-8-34.1 to revoke the remainder of probation if it found the new misdemeanors were violent.

In this the trial court erred. OCGA § 17-10-1 (a) (3) (A) deals exclusively with the type of facility or program to which a court may order a defendant whose probation has been revoked; it does not speak to the length of detention. OCGA § 42-8-34.1 governs the length of detention permitted on a probation revocation. The finding that Lawrence had committed two new violent misdemeanors precluded the court under OCGA § 17-10-1 (a) (3) (A) from ordering him to an alternative facility other than a prison, and the court correctly chose the State penal system for confinement. But the commission of the misdemeanors did not authorize revocation of the remaining four and one-half years of his sentence. If misdemeanors were the sole basis for the probation revocation, OCGA § 42-8-34.1 (b) would limit that revocation to two years.

It was the court’s finding that a special condition of probation had been violated that empowered it to revoke probation on the balance. OCGA § 42-8-34.1 (c).

Decided October 7, 1997.

Steven M. Reilly, for appellant.

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

Because the court misapprehended the law in determining the length of revocation, the case is remanded for the trial court to exercise its discretion in light of the law as construed herein. See OCGA § 42-8-38 (b) and (c); Mohammed v. State, 226 Ga. App. 387 (486 SE2d 652) (1997); State v. Jones, 196 Ga. App. 896 (397 SE2d 209) (1990) (revocation of probation is discretionary). The trial court may revoke the entire balance of Lawrence’s probation based on his nonpayment of the fines, restitution, and fees ordered by the court or may revoke up to two years based on the batteries. Manville, supra at 859.

Judgment vacated and remanded with direction.

McMurray, P. J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I concur in the majority’s analysis of the error made by the trial court. I disagree only with the majority’s direction to the trial court on remand. The transcript reveals clearly that the trial court revoked Lawrence’s probation because he committed new, violent misdemeanors. The violation of any special conditions of probation did not enter into the trial court’s decision to revoke probation. Commission of the new misdemeanors, therefore, limits the length of time to which Lawrence may now be sentenced. OCGA § 42-8-34.1 (b); Gordon v. State, 217 Ga. App. 271 (2) (456 SE2d 761) (1995). In my view, this Court should vacate Lawrence’s sentence and remand to the trial court for resentencing to two years confinement and the rest on probation.


author: Johnson, Judge.

text:
    A97A1588.
    BROWN v. THE STATE.
    (492 SE2d 555)
   Johnson, Judge.

Dwayne Brown was charged with rape, aggravated assault with intent 'to rape, child molestation, and cruelty to children. A jury found him guilty of child molestation and attempt to commit statutory rape. In this appeal, Brown contends the trial court erred in submitting the statutory rape charge to the jury and in failing to instruct the jury he could be convicted of either child molestation or attempted statutory rape, but not both. We affirm.

Viewed in the light most favorable to the verdict, the evidence shows Brown had sexual intercourse with the victim, a 15-year-old girl. The victim testified she willingly kissed Brown, but when she resisted his efforts to have intercourse, he overcame her resistance by force. Her memory of the incident was not good, however, because she admitted being extremely intoxicated at the time. Brown admitted to a sheriff’s investigator he attempted to have intercourse with the victim, but claimed he had been unable to do so because of his own intoxication. A friend of the victim testified she discovered the victim lying face up, with her jeans and underpants down around her knees, and Brown lying face down on top of her.

Count 1 of the indictment charged Brown “with the offense of RAPE (16-6-1) for that the accused [on the date in question] did unlawfully then and there have carnal knowledge of [the victim], a female under the age of 16 years and not his spouse, forcibly and against her will.” Though this count listed the Code section only for forcible rape, OCGA § 16-6-1, it alleged facts relevant to both that offense and statutory rape, defined in OCGA § 16-6-3. The age of the victim and the fact she was not Brown’s spouse were relevant only to statutory rape, because neither age nor marital relationship is a defense to forcible rape. See OCGA § 16-6-1 (a). On the other hand, the allegation of “forcibly and against her will” was relevant only to forcible rape under OCGA § 16-6-1, because it is unnecessary to prove force or lack of consent in order to obtain a conviction for statutory rape under OCGA § 16-6-3. See Drake v. State, 239 Ga. 232, 233 (1) (236 SE2d 748) (1977).

Because a person under the age of 16 cannot legally consent to sexual intercourse (see Luke v. State, 222 Ga. App. 203, 206 (474 SE2d 49) (1996) (fn. 2 and accompanying text)), the trial judge granted the state’s motion in limine to prevent Brown from introducing evidence tending to show the victim consented to have intercourse with him. Later, in the charge conference, the court and counsel for both sides discussed issues raised by the order in limine and the drafting of Count 1. The state wanted the case to go to the jury under a forcible rape theory, not a statutory rape theory,, because OCGA § 16-6-3 (a) (statutory rape) requires corroboration of the victim’s testimony while OCGA § 16-6-1 (forcible rape) does not. However, the state also Wanted the jury to be charged that the “forcibly and against her will” language of OCGA § 16-6-1 could be satisfied merely by proof the victim was under the age of consent. The trial court characterized the prosecutor’s position as wanting to “have your cake and eat it too.” The defense moved for a directed verdict or mistrial, complaining that statutory rape under OCGA § 16-6-3 should not be charged to the jury because it was not referred to in the indictment, and forcible rape under OCGA § 16-6-1 should not be charged to the jury because the defense had been prohibited from introducing evidence of consent.

Without explicitly ruling on Brown’s motion, the judge proceeded to charge the jury on forcible rape, statutory rape, and criminal attempt. After beginning its deliberations, the jury requested further instructions, and the judge again in structed them on both of the rape offenses and attempt. As mentioned above, the jury found Brown guilty only of child molestation and attempt to commit statutory rape.

1. Though Brown presents three enumerations of error, his brief contains only one continuous argument instead of the separate arguments required by Court of Appeals Rule 27 (c) (1). In an extreme case, the failure to present arguments in the format specified by our rules may result in a refusal by this Court even to consider one’s arguments. See Whisenhunt v. State, 172 Ga. App. 742, 744 (5) (324 SE2d 570) (1984). In this case, however, we will address Brown’s enumerations of error based on what we perceive his arguments to be.

2. In his first two enumerations of error, Brown contends the judge should not have charged the jury on statutory rape or attempt to commit statutory rape because the indictment referred only to OCGA § 16-6-1, not to OCGA § 16-6-3, and statutory rape under the latter Code section is not a lesser offense included in forcible rape under the former. See Hill v. State, 246 Ga. 402, 405 (III) (271 SE2d 802) (1980).

We disagree with Brown’s conclusion. The issue is not whether one form of rape is a lesser offense included in the other, but whether the indictment put Brown on notice of the conduct with which he was charged, so he could intelligently prepare his defense and be protected from double jeopardy. See State v. Eubanks, 239 Ga. 483, 484-485 (238 SE2d 38) (1977). “[A]n inconsistency between the denomination and the allegations in the indictment is an imperfection, but is one that is subject to a harmless error test on appeal. ... It is immaterial what the offense is called, if the averments of the presentment are such as to describe an offense against the laws of the state. It is not the name given to the bill which characterizes it, but the description in the averments of the indictment.” (Citations and punctuation omitted.) Id. at 484.

The facts of Eubanks are instructive. In that case, the indictment stated Eubanks was charged with theft by deception (former Code Ann. § 26-1803), but recited facts constituting not that offense but theft by conversion (former Code Ann. § 26-1808). The jury found Eubanks guilty of theft by conversion, and the Supreme Court of Georgia affirmed because he had been put on notice of the acts he was alleged to have committed. Id. at 484, 489. Similarly, the indictment in this case put Brown on notice he was charged with having sexual intercourse with a female under the age of 16. The jury found him guilty of attempting to do precisely that.

Moreover, Brown’s attorney specifically acknowledged that, regardless of the statute heading and name of the offense in the indictment, he had notice that Brown was being charged with statutory rape. During the jury charge conference, the following colloquy took place: “THE COURT: Well, wait a minute let pae backtrack all of this. Mr. Ray, the mere fact that they put down [rape], they charged in the indictment in fact [statutory rape], just like I said. But you went ahead and added in there “forcibly and against her will.” They used the language “not the spouse,” which is [rape]. I’m going to charge [rape] — I mean, [statutory rape]. The — you were on notice that they were proceeding under the other section. MR. RAY: Correct.” Thus, Brown is unable to show prejudice resulting from the improper name given the actual charge in his indictment. As in Eubanks, we find that “[a]ny error in failing to give [Brown] a ‘perfect’ indictment is subject after trial to a harmless error test, and was manifestly harmless.” Id. at 489.

In addition, a variance between the Code section cited and the allegations specified goes only to the form of the indictment, and a defendant waives any objection to its form if he does not raise the objection in a written motion before entering a plea on the merits. See Phillips v. State, 215 Ga. App. 526 (2), 527 (451 SE2d 517) (1994); see generally Echols v. State, 187 Ga. App. 870 (371 SE2d 682) (1988). Brown filed no such timely written motion. Brown’s first two enumerations of error are without merit.

3. Brown contends the trial court erred in failing to instruct the jury the child molestation charge merged with the attempted statutory rape charge. See generally OCGA § 16-1-7 (a) (1). When the trial judge asked if Brown had any exceptions to the jury charges, however, Brown neither raised this issue nor reserved the right to raise objections in a motion for new trial or on appeal. He therefore waived any error that was not a “substantial error . . . which was harmful as a matter of law.” OCGA § 5-5-24 (c); see Wright v. State, 222 Ga. App. 613, 615 (3) (475 SE2d 670) (1996). There was no error of this magnitude because Brown received identical, concurrent sentences on the two counts of which he was convicted.

Decided September 19, 1997

Reconsideration dismissed October 8, 1997.

Robert M. Ray, Jr., Michael K. McKinney, for appellant.

Roger Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

Moreover, “[a]s this charge concerns an issue which must be resolved by the court, not the jury, the trial court did not err by refusing to give the requested charge.” Sanders v. State, 212 Ga. App. 832 (2) (442 SE2d 923) (1994); see generally Diamond v. State, 267 Ga. 249, 251 (3) (b) (477 SE2d 562) (1996). We do not need to address whether the trial court was ultimately correct in entering separate convictions on the two offenses because Brown has failed to allege any error in his sentencing and has raised no merger issue other than the jury charge issue just discussed. In addition, the record is devoid of any evidence showing that Brown objected to his sentence, and by not raising the objection below, Brown would have waived his right to object to his sentence. See Henderson v. State, 218 Ga. App. 311, 312 (3) (460 SE2d 876) (1995); Hall v. State, 200 Ga. App. 585, 588 (5) (409 SE2d 221) (1991). This enumeration of error is therefore also without merit.

Judgment affirmed.

Pope, P. J., concurs. Blackburn, J., concurs in judgment only.

       Moreover, a forcible rape conviction requires proof of both force and lack of consent. They are not the same thing. See Drake, supra at 232-234 (1), stating lack of consent in a forcible rape case may be shown by proving the victim was younger than the age of consent, but force must be shown by evidence of acts of force, mental coercion, or incapacity (based on factors other than age) of the victim. Drake was criticized in Luke, supra at 203-206 (1) (a), (b) and Cooper v. State, 180 Ga. App. 37, 38-39 (1) (348 SE2d 486) (1986), but has not been overruled.


author: Judge Harold R. Banke.

text:
    A97A1086.
    SIMMONS v. McBRIDE.
    (492 SE2d 738)
   Judge Harold R. Banke.

In this pro se breach of contract action, J. E. Simmons sued Cary McBride a/k/a Carry McBride and Milton Mitchell, alleging that they failed to pay for seven two-ton truck loads of pine straw they removed from Simmons’ property. Simmons sought $14,000 in damages. Mitchell defaulted, and judgment was entered against him. After a hearing on the claim against McBride, the trial court determined that no contract existed and entered judgment for McBride. Simmons then filed this pro se appeal, enumerating two errors. Held:

The record shows that Simmons initially sold his pine straw for $.25 per bale. One of his customers was McBride’s employer, Boyette Smith, who operated a nearby pine straw bailing operation. Simmons subsequently raised his price to $500 per pickup truck load, advertising the new terms on a sign at the entry to his property. When he raised the price, Simmons notified his customers that he would charge them with theft or trespass if they were caught on his property.

After Simmons’ agent observed McBride and Mitchell leaving Simmons’ property with a truck load of pine straw, he summoned law enforcement. When the agent and a deputy returned to the property, they found McBride and Mitchell loading their truck with another load of pine straw. McBride and Mitchell admitted to removing seven two-ton truck loads of pine straw, the equivalent of twenty-eight pickup loads. They stated that they were gathering the pine straw at the direction of their employer, Smith, who had given them the key to Simmons’ gate. Held:

Simmons maintains the trial court erred in finding that McBride (1) did not assent to paying $500 per truck load of pine straw and (2) did not understand that the posted sign was an offer directed at him personally. Because both these enumerations hinge on the issue of McBride’s assent, we address them jointly.

In bench trials, the court sits as the trier of fact, and its findings will not be reversed absent clear error. Decatur Co. v. Bowen, 203 Ga. App. 84, 87 (1) (416 SE2d 304) (1992). Thus, if any evidence supports the trial court’s determination that McBride never assented to Simmons’ purported terms, we must affirm. Id.

A meeting of the minds is “ ‘[t]he first requirement of the law relative to contracts.’” White & Assoc. v. Decker & Hallman, P.C., 203 Ga. App. 14 (1) (416 SE2d 352) (1992). “ ‘ “In order that there may be an agreement, the parties must have a distinct intention common to both and without doubt or difference. Until all understand alike, there can be no assent... to the same thing in the same sense, and their minds must meet as to all the terms.” ’ ” Christensen v. Roberds of Atlanta, 189 Ga. App. 289, 291 (2) (375 SE2d 267) (1988) (physical precedent only).

Simmons presented no evidence that McBride ever agreed to the terms of the purported contract. The mere fact that Simmons posted a price and McBride took the pine straw was insufficient to establish the existence of a contract, particularly in light of the evidence that McBride was acting at the direction of his employer, who gave him a key to enter the property. See id.; Restatement (2d) of Contracts, § 53, comment (a) (“In the absence of a contrary indication, the question is whether acceptance by performance is reasonable under the circumstances.”). The evidence of Simmons’ prior dealings with McBride’s employer also undermines the contention that McBride accepted the offer displayed on the signs. See White Lumber Sales v. C. Brinson Lamb &c. Co., 121 Ga. App. 702 (175 SE2d 81) (1970).

Decided October 8, 1997.

J. E. Simmons, pro se.

Byrd & Anthony, Lovick P. Anthony, Jr., for appellee.

While Simmons no doubt would have been entitled to some compensation for his loss, a breach of contract action seeking to enforce terms well beyond the pine straw’s market value was not the appropriate avenue for relief. Because Simmons failed to meet his burden of showing clear error in the trial court’s disposition of his case, we affirm. Grossman v. Smith, Barney Real Estate Fund, 211 Ga. App. 243, 245 (438 SE2d 700) (1993).

Judgment affirmed.

Birdsong, R J., and Eldridge, J, concur.

       McBride failed to file an appellee’s brief, notwithstanding this Court’s order requiring him to do so.

       Testimony established that this adjustment hiked the price almost $40 per bale.


text:
    A97A1385.
    MILLER v. THE STATE.
    (492 SE2d 734)
   Judge Harold R. Banke.

James Rupert Miller was convicted of aggravated sodomy and aggravated assault. He enumerates six errors on appeal.

This case arose after Miller, a mortgage broker, stopped at a strip club on his way home from work at around 6:30 p.m. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). The victim, a nude dancer at the club, performed two table dances for Miller, drank with him, and eventually accepted his offer to drive her home from work. The victim surreptitiously met Miller in the club’s parking lot, violating the club’s prohibition against dancers leaving with customers. The couple left around 8:30 p.m. for a restaurant, where they dined and drank for several hours. On the way to the victim’s home, Miller decided to stop at his apartment. After he and the victim entered, Miller expressed an interest in sex, pushed her down on the bed, and attempted to remove her jeans. When the victim resisted, Miller began slapping her. Eventually, Miller seemed to realize that the victim would not willingly capitulate and agreed to drive her home. Instead, Miller drove the victim to a wooded area where he choked and slapped her, eventually forcing her to choose between sodomizing him or death. After the victim finished, Miller took her home. Held:

1. The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The victim’s testimony that Miller beat her and attempted to remove her jeans with the intent to force her to submit to his sexual advances establishes the elements of aggravated assault. OCGA § 16-5-21 (a) (1); see Henderson v. State, 204 Ga. App. 884 (1) (420 SE2d 813) (1992). Her testimony that Miller forced her to perform oral sex on him against her will establishes the elements of aggravated sodomy. OCGA § 16-6-2 (a). Miller in effect seeks a reweighing of the evidence. This we cannot do. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

2. Miller maintains the State committed reversible error by commenting on his pre-arrest silence. The exchange at issue occurred during cross-examination when Miller stated, “If a lady grabs you under the counter seductively, that generally implies to me that this is probably going to go further than a handshake at the door.” The State responded by asking whether Miller had told this story to police. After answering in the negative, Miller objected, and the court overruled the objection as untimely.

Although any comment upon a defendant’s silence in a criminal case is far more prejudicial than probative, reversal is not required here. Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991). In Mallory, the Supreme Court prohibited witnesses from testifying as to a criminal defendant’s statement based upon the defendant’s acquiescence or silence. Fairbanks v. State, 225 Ga. App. 666, 667-668, n. 2 (484 SE2d 693) (1997). But Mallory, which analyzed the impeachment of a defendant through use of a statement to police which included an inquiry into his failure to come forward and explain his innocence, is distinguishable. Mallory, 261 Ga. at 629 (5). Here, the circumstances surrounding Miller’s comment did not “ ‘require an answer, a denial, or other conduct [which] may amount to an admission.’ ” Id. at 630, quoting OCGA § 24-3-36. Unlike Mallory, Miller’s statement did not undermine the victim’s charges. His remark had substantially no bearing on his innocence and would have had no effect as a defense had Miller presented it to the authorities. Nor was the statement “ ‘of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to’ ” come forward or cooperate. Edwards v. State, 219 Ga. App. 239, 242 (2) (a) (464 SE2d 851) (1995); compare Ford v. State, 219 Ga. App. 562, 563 (2) (466 SE2d 11) (1995) (physical precedent only). It was simply Miller’s interpretation of the victim’s alleged body language at the restaurant, not at the situs of the crimes. Because Miller failed to establish that the question engendered the requisite harm, reversal is inappropriate. Druitt v. State, 225 Ga. App. 150, 152 (1), (5) (483 SE2d 117) (1997).

3. The trial court did not err by allowing the prosecution to introduce a matter not in evidence during cross-examination of a defense witness. The matter arose after the owner of the restaurant where Miller and the victim dined testified that the victim appeared to be enjoying herself, and the State asked if he had ever heard of acquaintance rape. Miller then objected that the question was irrelevant and argumentative. Because Miller’s contention that the State introduced a matter not in evidence is argued for the first time on appeal, consideration of this alleged error is inappropriate. McCann v. State, 200 Ga. App. 256, 258 (407 SE2d 482) (1991); Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986).

4. The trial court did not commit reversible error by permitting the State to comment on matters not in evidence during closing argument. In closing, the State argued that Miller had produced no evidence to back up his inference that the victim was a prostitute despite the fact that the vice squad monitored her workplace.

This argument simply disputed that the victim was a prostitute, a major component of Miller’s defense. The State was entitled to draw inferences from the dearth of evidence on that issue, although the reference to police activities was unsupported by the evidence and therefore of questionable propriety. Ortiz v. State, 222 Ga. App. 432, 434 (4) (474 SE2d 300) (1996). However, because the State’s remarks were not directed at Miller’s character and were highly unlikely to prejudice his right to a fair trial, reversal is unwarranted. Id.; compare Tate v. State, 191 Ga. App. 727, 728 (3) (382 SE2d 688) (1989) (reversing due to the State’s repeated references during closing to defendant’s drug use in trial unrelated to drugs with no evidence of drug use).

5. We agree with Miller’s contention that the State’s reference during closing to the fact that he carried an identification card rather than a driver’s license was inappropriate, though of sufficient vagueness that there is no reasonable probability that it affected the trial’s outcome. Thornton v. State, 264 Ga. 563, 578-579 (24) (449 SE2d 98) (1994). During pretrial motions, the trial court, with the State’s consent, had excluded any mention of Miller’s status as an habitual violator. Because Miller neither objected nor moved for mistrial, and the reference, though unprofessional, was so veiled that we cannot say it explicitly violated the court’s order severing the habitual violator charge from those in this case or actually brought Miller’s habitual violator status to the jury’s attention, we decline to reverse. See id.

Decided October 8, 1997.

Garland, Samuel & Loeb, Donald F. Samuel, David H. McDonald, for appellant.

Paul L. Howard, Jr., District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellee.

6. The State’s derogatory personal references to defense counsel during closing argument, though distasteful, do not require reversal. The State argued that defense counsel was victimizing the victim again after her initial trauma. Despite the trial court’s instruction to refrain from making personal comments about defense counsel, the State subsequently informed the jury that defense counsel had employed “just about every cheap shyster trick in the book.”

Personal remarks have no place in the State’s closing argument. Estep v. State, 129 Ga. App. 909, 915-916 (8) (201 SE2d 809) (1973). However, this Court will not disturb a trial court’s ruling on a motion for mistrial absent a manifest abuse of discretion, where a mistrial is essential to preserve the accused’s right to a fair trial. Bowen v. State, 203 Ga. App. 371, 374 (5) (417 SE2d 18) (1992). Having reviewed these comments in context, we find they were not sufficient to affect the trial’s fairness.

Webster’s defines “shyster” as a person, especially “a lawyer who uses unethical or tricky methods.” Webster’s New World Dictionary (3rd college ed. 1988). This undermines Miller’s argument that the State injected anti-Semitism into its closing.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       Miller also voiced an objection that “the surprise issue was elicited by the State on cross. They cannot extrapolate that into areas that are improper, having been the source of the initial response.” We are unable to determine the meaning of this objection.

       The State observed that “[tjhere’s not one shred of evidence that she’s [the victim] ever been arrested, convicted or the law has had any problem with her in that regard or in any other, because if she was a prostitute, don’t you think somewhere along the line she would have been arrested and charged with it? Vice cops go to these clubs too. It’s not just people like Mr. Miller. Police officers go there looking for violations of the law. . . .”

       The State argued, “You know, the evidence shows that he had a hotel receipt. Now, first of all, when you look at this, let’s look at something real careful. This is not a driver’s license, okay? This is an identification card. Wonder why? But anyway, I’ll leave that alone.”

       Because Miller failed to object to the State’s remark about ventriloquism, we decline to address that argument. Cooper v. State, 178 Ga. App. 709, 712 (3) (345 SE2d 606) (1986).


author: Ruffin, Judge.

text:
    A97A1786.
    OSBORNE v. THE STATE.
    (492 SE2d 732)
   Ruffin, Judge.

A jury found Terrance Osborne guilty of aggravated assault, possession of a firearm during the commission of a crime, and carrying a pistol without a license. Osborne appeals his aggravated assault conviction, arguing that there was insufficient evidence of his intent to injure the victim. For reasons which follow, we affirm.

On appeal, this Court determines evidence sufficiency; we do not weigh the evidence or determine witness credibility. Davis v. State, 225 Ga. App. 627 (1) (484 SE2d 655) (1997). “The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. [307], 319-320 [(99 SC 2781, 61 LE2d 560) (1979)].” Gable v. State, 222 Ga. App. 768, 769 (1) (476 SE2d 66) (1996).

Viewed in this light, the evidence shows that Osborne injured J. R., a 15-year-old girl, when she intervened in a dispute that Osborne was having with her brother. J. R. was across the street from Osborne and J. R.’s brother when she noticed they were arguing and intended to physically fight. J. R. saw Osborne place two guns on the ground and then pull a third gun from inside his pants. Osborne pointed the third gun about one inch from the face of J. R.’s brother. At that time, J. R. approached Osborne and her brother in an attempt take the gun away from Osborne. As she approached, J. R. told Osborne, ‘You ain’t going to shoot my brother.” When she was one to two feet from .Osborne, he fired three shots, one of which struck J. R. in the thigh. J. R. testified that Osborne shot three times towards the ground; however, she could not remember if the bullet from the third shot struck the ground before hitting her thigh. The next State witness, however, testified that Osborne fired the gun once at the ground and then shot J. R. in the thigh.

In addition, the investigating officer read to the jury Osborne’s statement regarding the event. In the statement, Osborne declared, “[J. R.] kept walking up on me, trying to get close to my face and I shot one time at the ground. She kept coming. I shot again at the ground. She kept coming. Then I shot again and it hit her in the leg. . . .” Osborne continued, “I was shooting down at the ground telling her to go on. ... I wasn’t trying to hit her. ... I was just trying to, you know, warn her, tell her to go on because I didn’t want to fight or nothing.” Osborne also told the investigating officer that he did not mean to shoot J. R. and he was sorry that he had shot her. Finally, in his statement, Osborne agreed with the investigating officer’s comment that if a bullet had struck the artery in J. R.’s leg, she could have died. Another State witness, the emergency room doctor who treated the bullet wound, also testified to the life-threatening nature of the injury. Osborne did not testify or present any evidence at trial.

On appeal, Osborne argues that the State did not prove intent because Osborne “fired the gun at the ground and did not point it at the victim.” We disagree. “The offense of aggravated assault [based on OCGA § 16-5-21 (a) (2)] has two essential elements: (1) that an assault, as defined in OCGA § 16-5-20 be committed on the victim; and (2) that it was aggravated by use of a deadly weapon.” (Citation and punctuation omitted.) Matthews v. State, 224 Ga. App. 407, 408 (1) (481 SE2d 235) (1997). OCGA § 16-5-20 provides that a person may commit assault in two ways.

First, a person commits an assault under OCGA § 16-5-20 (a) (1) when the person “[attempts to commit a violent injury to the person of another.” Under this subsection, “[t]he requirement of criminal intent can be satisfied by a showing of criminal negligence on the part of the [defendant],” Jordan v. State, 214 Ga. App. 598, 602 (2) (448 SE2d 917) (1994), because “there are wanton or reckless states of mind which are sometimes the equivalent of a specific intention to injure, and which may and should be treated by the jury as amounting to such intention when productive of violence likely to result in the destruction of life, though not so resulting in the given instance.” (Citation and punctuation omitted.) Id. at 601-602.

Second, “[a] person commits an assault under OCGA § 16-5-20 (a) (2) when the person commits an act which places another in reasonable apprehension of immediately receiving a violent injury. Intent to injure is not an element of aggravated assault with a deadly weapon when the assault element is predicated on OCGA § 16-5-20 (a) (2).” (Citation and punctuation omitted.) Matthews, supra at 408.

Based on Jordan and Matthews, we conclude that to prove intent the State must show the defendant intended an act, which is productive of violence likely to result in the destruction of life, or which places another in a reasonable apprehension of immediately receiving a violent injury. See also OCGA § 16-2-1. In addition, the State must prove the other essential elements of aggravated assault as alleged in the indictment. Jordan, supra.

In this case, the State alleged in the indictment that Osborne “did unlawfully . . . make an assault upon the person of [J. R.], with a handgun, a deadly weapon. . . .” We previously have held that “[t]his sufficiently charges an assault by way of either manner contained in the simple assault statute. . . .” Jordan, supra at 601. The State did not present evidence that J. R. was “in reasonable apprehension of immediately receiving a violent injury,” pursuant to OCGA § 16-5-20 (a) (2), which does not require that Osborne intend to injure. Nevertheless, the State presented evidence that Osborne, either with intent to injure or in a criminally negligent manner, attempted to commit a violent injury to J. R., pursuant to OCGA § 16-5-20 (a) (1). See Jordan, supra. On appeal, we will not determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence regarding Osborne’s intent. See Royal v. State, 217 Ga. App. 459, 460 (1) (458 SE2d 366) (1995). Thus, after viewing the evidence in the light most favorable to support the jury’s verdict, we conclude that on this record there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Osborne was guilty of aggravated assault. See Jackson v. Virginia, supra.

Decided October 8, 1997.

Anthony E. Cheatham, for appellant.

Tamhra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A1337.
    GRAVITT v. THE STATE.
    (492 SE2d 739)
   Johnson, Judge.

A jury found Charles Edward Gravitt guilty of two counts of cruelty to children and one count each of incest, aggravated child molestation, aggravated sodomy, and sexual battery related to his daughter and two counts of aggravated sexual battery and one count of cruelty to children related to his girl friend’s daughter. Gravitt appeals his convictions, and we affirm.

1. In his first enumeration of error, Gravitt contends the evidence was insufficient to support his convictions. On appeal of a criminal conviction based on a jury verdict, this Court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to support that verdict. Gable v. State, 222 Ga. App. 768, 769 (1) (476 SE2d 66) (1996). Viewed in this light, the evidence showed that Gravitt is the biological father of one of the victims. When his daughter was ten years old, Gravitt began touching her in inappropriate ways. When she was 12, Gravitt began having sexual intercourse and oral sex with his daughter. Gravitt would push his daughter’s head down on his penis and make her sodomize him. He also attempted anal intercourse with his daughter. Gravitt told his daughter he was preparing her for what men would expect of her.

During weekend visits with Gravitt, Gravitt insisted his daughter sleep with him and made his girl friends sleep on the floor or the sofa. He also encouraged her to drink alcohol. Gravitt continued to have sexual intercourse with his daughter until she turned 17.

Gravitt’s daughter never told anyone about the occurrences because she was scared and ashamed. She finally told her fiance that her father had been having sexual intercourse with her. Her fiance corroborated her admission about her father. She subsequently told law enforcement officials and her mother. The psychotherapist who treated and evaluated Gravitt’s daughter testified that Gravitt’s daughter told her that Gravitt had sexually abused her from age ten to seventeen. She concluded that the victim exhibited behavior consistent with victims of sexual abuse.

The other victim is the daughter of a woman with whom Gravitt lived during the summer of 1991. The victim was 13 years old at the time. She confirmed that when Gravitt’s daughter came to visit, her mom would sleep on the couch and Gravitt’s daughter would sleep with him. The victim’s mother gave consistent testimony as to the sleeping arrangements. On one occasion Gravitt fondled the victim, and on another occasion, Gravitt inserted his finger into her vagina. On a third occasion, Gravitt stuck the top of a lotion bottle inside her vagina. The victim told her mother, but her mother did not believe her.

A police investigator corroborated the allegations of both victims.

Similar transaction evidence revealed that in 1985 and 1986, Gravitt lived with another woman and her two daughters. Gravitt molested those two girls over a six-month period when the girls were approximately ten and eleven years old. Gravitt also had oral sex with one of the girls.

We find the evidence adduced at trial sufficient to authorize a rational trier of fact to find Gravitt guilty beyond a reasonable doubt of all the charges against him. See Gable, supra; Legg v. State, 207 Ga. App. 399, 400-401 (3), (5) (428 SE2d 87) (1993); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). While Gravitt challenges the credibility of the victims, “the weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to [her] own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.” (Citation and punctuation omitted.) Royal v. State, 217 Ga. App. 459, 460 (1) (458 SE2d 366) (1995).

2. In his second enumeration of error, Gravitt contends the trial court erred in refusing to allow him to present evidence of a prior false allegation by one of the victims. In Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989), the Supreme Court held that, subject to a threshold determination, evidence of prior false allegations by a victim does not fall within the proscription of rape-shield laws and that such evidence may be admitted. However, before admitting the evidence, the trial court must determine, outside the presence of the jury, that a reasonable probability of falsity exists. See Ellison v. State, 198 Ga. App. 75, 76 (1) (400 SE2d 360) (1990).

Outside the presence of the jury, Gravitt proffered evidence that a 1982 child molestation case involving his girl friend’s daughter had been dead-docketed. Gravitt offered this evidence to prove that the victim had made false allegations against her father in 1981. Gravitt admitted there was no explanation given for the dead docket and acknowledged that the victim was only three years old at the time.

Defense counsel admitted, “these just bring up the bare possibility of falsity. And I’m not sure, frankly, that in and of themselves they would reach the threshold requirement. . . .” The trial court determined that there was no reasonable probability that the previous allegations were false. Based on the evidence presented, we find the trial court did not err in excluding the proposed evidence.

3. In his third enumeration of error, Gravitt maintains the trial court erred in admitting evidence of similar transactions. We disagree.

“ ‘In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. . . . There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.’ [Cit.]” Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292) (1991).

A daughter of a woman with whom Gravitt had previously lived testified that when she was ten years old Gravitt touched her breasts and vagina throughout the time he lived with her mother. Likewise, a second daughter testified she was 12 or 13 years old when Gravitt touched her genital area and performed oral sex on her during that period. It is undisputed that Gravitt was never prosecuted for these offenses. The mother testified that her two daughters reported to her that Gravitt had committed sexual acts upon them.

We are satisfied that there exists a sufficient similarity or connection between the prior independent crimes and the offenses charged. All of the incidents involved Gravitt molesting young girls, either his own daughter or daughters of girl friends. Moreover, the rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses. Lumsden v. State, 222 Ga. App. 635, 636 (1) (475 SE2d 681) (1996). Thus, the trial court did not err in admitting this similar transaction evidence.

Decided October 9, 1997.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J, and Blackburn, J., concur.


text:
    A97A1390.
    LEMMING v. MORGAN.
    (492 SE2d 742)
   Johnson, Judge.

Larry Lemming appeals from the grant of summary judgment to Jackson Morgan in this action based on the alleged breach of an oral agreement.

Viewing the facts in the light most favorable to Lemming as nonmovant on a motion for summary judgment, the evidence shows that Lemming and Morgan entered into an oral partnership agreement. Lemming was to use his business connections and influence to locate real estate, assist Morgan in obtaining financing to purchase property, and then assist Morgan in reselling or developing the property. Lemming was involved in a divorce proceeding and was experiencing tax problems at the time the agreement was entered into and states, rather frankly, that he therefore did not want property titled in his own name. He and Morgan agreed to temporarily put title to the property in Morgan’s name. Morgan was to transfer one-half of his interest in the property to Lemming and split any proceeds earned from the developments with him “if and when” Lemming’s personal and tax problems subsided.

Over a four- or five-year period, Lemming located five properties for development. He helped Morgan obtain documents necessary for Morgan to secure financing and found buyers for some of the properties and for the timber on other parcels. All of the money used to purchase the properties was borrowed by Morgan. According to Lemming, his personal problems subsided, but Morgan refused to transfer one-half of his interest in the properties or split the proceeds from some of the developments. Lemming sued Morgan for fraud and breach of the alleged oral agreement, seeking judgment in an amount equal to one-half the value of the real estate or a decree transferring to him a one-half ownership interest in the properties. Morgan denied the existence of any such agreement and argued, alternatively, that if such an agreement did exist, Lemming was liable to him for one-half of all investment costs and expenses incurred and one-half of all liabilities, indebtedness and obligations related to the properties. Morgan moved for summary judgment, arguing that the claim is barred by the statute of frauds because the purported agreement was for the sale of lands, an interest in lands, or concerning lands, and because it could not be performed within one year. Morgan further argued the alleged agreement was too vague to be enforceable. The trial court granted Morgan’s motion for summary judgment.

1. Lemming argues that the statute of frauds does not apply in this case because he performed his obligations under the agreement. Under the circumstances presented here, his argument is without merit.

The statute of frauds requires that “[a]ny contract for sale of lands, or any interest in, or concerning lands” be in writing. OCGA § 13-5-30 (4); see East Piedmont 120 Assoc., L.P. v. Sheppard, 209 Ga. App. 664, 666 (434 SE2d 101) (1993). It is true that the statute of frauds does not extend to those cases “[wjhere there has been such part performance of the contract as would render it a fraud of the. party refusing to comply if the court did not compel a performance.” OCGA § 13-5-31 (3). However, a parol contract sought to be enforced based on part performance must be certain and definite in all essential particulars. See Bridges v. Reliance Trust Co., 205 Ga. App. 400, 402 (2) (422 SE2d 277) (1992). To be valid, an agreement to convey an interest in land must be certain enough to enable either party to enforce it according to its terms. See Pettit v. Gray, 211 Ga. App. 439 (439 SE2d 673) (1993); Burns v. Pugmire, 194 Ga. App. 898, 899 (1) (392 SE2d 62) (1990). For example, the failure of the parties to agree to the specifics of payment is fatal to the agreement where it is sought to be enforced on that basis. See Pettit, supra at 440.

The alleged oral agreement in this case was not sufficiently certain or definite to be enforceable. The agreement Lemming seeks to enforce had no specific provisions regarding when transfer of title, division of proceeds, or sale of the properties was to take place; how or when development was to take place on any of the properties; how development or other costs of the ventures were to be allocated; how, when or by whom it would be decided whether the properties would be sold or whether one-half of Morgan’s interests in the various properties would be transferred to Lemming; or how proceeds would be calculated. Testimony that Lemming was to get one-half of the proceeds “if and when” his personal and tax problems subsided is too vague to be enforceable. See, e.g., Farmer v. Argenta, 174 Ga. App. 682, 683-684 (331 SE2d 60) (1985) (physical precedent only). While the doctrines of reasonable time or reasonable requirements might supply some details to an agreement, “indefiniteness in subject matter so extreme as not to present anything upon which the contract may operate in a definite manner renders the contract void.” (Citations and punctuation omitted.) Cherokee Falls Investments v. Smith, 213 Ga. App. 603, 605 (1) (445 SE2d 572) (1994).

Decided October 9, 1997

Wade C. Hoyt III, for appellant.

Davidson & Strain, William E. Davidson, Jr., for appellee.

The fact that Lemming may have performed his obligations under the purported agreement does not require a different outcome. Although in some contexts performance may supply the definiteness required for an enforceable contract, in this case it does not. The deficiencies here were not cured by performance “because the agreement relied upon was so vague, indefinite and uncertain as to make it impossible for courts to determine what, if anything, was agreed upon, therefore rendering it impossible to determine whether there had been performance.” (Citation and punctuation omitted.) Jackson v. Williams, 209 Ga. App. 640, 643 (1) (434 SE2d 98) (1993). It has not been shown, with any reasonable certainty, what the parties were obligating themselves to do. See Cherokee Falls Investments, supra. Since there is no evidence of past performance sufficient to remove the agreement from the statute of frauds, the trial court did not err in granting Morgan’s motion for summary judgment. See Bagwell-Hughes, Inc. v. McConnell, 224 Ga. 659, 661-662 (164 SE2d 229) (1968).

It has not escaped our notice that Lemming virtually admits that he sought to mislead the government and his personal creditors about his assets and contingent assets in the way he attempted to structure his “agreement” with Morgan. However, because the principles outlined above resolve the issue of the enforceability of the purported agreement, it is not necessary for us to address the issue of whether such an apparently illegal contract would ever be enforceable.

2. Lemming contends the trial court erred in failing to consider the issue of performance in granting summary judgment to Morgan. Although the trial court does not discuss performance in its order, Lemming presented the argument to the trial court, and we will presume the trial court considered it in reaching its decision. See generally Washington State Employees &c. v. Robinson, 206 Ga. App. 782 (1) (427 SE2d 15) (1992); Bimbo Builders v. Stubbs Properties, 158 Ga. App. 280, 282 (2) (279 SE2d 730) (1981). We find no error.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A1659.
    CLEGHORN v. WINN DIXIE STORES, INC.
    (492 SE2d 745)
   Judge Harold R. Banke.

Frank Cleghorn sued Winn Dixie Stores, Inc. to recover for injuries allegedly sustained in a slip and fall in the frozen food department. Cleghorn appeals the summary judgment awarded to Winn Dixie.

A Winn Dixie employee, Mike Singletary, was using an oxygen acetylene welding torch to repair a leak in a freezer. Before Singletary commenced work, he placed four yellow wet floor cones and four shopping carts to cordon off about a fifteen-foot work area. Cleghorn noticed an employee working on the cooler with a torch and heard a noise that sounded like welding. Despite observing at least one wet floor cone, and one cart, Cleghorn elected to enter the barricaded area to shop for vanilla ice cream. Cleghorn admitted that he saw a sign cautioning “Wet Floor” but proceeded anyway after noticing that the floor appeared dry. Cleghorn, who was wearing cowboy boots, testified that he left his grocery cart and entered the area “very carefully” because he knew he had to be extra careful on a wet floor. As Cleghorn turned to return to his cart, he slipped and fell onto an oxygen acetylene tank. Singletary testified that Cleghorn fell inside the area barricaded by the shopping carts and wet floor cones. According to Singletary, the floor area was damp from being mopped by another employee. According to Cleghorn, he did not see any water or foreign substance, does not recall where he was looking when he fell, and admits that nothing obstructed his view. Winn Dixie offered into evidence photographs depicting the cordoned area as it purportedly appeared immediately before and after Cleghorn’s fall. Held:

In his sole enumeration of error, Cleghorn contends that the trial court erred in finding that he had actual notice of the hazard. The owner or occupier of premises is under a duty to keep its premises reasonably safe and to warn of hidden dangers or defects not observable to invitees who are exercising ordinary care for their own safety. Newell v. Great A & P Tea Co., 222 Ga. App. 884 (1) (476 SE2d 631) (1996); OCGA § 51-3-1. However, a property owner is not an insurer of the safety of its invitees. Wells v. C & S Trust Co., 199 Ga. App. 31 (403 SE2d 826) (1991). The mere showing of the occurrence of an injury does not create a presumption of negligence. Rather, the true ground of liability is the owner’s or occupier’s superior knowledge of the hazard and the danger therefrom. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994).

In this case, in order to recover, Cleghorn would have to show that Winn Dixie had actual or superior knowledge of the hazard and that he lacked knowledge of that hazard or was prevented by Winn Dixie from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Hudson v. Quisc, Inc., 205 Ga. App. 840 (424 SE2d 37) (1992). By Cleghorn’s own admission, he observed the wet floor sign, but apparently decided that he could safely traverse the area by walking “very carefully.” Cleghorn conceded that nothing obstructed his view of the floor and made no claim that he had been distracted by an employee. Because Cleghorn’s knowledge of the wet floor was at least equal to that of Winn Dixie, his recovery was foreclosed. Bruno’s, Inc. v. Pendley, 215 Ga. App. 108, 109 (449 SE2d 637) (1994); compare Grovner v. Winn Dixie Stores, 218 Ga. App. 495, 496 (462 SE2d 427) (1995) (summary judgment precluded by disputed factual issue as to the visibility of floor and warning signs). Having successfully pierced an essential element of Cleghorn’s case, Winn Dixie was entitled to summary judgment as a matter of law. OCGA § 9-11-56 (c); McGonagil v. Treadwell, 216 Ga. App. 850, 853 (1) (456 SE2d 260) (1995).

Decided October 9, 1997.

Terry J. Marlowe, for appellant.

Clyatt, Clyatt, Wallace & DeVaughn, Russell C. Wallace, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A2225.
    RINKER v. THE STATE.
    (492 SE2d 746)
   Johnson, Judge.

Gary Rinker appeals from his conviction of simple battery.

1. Rinker contends the trial court erred in denying his request to poll the jury. We agree.

“The right to a poll of the jury is a material right derived from the common law. ... In criminal cases the right to poll the jury is not discretionary, and [the] denial of that right when timely requested is reversible error. ... A request for poll is timely when made after the verdict is read. It is not timely made after the jury disperses or after sentence is passed.” (Citations and punctuation omitted.) Favors v. State, 234 Ga. 80, 88 (6) (214 SE2d 645) (1975).

After the verdict was read and accepted, without objection, as to form, the trial judge did not excuse the jury. Instead, the jury remained in the jury box as the trial judge began the sentencing phase, hearing evidence regarding medical expenses incurred by the victim. One of the jurors interjected that she would like to ask a question. For whatever reason, the court allowed the juror to speak, and the juror asked if the documents being discussed were medical records and whether they had been part of the evidence at trial. After being told they had not, the juror requested that the jurors be allowed to see the documents, and the trial court apparently allowed the jurors to see the exhibits being discussed. Shortly thereafter, a different juror informed the court that the jurors had something they wanted the judge to see. The judge then accepted and read a note from the jury, and called Rinker, who represented himself at trial, and the prosecutor to the bench, observing that he had a comment written by the jury regarding the verdict. Having read the note, Rinker immediately requested that the jury be polled. After initially opining that he did not think Rinker was entitled to poll the jury because the offense was a misdemeanor, the judge ultimately denied the request as untimely. The jury had not yet been discharged and sentence had not been passed, so Rinker’s request was not untimely, and he should have been allowed to poll the jury. Because Rinker was thus denied a material right, his conviction must be reversed.

Decided October 9, 1997.

James E. Millsaps, for appellant.

Fredric D. Bright, District Attorney, R. Michael Gailey, Jr., Assistant District Attorney, for appellee.

2. Rinker also complains that the prosecutor interjected his own testimony at trial when cross-examining witnesses. We have reviewed those portions of the transcript about which Rinker complains. Even acknowledging the breadth of the scope of permissible cross-examination, the prosecutor’s comments, poorly camouflaged as introductions to questions, certainly appear to this Court to approach testimony. Nonetheless, Rinker did not object at trial. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.” (Citation and punctuation omitted.) Clark v. State, 206 Ga. App. 10, 12 (2) (424 SE2d 310) (1992).

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.


author: Andrews, Chief Judge.

text:
    A97A1321, A97A1401.
    HUDSON et al. v. SANTANGELO; and vice versa.
    (492 SE2d 673)
   Andrews, Chief Judge.

In Case No. A97A1321, Hudson and Marshall IV, co-executors for the estate of Asa Marshall III, appeal from the judgment entered on the jury’s verdict finding Marshall III (hereinafter Marshall) liable for damages suffered by Santangelo when he fell through a deck railing at Marshall’s home. Santangelo cross appeals in Case No. A97A1401.

Case No. A97A1321

1. The first enumeration is that the trial court erred in denying Marshall’s motions for directed verdict and judgment notwithstanding the verdict.

In deciding whether the court should have granted a motion for j.n.o.v., “[t]he primary question for determination is whether the evidence introduced, with all reasonable deductions . . . demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. The motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” (Citations and punctuation omitted.) Famiglietti v. Brevard Medical Investors, 197 Ga. App. 164 (1) (397 SE2d 720) (1990). Accordingly, the evidence at trial, viewed in the light most favorable to the jury’s verdict, was as follows.

In 1985, Marshall had overseen the construction of a new home for him and his wife. The framing carpentry work on the house was done by Crowe, a carpenter for 35 years, pursuant to plans prepared by an architect. After the framing was complete, Marshall used three subcontractors to finish the house, Bryant for sheetrock, Blair for aluminum siding, and Daniel for finish carpentry.

The house was titled in Marshall’s name only and Mrs. Marshall did not participate in the oversight of the construction. The house included a narrow wooden deck with a railing running along the rear of the upstairs bedroom. The deck also covered a screened porch, where the deck widened.

Daniel, who worked for the school system as a cabinet maker, had been doing trim carpentry for over 15 years. He was hired by Marshall to do the interior woodwork and the exterior railings, including that on the upstairs deck. He designed and built a sample 36-inch high railing, which complied with the building code as Daniel understood it, and submitted it to Marshall for his approval of the design. Daniel also picked the material for the railing, western red cedar.

The rail was designed as a “functional” railing whose purpose was “[s]afety, primarily,” since Mrs. Marshall was expecting the couple’s first child. Daniels testified that the railing “should withstand normal use, which would be people walking by, leaning on it, or perhaps even sitting on it.” The four-by-four inch posts were placed seven or eight feet apart, affixed to structural members of the house. The balusters were affixed to a one-by-two inch strip of wood with eight penny galvanized nails and the strip then affixed to the two-by-four inch top and bottom rails by screws. The completed section of the railing would then be affixed to the posts by “toenailing,” or driving in from the top, bottom and side at least three to four 16 penny hot dipped galvanized nails. The railing, along with other exterior wood trim, was originally painted and had been repainted in 1988 and 1991. Building inspectors checked on the house’s construction as it was built and it passed inspection.

Because of storm damage to some of the siding in the spring of 1991, Marshall contacted Blair, who had installed the siding, and retained him to make needed repairs.

Santangelo had been working for Blair Siding as an installer since 1984. Generally, he subcontracted jobs from Blair. Because he and his fiance, Stowe, were moving to South Carolina shortly and subcontracting jobs took two to three weeks, in May 1991, Santangelo was working for Blair as an employee, doing repair work and odd jobs. On May 15, Santangelo met Blair at the shop at 8:00 a.m. and they proceeded to the Marshalls to do the needed repairs. Blackshear, a friend of Santangelo who was working for him as his assistant, accompanied them. Santangelo was familiar with the property since he had previously worked there, finishing up the siding on the house and installing the siding on the outbuilding.

Earlier, Blair had gone out to the property and walked it with Marshall to see what needed to be done. Marshall mentioned several specific items, including the outbuilding siding and a leaking gutter running along the edge of the deck. In addition, Blair put on the work order which he issued to Santangelo some other small repairs which were not mentioned by Marshall but which Blair had noticed. On May 15, Blair took Santangelo around the property and showed him the jobs to be done, including the repair of the gutter on the back of the deck.

Marshall was out of town on May 15 and Mrs. Marshall left shortly after the men arrived to begin work.

Santangelo and Blackshear proceeded to repair siding on the side of the screened porch and the outbuilding. Blair had to return to the shop and left the two men working.

They had placed a ladder against the deck near the screened porch and had climbed over the railing several times during their work. As Santangelo was working on damaged siding on the deck, Blackshear came up the ladder tb ásk him the location of the needed gutter repair. According to Santangelo, hé merely put his hand on the rail after he had “walked over to the railing, looked over and said, Tut the screw right over . . .’ and that’s all, that was it. The railing dropped. It didn’t ... we didn’t have any weight going forward because the railing dropped straight down and flipped right over.” Blackshear testified that Santangelo was standing beside him, leaning slightly forward and pointing to the gutter when he fell off the deck and was seriously injured.

Before the fall, Santangelo and Blackshear had not noticed any loose or rotten looking railing. In fact, Santangelo testified that the posts of the railing were “solid as a rock.” Marshall had not been on the deck since its original completion, but he and Mrs. Marshall periodically looked at the deck and railing from their bedroom adjacent to it and noticed nothing wrong with it. Sanders, the Marshalls’ housekeeper, regularly washed windows from and swept off the deck, pushing the debris under the railing onto the ground. The railing appeared fine to her before the fall.

After the fall, Blackshear returned to the house to get their tools and he looked at the railing section which had fallen and described the ends of the railing where it had broken away as “darkish black” and said a piece of nail in the railing had corroded.

Mrs. Marshall examined the railing after visiting Santangelo in the hospital and did not see any rotten areas. Marshall, upon returning from out of town, also inspected tfie fallen railing and found it basically intact and said it looked like it had “pulled loose from the posts that were holding it, torn out.” Sanders also looked at the rail after the fall and stated it was in one piece and did not look rotten. Two weeks after the fall, Daniel examined the railing at Marshall’s request, finding it in one piece on the ground with several nails in it, looking as if it had pulled loose. He did not find any indications of rot.

At trial, Santangelo called Bayless, who owned an Archadeck franchise which designed and built decks. Although Bayless considered himself an expert on decks and railings, he was never tendered to the court and the trial court never ruled on his qualifications to give expert testimony, as was required. Newberry v. D. R. Horton, Inc., 215 Ga. App. 858 (1) (452 SE2d 560) (1994).

Considering his testimony as an ordinary witness, Bayless stated he had not seen the actual railing, but had read Daniel’s deposition and examined photos of the house taken after the railing had fallen. He disagreed with the use of nails instead of screws to attach the railing to the posts, although he offered no testimony concerning the standard in the industry or code requirements. Crowe, the framing carpenter, stated that use of 16 penny nails as fasteners was the standard practice in the carpentry industry and that, when he was called by Marshall to repair the railing, he used such nails. When he examined the fallen rail, he found it intact, with only the top two-by-four rail cracked on a corner where it hit the ground. He did not see any rot. He replaced the upper and lower two-by-fours and used the same pickets, attaching the railing to the original posts.

2. The pretrial order stated Santangelo’s contention that “[t]he deck and the hand railing affixed to it were negligently constructed and maintained. . . . Plaintiff contends that the injuries and damages from which he suffers are a direct result of and proximately caused by the negligence of Asa Marshall III . . . in failing to keep the premises reasonably safe by permitting a dangerous condition to exist of which [Marshall] had actual or constructive knowledge and in failing to warn plaintiff of the unsafe condition of the hand rail on the deck. Further, Mr. Marshall served as building contractor, and therefore, is liable for the negligence in the design, installation and construction of the deck and rail.”

The basis for Marshall’s motion for directed verdict wás that no showing had been made of Marshall’s knowledge of any defect in the rail, as required for a cause of action under OCGA § 51-3-1, which provides that an owner or occupier is liable to invitees for “failure to exercise ordinary care in keeping the premises . . . safe.” The basis for the owner’s liability is the owner’s superior knowledge of the danger or defect. Armenise v. Adventist Health System &c., 219 Ga. App. 591, 592 (466 SE2d 58) (1995); Stouffer Corp. v. Henkel, 170 Ga. App. 383 (1) (317 SE2d 222) (1984).

(a) The only evidence put forward by Santangelo concerning Marshall’s actual knowledge of problems with the railing was a statement made by Mrs. Marshall while she was visiting Santangelo in the hospital. Stowe, who was present during the visit, testified that Mrs. Marshall said that “they knew that the railing was bad and that they should have already had it fixed, it should have been torn down.” Santangelo recalled Mrs. Marshall saying the railing was “an accident waiting to happen. We should have replaced it years ago.”

Although Mrs. Marshall denied making any such statement, we assume for the purpose of this discussion that she did. Santangelo contends that this admission of Mrs. Marshall is binding on Marshall because, as his wife, she was his agent. While an agent may bind her principal, there must first be proof of the agency relationship. Being husband and wife will not, alone, show such agency. Vickery Ins. v. Chambers, 215 Ga. App. 48, 50 (449 SE2d 885) (1994); see Slaughter v. Slaughter, 122 Ga. App. 374, 376 (1) (177 SE2d 119) (1970). Also, the statement itself, standing alone, is insufficient to prove agency, Weiner Brothers Co. v. Tucker, 139 Ga. 596 (1) (77 SE 811) (1913); Wofford Oil v. Story, 52 Ga. App. 496, 499 (1-3) (183 SE 840) (1936).

Here, both Marshall and Mrs. Marshall testified that he took care of the original construction and upkeep of the premises, while she took care of the interior of the home. The evidence does not indicate that Marshall authorized Mrs. Marshall to make any statements regarding the construction or upkeep of the exterior of the house. Absent Mrs. Marshall’s statement, there was no evidence that Marshall had actual knowledge of any problem with the railing.

(b) Apparently in an attempt to show constructive knowledge of the defect, see Armenise, supra at 593, Santangelo contended below that, since Marshall served as his own general contractor, he was conclusively presumed to be aware of the defective construction of the railing.

First, although Santangelo relies on Bayless’ testimony to show defects in the construction, as pointed out earlier, Bayless did not testify as an expert. In order to show negligent construction, “ ‘it is essential to present competent evidence as to the acceptability of specific professional conduct. [Cit.] Our law requires building contractors to exercise that degree of care and skill as is ordinarily employed by other contractors under similar conditions and like circumstances. [Cit.] Further, the standard of care must be established through expert testimony. Newberryl, supra].’ ” (Emphasis supplied.) Rentz v. Brown, 219 Ga. App. 187, 188 (464 SE2d 617) (1995). Here, as in Rentz, in addition to being a non-expert, the witness presented by plaintiffs merely stated what he might have done differently in constructing the railing, but did not show the applicable standard of care in the industry or why, as constructed, the railing did not comply with that standard. See also Bilt Rite &c. v. Gardner, 221 Ga. App. 817 (472 SE2d 709) (1996); McCurley v. Ludwig, 215 Ga. App. 798 (1) (452 SE2d 554) (1994).

(c) Santangelo and Blackshear, along with Marshall’s witnesses, all testified that, by looking at the railing, they were unable to detect any defect in it.

Even assuming that there was some rotting on the ends of the railing which was noticeable as it lay on the ground after it fell, Santangelo made no showing that such a condition had existed for a sufficient period of time so that Marshall should have discovered and removed the hazard by exercising ordinary care to inspect it. Armenise, supra at 593; Nelson v. Polk County &c., 216 Ga. App. 756, 759 (1) (456 SE2d 93) (1995).

Decided September 8, 1997

Reconsideration dismissed October 10, 1997

Miller & Towson, Wallace Miller III, James V. Towson, for appellants.

Reynolds & McArthur, W. Carl Reynolds, Katherine L. McArthur, Bradley J. Survant, Charles M. Cork III, for appellee.

3. Further, there is no evidence indicating that Blair was acting in any capacity other than as an independent contractor in making the repairs to the siding and gutter. Legally, of course, if Blair had been an employee of Marshall while making the repairs, Marshall would have been the statutory employer of Santangelo and immune to tort liability pursuant to OCGA § 34-9-11. Green v. Moreland, 200 Ga. App. 167 (1) (407 SE2d 119) (1991).

“An [independent] contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract. [Cits.]” Amear v. Hall, 164 Ga. App. 163, 167 (2) (296 SE2d 611) (1982); Green, supra.

Santangelo therefore had the duty to inspect the deck and railing area in carrying out the work and cannot impose on Marshall liability for the alleged defect which he also failed to notice.

We conclude that Marshall was entitled to a j.n.o.v. and the trial court is directed to enter it upon remand.

4. This holding makes it unnecessary to consider the remaining enumerations of error in Case No. A97A1321.

Also, it renders moot those raised in Case No. A97A1401. Two of those enumerations deal with alleged errors in the jury charge. The remaining two are that the court erred in not allowing Santangelo to introduce alleged impeaching evidence of Blair and in allowing Blair to testify concerning earlier reckless acts of Santangelo.

Since we have determined as a matter of law that a verdict was demanded for Marshall, viewing all evidence in Santangelo’s favor, these matters are moot.

Judgment reversed and remanded with direction in Case No. A97A1321. Appeal dismissed as moot in Case No. A97A1401.

Birdsong, P. J., and Eldridge, J., concur.

       We have not considered the affidavit of a juror which was submitted with the motion for j.n.o.v. in an attempt to impeach the jury’s verdict. Consolidated American Ins. v. Spears, 218 Ga. App. 478, 480 (1) (462 SE2d 160) (1995).

       Mrs. Marshall was named as a defendant along with Mr. Marshall, who died before trial and for whom the co-executors were substituted. During trial, a dismissal with prejudice of the action against Mrs. Marshall was filed by Santangelo.

       It is not disputed that Santangelo was awarded workers’ compensation benefits as a Blair employee.