author: Eldridge, Judge. Birdsong, Presiding Judge,

text:
    A97A2562.
    PERTON et al. v. MOTEL PROPERTIES, INC.
    (497 SE2d 29)
   Eldridge, Judge.

On February 7, 1994, appellee-defendant Motel Properties, Inc. d/b/a Comfort Inn (“Motel Properties”) rented to Selma Perton and Irwin Perton, appellants-plaintiffs, two bicycles for their use. After riding her bicycle for a short distance, Mrs. Perton felt that something was wrong with the bicycle. On inspection of the bicycle, neither of the Pertons could find any patent defect. However, Mrs. Perton decided to return the bicycle. During the return trip, the bicycle suddenly and completely malfunctioned and threw Mrs. Perton to the ground, causing her serious injury.

The plaintiffs sued the defendant for negligently maintaining, renting, and inspecting the bicycle and renting to Mrs. Perton a defective bicycle.

On deposition, Mrs. Perton testified that, in her opinion, the front wheel seemed wobbly and the brakes were not good. She stated that when she went to return the bicycle, she did not know that it was unsafe, but that she felt uncomfortable with the bicycle and decided to return it.

Sammie Yawn, who rented the bicycles to the plaintiffs for the defendant, testified that he made a daily visual inspection of the bicycles, but made no manual testing or operational inspection. He discovered no defects in his cursory visual inspection.

The defendant moved for and was granted summary judgment. Plaintiffs filed their timely notice of appeal.

Plaintiffs set forth their enumerations of error on two grounds, which both assert that the trial court erred as a matter of law in granting summary judgment on the issue of negligence. We agree.

(a) The first matter that must be dealt with in this analysis is the determination of the legal effect of OCGA § 44-12-63 as to the legal duties imposed upon a bailor. Motel Properties, in renting the bicycle, acted as a bailor for hire. Heughan v. State, 82 Ga. App. 640 (61 SE2d 685) (1950). OCGA § 44-12-63 sets forth the obligations imposed by law arising from such legal relationship. “The obligations of the bailor of things are: (1) To do no act to deprive the hirer of the use and enjoyment of the chattel during the period of the bailment; (2) To keep the thing in suitable order and repair for the purposes of the bailment; and (3) To warrant the right of possession and that the thing bailed is free from any secret fault rendering it unfit for the purposes for which it is hired.” OCGA § 44-12-63; see Mark Singleton Buick, Inc. v. Taylor, 194 Ga. App. 630 (391 SE2d 435) (1990); see also Brannan & Holder v. Moore, 135 Ga. 517, 519 (69 SE 820) (1910).

The bailor’s liability for defective rented property arises partly from an implied warranty created by the legal relationship alone and partly as a breach of the common law duties in negligence owed to the public in general. Seaboard Coast Line R. v. Mobil Chem. Co., 172 Ga. App. 543 (323 SE2d 849) (1984); see Southeastern Air Svc. v. Crowell, 88 Ga. App. 820 (78 SE2d 103) (1953). Thus, the relationship of bailor-bailee causes certain duties of the exercise of ordinary care to arise that are greater than are owed to the general public. See Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480 (164 SE2d 318) (1968); Hertz Driv-Ur-Self &c. v. Benson, 83 Ga. App. 866, 873-875 (3) (65 SE2d 191) (1951).

(b) To determine what duties of ordinary care are owed in negligence, it must be determined what effect legally imposed warranties have. Breach of implied warranty arises from the relationship of bailor-bailee when the rental property is defective, because the bailor warrants that the property is free of hidden defects and fit for the purposes for which it is hired. See Heyde v. Xtraman, Inc., 199 Ga. App. 303, 305 (404 SE2d 607) (1991); Hall v. Gardens Svcs., 174 Ga. App. 856, 858 (332 SE2d 3) (1985); Redfern Meats v. Hertz Corp., 134 Ga. App. 381, 384 (215 SE2d 10) (1975); Southern Protective Products Co. v. Leasing Intl., 134 Ga. App. 945, 946-948 (3) (216 SE2d 725) (1975); Cooper v. Layson Bros., 14 Ga. App. 134, hn. 2 (80 SE 666) (1914). While the bailor warrants that the rental property is free from latent defects, the bailor at the same time impliedly warrants that the property is free from patent defects as well, because the existence of a patent defect renders the property unfit and unsuitable for the purpose for which it was rented, which violates the express language of the statute as to warranty of fitness. Brannan & Holder v. Moore, supra at 518-519; Queen v. Patent Scaffolding Co., 46 Ga. App. 364 (167 SE 789) (1933); Parker v. Loving & Co., 13 Ga. App. 284 (79 SE 77) (1913); see also Southern Protective Products Co. v. Leasing Intl., supra at 948; Hall v. Gardens Svcs., supra at 858; Hertz DrivUr-Self &c. v. Benson, supra at 874.

Georgia law has interpreted the breach of a statutorily imposed warranty, whether express or implied, as giving rise to strict liability. ‘Whether it be tort or contract, a breach of warranty gives rise to strict liability, which does not depend upon any knowledge of defects on the part of the [bailee], or any negligence.” (Punctuation omitted.) John Deere Co. v. Lindsey Landclearing Co., 122 Ga. App. 827, 831 (2) (178 SE2d 917) (1970); see also Pierce v. Liberty Furniture Co., 141 Ga. App. 175, 177 (3) (233 SE2d 33) (1977).

While the statute imposes warranties that arise out of such legal relationship of bailor-bailee, the bailee by express contract provisions can limit or waive such protection, not only in warranty but also in tort. Benford v. RDL, Inc., 223 Ga. App. 800 (479 SE2d 110) (1996); Lightsey v. Nalley Equip. Leasing, 209 Ga. App. 73 (432 SE2d 673) (1993); Mercedes-Benz Credit Corp. v. Shields, 199 Ga. App. 89 (403 SE2d 891) (1991); Petroziello v. U. S. Leasing Corp. &c., 176 Ga. App. 858 (338 SE2d 63) (1985); Hall v. Gardens Svcs., supra. However, a contract exclusion or exculpatory clause which is contrary to public policy is void. Mark Singleton Buick, Inc. v. Taylor, supra at 632; Hall v. Gardens Svcs., supra at 857-858.

As a matter of law, the trial court erred in finding that strict liability did not apply.

(c) The bailor has several duties imposed by statute, which give rise to negligence upon breach of such duties. The bailor must exercise ordinary care to inspect and ascertain that the rental property has no hidden defects that would render it dangerous. Hertz Driv-UrSelf &c. v. Benson, supra; see also Yale & Towne, Inc. v. Sharpe, supra; Parker v. Loving & Co., supra. The statute imposes a duty to properly care for, to inspect, and to maintain the property in a defect-free condition prior to rental. OCGA § 44-12-63 (2).

“[D]ue care on the part of the bailor requires him to examine the thing bailed for the purpose of seeing that it has no hidden defects which would render it unsuitable for the purposes for which it was hired.” (Punctuation omitted.) Hertz Driv-Ur-Self &c. v. Benson, supra at 874; accord Southeastern Air Svc. v. Crowell, supra at 823; Parker v. Loving & Co., supra. “[A] bailor ... is liable for any injury or damage which results from a latent defect of which the bailee has no knowledge and the consequences of which he could not avoid through the exercise of ordinary care. . . . Thus, it is essential that a bailor use ordinary care to inspect the bailed article before delivery to ascertain if it was in a reasonably safe condition to avoid injury to another.” Hall v. Skate Escape, Ltd,., 171 Ga. App. 178, 179 (319 SE2d 67) (1984); accord Yale & Towne, Inc. v. Sharpe, supra at 491; see also Queen v. Patent Scaffolding Co., supra at 368; Hertz Driv-Ur-Self &c. v. Benson, supra at 874; Parker v. Loving & Co., supra at 286.

“It was the duty of the defendant to deliver the [rental property] in such a condition that [plaintiff] could use it with safety.” Queen v. Patent Scaffolding Co., supra at 368; see also Savannah, Fla. &c. R. Co. v. Booth, 98 Ga. 20, 23-24 (25 SE 928) (1895). “The plaintiff makes out [her] case by showing the injury and that the defendant was lacking in ordinary care, in furnishing [defective rental property] unsuited for the purposes for which it was hired. Negligence is not presumed, and must affirmatively appear from the plaintiff’s proof.” Cooper v. Layson Bros., supra at 135-136; OCGA § 9-11-56 (e). Plaintiff has produced such evidence in response to the motion for summary judgment. OCGA § 9-11-56 (e).

A bailor, as a matter of law, is presumed to have constructive knowledge of all defects that a reasonable inspection would reveal in the exercise of ordinary care, because the bailor is under a statutory duty to inspect for both patent and latent defects prior to renting the property. Parker v. Loving & Co., supra at 286; see also Savannah, Fla. &c. R. Co. v. Booth, supra at 23-24. The amount of care that the bailor should exercise in discovering a defect is a factual question for the jury. Hertz Driv-Ur-Self &c. v. Benson, supra.

The evidence in this case is that the bicycle had a latent defect at the time that Motel Properties rented the bicycle, which it failed to discover on a cursory inspection. Motel Properties violated its statutory duties in (1) failing to maintain the bicycle in a fit condition to rent, (2) failing to inspect and to discover the latent defect prior to renting the bicycle, and (3) renting the bicycle in a dangerous condition so that it was not fit for the purpose for which it was rented. The evidence raises factual issues for the jury that such acts or omissions on the part of Motel Properties occurred prior to the rental.

(d) If the plaintiff discovers or should have discovered the existence of a patent defect through the exercise of ordinary care, then such failure to exercise ordinary care for her own safety may insulate the bailor from liability in negligence, because the failure to avoid the danger is the proximate cause of the injury. Parker v. Loving & Co., supra at 286; Queen v. Patent Scaffolding Co., supra. The amount of care that a bailee-plaintiff ought to have exercised to discover a patent defect is a jury question. Parker v. Loving & Co., supra at 286.

“[Kjnowledge of [a] defect should not be confused with knowledge of danger. [Cit.]” (Punctuation omitted.) Rich’s, Inc. v. Townsend, 94 Ga. App. 761, 766 (96 SE2d 332) (1956); accord Mathis v. Gazan, 51 Ga. App. 805, 808 (181 SE 503) (1935). “[Ojrdinarily, knowledge of a defect is not necessarily knowledge of danger inherent in the defect.” (Punctuation omitted.) Pritchett v. Hartwell Entertainment Group, 221 Ga. App. 708, 709 (472 SE2d 512) (1996); accord Soto v. Roswell Townhomes, 183 Ga. App. 286, 287 (358 SE2d 670) (1987); see also Wade v. Roberts, 118 Ga. App. 284 (163 SE2d 343) (1968).

However, the evidence showed that this was a latent defect in the bicycle that Motel Properties failed to discover upon its cursory inspection immediately prior to rental. The plaintiff felt that something was “wrong” with the bicycle, but an uneasy feeling is not actual knowledge of a latent defect. Neither she nor her husband, upon the exercise of a manual and visual inspection, could detect any patent or latent defect. She had no awareness of a specific danger nor an appreciation of the risk that, if the bicycle malfunctioned while she was riding it, she could be thrown to the ground. Therefore, the plaintiffs produced evidence of lack of knowledge and of appreciation of the danger, as well as of the exercise of ordinary care, which showing created material issues of fact on summary judgment as to the affirmative defense of contributory negligence.

(e) Plaintiff made an inspection and, finding no defect, remounted the bicycle, which she rode until she was injured. Such facts do not constitute an assumption of the risk as a matter of law.

• The Supreme Court in Vaughn v. Pleasent, 266 Ga. 862, 863 (471 SE2d 866) (1996), held that before the affirmative defense of assumption of the risk can bar recovery, there must be evidence that “the plaintiff had actual knowledge of the dangerous situation that resulted in [her] injury, and an appreciation of the risks associated with that dangerous situation.” (Emphasis supplied.) “The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that [she,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks. Knowledge of the risk is the watchword of assumption of [the] risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities.” (Citations, punctuation and footnotes omitted; emphasis in original.) Id. at 864; see also Smith v. Mangram, 222 Ga. App. 585, 586 (474 SE2d 758) (1996); York v. Winn-Dixie Atlanta, 217 Ga. App. 839 (459 SE2d 470) (1995); Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 94-95 (3) (449 SE2d 618) (1994).

“As a general rule, whether a party assumed the risk of [her] injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence. Taft v. Taft, 209 Ga. App. 499, 500 (433 SE2d 667) [(1993)].” Turner v. Sumter Self Storage Co., supra at 94 (3). This is not such a case.

In this case, plaintiff was not aware of a specific danger or defect. Seibers v. Dixie Speedway, 220 Ga. App. 811, 813 (3) (470 SE2d 452) (1996); Turner v. Sumter Self Storage Co., supra at 94. While Motel Properties, at trial, may be able to prove this affirmative defense, it has failed to prove the essential elements of the defense to impose the bar as a matter of law on motion for summary judgment. The trial court erred in granting summary judgment on either assumption of risk, contributory negligence, or negligence.

Judgment reversed.

Birdsong, P. J, concurs specially. Ruffin, J., concurs in the judgment only.

Birdsong, Presiding Judge,

concurring specially.

Although I agree that summary judgment was not warranted in this case, I write separately to address paragraph (a) of the majority opinion because the issue of strict liability is not properly before this Court since the Pertons’ response to Motel Properties’ memorandum of law withdrew this cause of action from their complaint: “2. Strict Liability Count III. Plaintiff withdraws this Count as a cause of action.” Therefore, the trial court was without authority to rule on the validity of strict liability as a cause of action in this case, and review of the trial court’s order shows that it did not rule on that issue: The lower court merely stated that, “[i]n its motion, the defendant showed the Court that the doctrine of res ipsa loquitur is not applicable to this case [cit.], and that Georgia law does not provide for strict liability in a case such as this. [Cit.]” This statement is a narrative of the posture of the case, and examination of the entire order shows it did not constitute a ruling on the merits of strict liability as a cause of action. Consequently, as this issue was not ruled upon by the trial court, it is not ripe for appellate review. Devins v. Leafmore Forest Condo. Assn. &c., 200 Ga. App. 158, 159 (3) (407 SE2d 76). “[T]his court does not render advisory opinions.” Chambers v. State, 204 Ga. App. 396 (420 SE2d 393).

Decided February 11, 1998.

Zipperer & Lorberbaum, Steven L. Beauvais, Eric R. Gotwalt, for appellants.

Woodall & Mackenzie, John T. Woodall, Peter A. Giusti, for appellee.

Further, the Pertons enumerated as error only that the trial court erred by deciding as a matter of law that Mrs. Perton had superior knowledge of the defective condition of the bicycle and that the trial court erred by deciding as a matter of law that she assumed the risk. Thus, no issue concerning strict liability is properly before this Court. This Court’s function is to correct errors of law of which the parties complain, and our responsibility does not reach reviewing the record and sua sponte raising and deciding issues not raised by the parties. Ga. Const. of 1983, Art. VI, Sec. V, Par. III; Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 746 (3) (360 SE2d 70). Accordingly, we have no jurisdiction to give advisory opinions on the matters discussed in paragraph (a) of the majority opinion.

Nevertheless, as I agree that the evidence is not conclusive that Mrs. Perton had actual knowledge of the danger associated with continuing to ride the bicycle and understood and appreciated the risks associated with the danger (see Vaughn v. Pleasent, 266 Ga. 862 (471 SE2d 866)), I concur with reversing the grant of summary judgment to Motel Properties.

       While these cases arose out of sales under the UCC, OCGA § 11-2-314, imposing implied warranties of fitness as a matter of law and arising from a sales relationship, these cases also explain the legal effect of a breach of warranty of fitness in the same fashion in which OCGA § 44-12-63 gives rise to an implied warranty of fitness. Under OCGA § 51-1-11, strict product liability in tort was recognized to arise from the statutory language of implied warranty imposed as a matter of law upon the manufacturer of new personal property. Center Chem. Co. v. Parzini, 234 Ga. 868 (218 SE2d 580) (1975). When the manufacturer of a new product places the product on a trial basis as a bailment with the hope of ultimate sale, such was held to be subject to strict liability under OCGA § 51-1-11. Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745 (353 SE2d 340) (1987). Strict liability does arise from a rental or lease agreement in a fashion similar to a sale. Redfern Meats v. Hertz Corp., supra; Southern Protective Products Co. v. Leasing Intl., supra. See also McIntosh, Ga. Products Liability, §§ 3-2; 3-3; 3-5; pp. 104-110. “Definition of ‘One Who Sells or Otherwise Distributes’ — For purposes of this Restatement: . . . (b) One otherwise distributes a product when, in a commercial transaction other than a sale, one provides the product to another either for use ... Commercial nonsale product distributors include, but are not limited to, lessors, bailors .. . Comment f. Other means of commercial distribution: product bailments. Bailments typically involve short-term transfers of possession. Several categories of cases are fairly clear. . . . Even when a sale of a product is not contemplated, the commercial bailor is subject to strict liability if a charge is imposed as a condition of the bailment. Thus, a laundromat is subject to strict liability for a defective clothes dryer, and a roller rink that rents skates is treated similarly.” Torts, Products Liability, Restatement 3rd, § 20, p. 358. See Reporters’ Notes: First Nat. Bank of Mobile v. Cessna Aircraft Co., 365 S2d 966 (Ala. 1978); Robert F. Bullock, Inc. v. Thorpe, supra; Delaney v. Towmotor Corp., 339 F2d 4 (2nd Cir. 1964) (when product demonstrated for purpose of sale); Garcia v. Halsett, 82 Cal. Rptr. 420, 423 (Cal. App. 1970) (when no sale contemplated and rental only); Golf v. Sports Complex, 644 A2d 989 (Del. Super. Ct. 1994). See contra Seaboard Coast Line R. v. Mobil Chem. Co., supra at 546, wherein this Court held that neither OCGA § 11-2-314 nor § 51-1-11 applied when there was no sale or the substantial equivalent of a sale; however, the opinion did not consider the issue in this case, i.e., that such statutes could be used to interpret the statutory intent of OCGA § 44-12-63 when it uses the same term “warranty,” not in a sales setting, but in a bailment for hire setting. See also Monroe v. Savannah Elec. &c. Co., 219 Ga. App. 460 (465 SE2d 508) (1995), wherein this Court has restricted the application of OCGA § 51-1-11 (b) to products that have been sold.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A98A0189.
    RUSSELL v. THE STATE.
    (497 SE2d 36)
   Birdsong, Presiding Judge.

Derrick Russell appeals his conviction of armed robbery in violation of OCGA § 16-8-41. He enumerates six errors. Held:

1. The record reveals that appellant was not present during proceedings conducted in chambers. During these proceedings, the voir dire of certain jurors took place in the presence of the judge, the prosecutor and appellant’s counsel, and the State raised an objection to the defense’s use of peremptory challenges to strike prospective jurors purely on racial grounds. The voir dire of prospective jurors is a “critical stage of the proceedings” at which a defendant has “an absolute right to be present under Art. I, Sec. I, Par. XII of the Georgia Constitution” of 1983. Goodroe v. State, 224 Ga. App. 378, 380 (1) (480 SE2d 378). “The right may be waived by the defendant personally, or by defendant’s counsel if counsel does so in the defendant’s presence or pursuant to the defendant’s express authority, or the defendant may subsequently acquiesce in counsel’s waiver.” Id. “The State concedes [in its appellate brief] that the record shows neither a personal waiver by [a]ppellant of his right to be present nor an express authorization to counsel to waive his presence.” We agree. “Even though defense counsel was present in [appellant’s] absence and made no objection, this does not waive the right or prevent error from being asserted on appeal.” Goodroe, supra at 380, citing Fictum v. State, 188 Ga. App. 348, 349-350 (373 SE2d 54). Wilson v. State, 212 Ga. 73 (90 SE2d 557), where appellant repudiated the attempted waiver by his counsel at the earliest opportunity, is distinguishable from the facts of this case. As appellant’s right to be present was violated and his absence was neither consented to nor waived, reversible error would occur unless appellant knowingly acquiesced in his counsel’s election to proceed in his absence. Goodroe, supra at 380-381 (1). The State contends that in light of appellant’s silence at the time of jury selection and after the overnight recess, he acquiesced in his absence at these proceedings, and asserts that this case should be remanded for a hearing as to this issue. As to the issue of acquiescence, see generally State v. Phillips, 247 Ga. 246, 248 (1) (B) (275 SE2d 323) and cases cited therein; Allen v. State, 199 Ga. App. 365 (405 SE2d 94); Frank v. State, 142 Ga. 741, 758 (3) (83 SE 645); see also Harmon v. State, 224 Ga. App. 890, 891 (482 SE2d 730) (facts reveal elements of both waiver by conduct and knowing acquiescence); compare Parker v. State, 220 Ga. App. 303 (469 SE2d 410) with Fictum, supra. Acquiescence “means a tacit consent to acts or conditions, and implies a knowledge of those things which are acquiesced in. [Compare State v. Phillips, supra, with Martin v. State, 160 Ga. App. 275 (287 SE2d 244).] One can not acquiesce in a wrong while ignorant that it has been committed, and the knowledge must be of facts.” Dunaway v. Windsor, 197 Ga. 705, 709 (30 SE2d 627). Acquiescence may arise “where a person who knows that he is entitled to . . . enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right.” Black’s Law Dictionary (5th ed.). Whether appellant knowingly acquiesced to the waiver of his presence, by his counsel, is a mixed question of law and fact. In view of the posture of the appellate record, including the lack of a motion for new trial and a hearing thereon, and in order to effectuate a just determination of this issue (Ga. Const. of 1983, Art. VI, Sec. I, Par. IV), this case shall be remanded to the trial court with direction to conduct a hearing, giving both sides adequate opportunity to address the issue of acquiescence.

2. The trial court did not err in returning two jurors to the jury panel after appellant exercised his peremptory strikes to remove them. “The principles of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) apply equally to the defense as to the prosecution.” Ellerbee v. State, 215 Ga. App. 312, 315 (6) (450 SE2d 443). Defense disproportionately used eleven of its twelve peremptory strikes against white jurors and only one against a black juror; it also used one of its two alternate jury strikes against a white juror. The State established a prima facie case of discriminatory use of peremptory strikes. Compare Ellerbee v. State, supra (black appellant struck 12 white jurors). The defense initially asserted that one white female juror (juror no. 2) was struck because she had been the victim of a similar armed robbery and subsequently also asserted that this juror lived in Dunwoody which allegedly is “notorious for not having a lot of black people living there.” However, the State noted that a black female juror (juror no. 7) had been accepted by the defense, although she too had been an armed robbery victim and had the perpetrator’s gun pointed directly at her. The trial court held that the proffered race-neutral reason was “not acceptable on step 3,” see generally O’Neal v. State, 226 Ga. App. 224 (1) (482 SE2d 478) (three-part test required), thereby implicitly holding that the race-neutral reason proffered for the strike was pretextual and that the strike was exercised in a purposefully discriminatory manner. The State met its burden of showing that the defense’s proffered reason was a pretext for discrimination “by showing that [appellant] had failed to strike [a] similarly situated [juror] of a different race.” Blair v. State, 267 Ga. 166, 167 (2) (476 SE2d 263). The defense struck a white male juror (juror no. 29) because he was an accountant, well dressed, would not have empathy with the accused, and was in an occupation indicating the person is conservative in their thinking. A strike based on a person’s employment or marital status facially is race-neutral. O’Neal, supra at 225 (1). Unlike O’Neal, supra, however, the record of voir dire in this case when viewed in its totality establishes that the trial court accepted the reason as a race-neutral explanation, under step 2, but affirmatively found, under step 3, that the race-neutral reason was pretextual and that the strike had been exercised in a purposefully discriminatory manner. This finding was made, after examining inter alia the circumstances of two black female jurors, including a female black juror (juror no. 4) who was an accountant (perceived to be a conservative-oriented profession), who had been a victim of both burglary and car theft, and who had a female cousin in jail for possession but opined that was the best thing to happen to her cousin. Compare Blair, supra. The trial court’s finding of fact that the strike was exercised in a purposefully discriminatory manner must be affirmed unless clearly erroneous. Smith v. State, 264 Ga. 449, 451 (1) (448 SE2d 179). The voir dire transcript reveals that the trial court’s rulings were not clearly erroneous. “Both the State and a criminal defendant have the constitutional right to have a jury whose members are selected pursuant to nondiscriminatory criteria [cits.]; ‘and an individual juror has the right not to be excluded from a jury on account of race.’ . . . [Cit.] The trial court has constitutional authority to exercise such power as necessary in aid of its jurisdiction and to protect its judgments [cit.]; accordingly, the trial court had the constitutional power to seat an individual juror determined to have been challenged in violation of Batson” Ellerbee, supra at 316-317 (7) (b).

3. The trial court did not err as asserted by appellant in admitting in evidence a statement of co-defendant Steele contrary to Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476). The statement was redacted, before being read to the jury, to delete any direct reference to the appellant. The trial court instructed the jury that the statement could only be used against the co-defendant, and it could not be used against appellant and no inference could be drawn therefrom against appellant. “‘The implication of another defendant must be direct. It is not a Bruton violation if the redacted confession identifies the defendant only through the jury’s making connections with other evidence and drawing inferences. The [co-defendant’s] statements standing alone must clearly inculpate the defendant.’ ” (Emphasis omitted.) Durden v. State, 219 Ga. App. 732, 735-736 (5) (466 SE2d 641), citing Walker v. State, 213 Ga. App. 407, 413 (7) (444 SE2d 824). As the only inference identifying appellant with the co-defendant’s statement was through other evidence, there was no error. Durden, supra at 736 (5).

Additionally, appellant’s counsel, during his cross-examination of Detective Donehoo, informed the jury that appellant was the person with the co-defendant. One cannot complain of a result he procured or aided in causing by his conduct or trial tactics, and induced error is not an appropriate basis for claiming prejudice. Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251).

4. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of armed robbery of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

5. Appellant’s counsel filed a timely notice of appeal without tendering a motion for new trial and raising timely the issue of ineffective assistance of counsel. As appellant has failed to raise this issue at the earliest opportunity, he cannot now raise it for the first time on appeal. Glover v. State, 266 Ga. 183 (2) (465 SE2d 659).

6. The trial court did not abuse its discretion in denying appellant’s motion in limine to preclude any witness from mentioning that the dark-colored (green), pickup truck, in which the co-defendant and appellant were riding at the time of their arrest, was a stolen vehicle. The arresting officer observed a pickup that matched the lookout description broadcast of the vehicle being used by perpetrators of the armed robbery; when he activated his lights and siren, the driver of the vehicle refused to stop immediately and ignored signals to stop for approximately a quarter-mile. The vehicle was subsequently identified as a stolen vehicle, and a pistol was found under the driver’s seat. “Where evidence is relevant for the purpose of showing flight or the circumstances of arrest, it will not be excluded because it incidentally shows the commission of another crime.” Mullins v. State, 147 Ga. App. 337, 338 (6) (248 SE2d 706) (admission of detective’s testimony as to recovery of a stolen automobile used in the escape from a robbery scene and the manner in which it was linked to defendant was not erroneous); see Hutson v. State, 216 Ga. App. 100, 101 (5) (453 SE2d 130).

This case is affirmed on the following condition. Pursuant to our holding in Division 1, above, this case is remanded for a hearing as to the issue of acquiescence. The trial court should consider and balance all relevant factors in arriving at its determination regarding the issue of acquiescence and make relevant findings of fact, including: (1) whether appellant knew of his right to be present during jury selection; (2) whether appellant’s counsel waived appellant’s right to be present in the presence of appellant; (3) whether appellant posed any form of timely objection to conducting voir dire outside his presence; (4) whether appellant was absent voluntarily .or whether he was in confinement or custody of the State; (5) whether the trial court announced in the appellant’s presence that counsel would meet with him in chambers to continue the voir dire; and (6) if the trial court so announced the chambers conference in appellant’s presence, whether a fair risk existed that such announcement would have misled appellant as to his right to be present during voir dire. Should the trial court determine on remand that a finding of acquiescence is not warranted, judgment of conviction shall be vacated and a new trial is in order. Should the trial court conclude that appellant acquiesced in his counsel’s waiver of his presence, the judgment of conviction shall stand affirmed and appellant is authorized to file an appeal of the trial court’s order within 30 days of that ruling. Cf. Turner v. State, 267 Ga. 149, 155 (3) (476 SE2d 252).

Decided February 11, 1998.

Yvonne Twyman-Williams, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Jennifer M. Daniels, Assistant District Attorneys, for appellee.

Judgment affirmed on condition; case remanded with direction.

Johnson and Smith, JJ, concur.


author: Ruffin, Judge.

text:
    A97A1825.
    ANDERSON et al. v. SERVICE MERCHANDISE COMPANY, INC.
    (496 SE2d 743)
   Ruffin, Judge.

Helen Anderson was injured while operating an exercise machine on display at a Service Merchandise store in Savannah, Georgia. Anderson and her husband, Charlie Anderson, sued Service Merchandise Company, Inc. (“Service Merchandise”) for Mrs. Anderson’s injuries and Mr. Anderson’s loss of consortium. The trial court granted summary judgment to Service Merchandise, and the Andersons appealed. For the following reasons, we affirm.

“It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. [Cit.] This requires a de novo review of the evidence.” Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

1. We note initially that the Andersons, who are represented by counsel on appeal, have violated this Court’s rules and OCGA § 5-6-40 by failing to file a separate enumerations of error. See Court of Appeals Rule 22. Furthermore, by having just three references to the record in their appellate brief, the Andersons have only marginally complied with Court of Appeals Rule 27 (c) (3), which requires each enumerated error to be supported in the appellate brief with specific references to the record or transcript. Such violations not only hinder our review of the merits of the appeal and create the potential that an asserted error will not be addressed, they also subject the appeal to dismissal and the appellants and their counsel to contempt. See Court of Appeals Rules 7 and 27 (c) (2). However, since the Andersons have presented an enumeration of error in their appellate brief and it is apparent from the brief, the notice of appeal and the record what judgment is being appealed from and what error is being asserted, we will consider the merits of the appeal to the extent it is supported by argument, citation to the record, and authority. See OCGA §§ 5-6-30 and 5-6-48 (f).

2. Turning to the merits, the record shows the Andersons went to Service Merchandise to purchase an exercise machine. After looking at various pieces of exercise equipment, Mrs. Anderson focused her attention on a cross-country ski machine. She had tested the same product at other stores prior to her trip to Service Merchandise and thus was fully aware of how to operate the machine. Mrs. Anderson watched three women use the machine without incident before testing it herself. She noticed no Service Merchandise employees in the area. While using the machine, one of its nuts came loose, which caused a belt at the bottom of the machine to fall off. The reduced tension resulting from the malfunction caused Mrs. Anderson to fall backwards and injure herself.

In support of its motion for summary judgment, Service Merchandise presented evidence that it did not manufacture or assemble the exercise machine. The director of testing and product safety for the company that manufactured the machine stated in an affidavit that the “triangular nut worked its way loose. . . .” He added that the loosening of the nut was a “hidden or concealed situation” that Service Merchandise would have “no way of anticipating or foreseeing.”

Service Merchandise also showed that the machine had been on display since August 1992 and approximately 150 customers used it each week since that time. The machine never malfunctioned or resulted in injury prior to Mrs. Anderson’s accident. Service Merchandise’s showroom manager averred that the store “employed customary inspection procedures which were followed on February 26, 1993 [the date of the accident]. The employees working in the Self-Service Department periodically inspected the exercise equipment to determine if there were any loose handles or any other obvious defects. [The] periodic inspections disclosed no problems, defects, or loose nuts, bolts or screws [on the ski machine].”

“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. A proprietor’s obligation to keep the premises safe includes “a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. [Cit.]” (Punctuation omitted.) Davis v. Piedmont Hosp., 222 Ga. App. 97, 98 (473 SE2d 531) (1996).

“An invitee who responds to the owner/occupier’s invitation and enters the premises does so pursuant to an implied representation or assurance that the premises have been made ready and safe for the invitee’s reception, and the entering invitee is entitled to expect that the owner/occupier has exercised and will continue to exercise reasonable care to make the premises safe. [Cit.]” Robinson v. Kroger Co., 268 Ga. 735, 741 (493 SE2d 403) (1997). As it is not disputed that the Andersons were business invitees of Service Merchandise, the Andersons could reasonably assume the furnishings on the premises, including the exercise equipment, were “safe for the usa for which they apparently were intended” providing that the furnishings presented no obvious hazard. Ballard v. Southern Regional Med. Center, 216 Ga. App. 96 (1) (453 SE2d 123) (1995).

There is also no dispute that the defect in the exercise machine, the loose nut, was not an open and obvious hazard. Hence, if, in the exercise of ordinary care, Service Merchandise knew or should have known of the defect in the machine, and, but for this defect, Mrs. Anderson would not have fallen, Service Merchandise could be held responsible for the Andersons’ injuries. Id.

“The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner and not known to the person injured that a recovery is permitted.” (Citation, punctuation and emphasis omitted.) Id. at 97. As there is no evidence Service Merchandise had actual knowledge of the defect in the machine, liability must be based on Service Merchandise’s constructive knowledge. Id.

“Constructive knowledge can be established with evidence that either [Service Merchandise] failed to exercise reasonable care in inspecting its premises or an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. [Cit.]” Hornbuckle Wholesale Florist &c. v. Castellaw, 223 Ga. App. 198, 199 (477 SE2d 348) (1996). No Service Merchandise employee was in the vicinity of the machine when Mrs. Anderson was using it, and the hazardous condition was not easily noticeable.

Thus, the evidence must show that Service Merchandise failed to exercise reasonable care in inspecting the exercise machine. “In seeking summary judgment, the defendant has the initial burden of showing that this theory of recovery is not viable by demonstrating that it exercised reasonable care in inspecting the premises. [Cit.] This burden may be carried by evidence of compliance with reasonable inspection procedures. [Cit.]” Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 224-225 (460 SE2d 838) (1995). See also Newell v. Great A & P Tea Co., 222 Ga. App. 884, 885 (2) (476 SE2d 631) (1996). “Once a defendant demonstrates a lack of actionable constructive knowledge by compliance with reasonable inspection procedures, the burden shifts back to the plaintiff to show how long [the hazard has been in existence].” Daniel, supra at 225.

Decided January 15, 1998

Reconsideration dismissed February 12, 1998.

C. Leon Lee II, Bess L. Walthour, for appellants.

McLain & Merritt, Howard M. Lessinger, for appellee.

In the instant case, Service Merchandise has shown that it exercised reasonable care in inspecting its premises. It is uncontroverted that Service Merchandise had inspection procedures in place and that those procedures were followed on the day of Mrs. Anderson’s injury. It is also uncontroverted that the loose nut was a hidden defect that Service Merchandise could not have foreseen or anticipated. Given the unforeseeable nature of the hazard, we cannot conclude that Service Merchandise’s inspection procedures were inadequate under the circumstances.

As Service Merchandise, the moving party, has discharged its burden of showing through affidavits and other evidence that there is an absence of evidence to support the Andersons’ claim, the Andersons could not simply rest on the pleadings, but had a duty to come forward with some evidence giving rise to a triable issue, such as evidence of the length of time the hazard had been allowed to exist. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The Andersons failed in complying with this responsibility, and accordingly their action could not survive summary judgment.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A98A0402.
    ISON et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    (496 SE2d 478)
   Johnson, Judge.

Marvin Ison, B & I Glass Company, Inc., and Julia Mae Williams appeal from the trial court’s grant of summary judgment to State Farm Fire & Casualty Company in this declaratory judgment action.

Ison, as president of B & I Glass Company, applied for an automobile liability insurance policy with State Farm. George Harrell, an employee of B & I Glass, did not qualify as an insured driver for coverage under a State Farm policy. In consideration for the premium paid, State Farm issued an insurance policy specifically excluding Harrell from coverage. Ison, aware that coverage was specifically excluded for Harrell, nevertheless allowed Harrell to drive a company vehicle on August 31, 1991. While operating this vehicle owned by B & I Glass on that date, Harrell struck and killed Emery Williams. Julia Mae Williams, the surviving widow, filed the underlying suit against Ison and B & I Glass from which this declaratory judgment action arises.

Ison argues that the trial court erred in granting State Farm’s motion for summary judgment because a genuine issue of material fact remains as to whether the named driver exclusion violates public policy under the facts and circumstances of this case. “An insurer may reject coverage for a person expressly excluded from its policy. Provided that the exclusion agreement is supported by consideration between the parties, the exclusion is enforceable.” (Citations omitted.) Middlebrooks v. Atlanta Cas. Co., 222 Ga. App. 785, 786 (476 SE2d 82) (1996). Appellants concede that the named driver exclusion in the policy at issue in this case is specific and supported by consideration.

This Court has previously held that named driver exclusions which are clear, unambiguous and supported by consideration are enforceable and not violative of public policy and the compulsory insurance laws of this state. Atlanta Cas. Co. v. Cash, 209 Ga. App. 123 (433 SE2d 311) (1993); Fountain v. Atlanta Cas. Co., 204 Ga. App. 165 (419 SE2d 67) (1992). Because the provision in the policy issued by State Farm clearly and unambiguously excluded Harrell, its interpretation is a matter for the court. Middlebrooks, supra; OCGA § 13-2-1. See Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996).

Appellants’ reliance on Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985) and Stepho v. Allstate Ins. Co., 259 Ga. 475 (383 SE2d 887) (1989) is misplaced. These cases and their progeny have considered whether various exclusions were void for public policy reasons in light of the availability of other insurance to injured innocent parties. See State Farm Mut. Auto. Ins. Co. v. Drawdy, 217 Ga. App. 236, 237 (2) (456 SE2d 745) (1995) (lack of notice to insurer exclusion enforceable because injured party had access to uninsured motorist coverage); Auto-Owners Ins. Co. v. Jackson, 211 Ga. App. 613, 614 (1) (440 SE2d 242) (1994) (intentional damage exclusion not void in light of available uninsured motorist coverage); Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864 (389 SE2d 370) (1989) (unlicensed driver exclusion upheld because injured third party had access to other insurance coverage). Georgia cases specifically construing named driver exclusions, however, have enforced the exclusions without requiring an inquiry into the availability of other insurance to the injured party. Perhaps this is because a named driver exclusion is analogous to there being no policy at all with respect to the named excluded driver; conversely, the other exclusions address behavior of the insured (or a permissive driver) who has a direct connection with an existing policy. See Progressive Preferred Ins. Co. v. Browner, 209 Ga. App. 544 (433 SE2d 401) (1993). In any event, the trial court did not err in finding as a matter of law that no coverage is available under this policy because Harrell was the subject of a named driver exclusion.

Decided January 22, 1998

Reconsideration denied February 12, 1998

Williams, Sammons & Sammons, Walter G. Sammons, Jr., Mincey & Green, Thomas M. Green, Robert E. Lanyon, for appellants.

Martin, Snow, Grant & Napier, Jay C. Traynham, Lisa Edwards, for appellee.

Judgment affirmed.

Birdsong, P. J., arid Smith, J., concur.


author: Smith, Judge.

text:
    A97A1910.
    SMALLS et al. v. BLUEPRINT DEVELOPMENT, INC. et al.
    (497 SE2d 54)
   Smith, Judge.

Plaintiffs Henry Smalls, Jr. (“Smalls”), Herb Drawdy, Jr. (“Drawdy”), Isiah and Debra White (collectively, the “Whites”), and other individuals not party to this appeal brought suit against defendants Blueprint Development, Inc. (“Blueprint Development”), Blueprint Residential Building & Design, Inc. (“Blueprint Residential”), and Vincent Sikorski (“Sikorski”), alleging claims for fraud, constructive fraud, and negligent construction. Defendants moved for summary judgment, raising several arguments, including the failure of plaintiffs to exercise due diligence in determining whether or not their homes were built on property delineated as wetlands. Plaintiffs now appeal the trial court’s grant of partial summary judgment to Blueprint Development and Blueprint Residential on the fraud counts, and we affirm.

1. In two enumerations of error, plaintiffs argue the trial court erred in ruling that plaintiffs did not exercise due diligence as a matter of law in failing to investigate whether their homes were built on wetlands or land previously delineated as wetlands.

The record shows that in July 1990, Blueprint Development purchased a tract of land located in Chatham County containing property subject to wetland delineation. The sellers of the property had obtained a permit from the United States Army Corps of Engineers to fill the wetlands on the tract, and that permit was transferred to Blueprint Development as part of the transaction. Blueprint Development filled the wetlands' pursuant to regulatory guidelines and subsequently sold the tract to Blueprint Residential. Prior to the transfer of the developed tract to Blueprint Residential, all fill had been completed so that land previously delineated as “wetlands” now had “nonwetland” status and was no longer under the jurisdiction of the United States Army Corps of Engineers.

Between October 1991 and May 1992, each plaintiff entered into contracts with Blueprint Residential for the purchase of homes in this development. The real estate sales contract executed by each plaintiff contained the following language: “Portions of the property which is the subject of this contract are or may be subject to various State and Federal wetlands statutes and regulations. Wetlands are under the jurisdiction of the Corps of Engineers. Lot owners are subject to penalty by law for disturbance to those wetland areas without prior authorization.” Notwithstanding the express notice placed in these sales contracts, none of the plaintiffs took any action to investigate the status of the property prior to purchase of the lots.

“ ‘As was pointed out by this court in Wilhite v. Mays, 140 Ga. App. 816, 817 (232 SE2d 141) [(1976)], fraud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie; upon active concealment where the seller does not discuss the defect but takes steps to prevent its discovery by the purchaser; and thirdly a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller. Traditionally, the rule of caveat emptor had applied and the sales contract merged into the warranty deed and foreclosed any right of remedy by the purchaser after the closing of the contract by transfer of the deed. [Cit.] Wilhite, supra, changed the rule of caveat emptor and placed upon the (seller) a duty to disclose a defect of which he knows but is aware that the purchaser is ignorant of the condition and which probably would affect the decision of the purchaser to close the transaction.’ [Cits.]” Ben Farmer Realty v. Woodard, 212 Ga. App. 74, 75-76 (441 SE2d 421) (1994).

This passive concealment exception to the general rule of caveat emptor, which is the basis of plaintiffs’ claim, is concerned with concealed defects that purchasers in the exercise of due diligence could not detect. “It is only when the defects in the property are of a nature that the buyer could not discover them through the exercise of due diligence that any burden is placed on the seller to disclose the seriousness of the problems of which he is aware, provided the seller knows that the buyer is acting under a misapprehension as to the facts which would be important to the buyer in making his decision. [Cit.]” Smith v. Stanley, 223 Ga. App. 334, 335 (477 SE2d 618) (1996). Therefore, in order for there to be a valid claim of fraud, the individual allegedly defrauded must be able to present evidence of the exercise of due diligence to discover the fraud. Delk v. Tom Peterson Realtors, 220 Ga. App. 576, 577 (469 SE2d 741) (1996).

Relying on our decisions in Real Estate Intl. v. Buggay, 220 Ga. App. 449 (469 SE2d 242) (1996); Delk, supra; and Smith, supra, the trial court, in this case, correctly determined that plaintiffs’ claims of fraud must fail because all of the sales contracts with Blueprint Residential contained express provisions alerting them to the possibility that their lots could be located on property subject to wetlands regulation. This provision should have placed plaintiffs on notice that they needed to investigate further and ascertain the current status of their property. “Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of the parties.” (Citations and punctuation omitted.) Real Estate Intl., supra at 452 (2). In light of their failure to take any affirmative action whatsoever subsequent to their execution of the sales contracts containing this disclosure, plaintiffs, as a matter of law, cannot show that they exercised due diligence in this case. This failure is fatal to their claims of fraud. Delk, supra at 577. The trial court therefore did not err by granting summary judgment to defendants on plaintiffs’ fraud claims.

We reject plaintiffs’ argument that the disclosures contained in the sales contracts were too inconspicuous to put them on notice of the wetland delineation of their lots. Plaintiffs have pointed to no statute or case law that would require disclosures in real estate contracts to be boldfaced or in a larger-sized font in order for them to be deemed sufficient to place a party on notice. Compare Southern Fire &c. Co. v. Freeman, 268 Ga. 60 (3) (485 SE2d 738) (1997) (motor vehicle liability insurance applications must include disclosures in boldfaced type pursuant to former OCGA § 33-34-5 (b)); BCS Fin. Corp. v. Sorbo, 213 Ga. App. 259, 261 (3) (444 SE2d 85) (1994) (disclaimers of implied warranties of fitness or merchantability relating to personal property must be conspicuous pursuant to OCGA § 11-2-316 (2)). In this case, we find that the disclosures contained in plaintiffs’ real estate sales contracts to be “[njotice sufficient to excite attention and put a party on inquiry.” Real Estate Intl., supra at 452.

Decided February 12, 1998

Wallace & Tetreault, Victor J. Tetreault, for appellants.

We also note that plaintiffs’ claims of fraud must fail for another reason. “The tort of fraud has five elements. These are: (1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.” (Citations and punctuation omitted.) Reeves v. Edge, 225 Ga. App. 615, 617-618 (2) (484 SE2d 498) (1997). The undisputed facts of record show that at the time of the closings none of the lots purchased by plaintiffs was located on property delineated as wetlands. Finally, the lots purchased by Smalls and by the Whites never had wetland designation even before the fill was put in place. Plaintiffs have no claim of fraud because there can be no material omission if the underlying fact upon which the claim of misrepresentation is based does not exist. Here, plaintiffs’ complaint alleged that defendants failed to inform them that their homes were built on wetlands. Since the underlying fact alleged is not accurate, plaintiffs cannot demonstrate even the first element of fraud, a material misrepresentation or omission of material fact.

2. In its order granting partial summary judgment to defendants, the trial court determined insufficient evidence had been presented to “pierce the corporate veil” of either corporate defendant. The trial court therefore ruled that Blueprint Development, the developer of the property, could not be liable for any fraudulent activity of Blueprint Residential, the builder/vendor of the property, under an alter ego theory.

Relying on Kissun v. Humana, Inc., 267 Ga. 419 (479 SE2d 751) (1997), plaintiffs argue for the first time on appeal that the trial court’s refusal to pierce the corporate veil should not have precluded a further inquiry into whether sufficient evidence existed to support a claim of apparent agency or joint venture liability. However, unlike the plaintiffs in Kissun who asserted their alternative theories of liability in the court below, our review of the record shows that plaintiffs are raising these additional theories of liability for the first time on appeal. It is well settled that arguments not asserted in the trial court below will not be considered for the first time on appeal. Edgar v. Shave, 205 Ga. App. 337, 339 (3) (422 SE2d 234) (1992). Accordingly, this enumeration is without merit.

Judgment affirmed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.

Brannen, Searcy & Smith, Daniel C. Cohen, Weiner, Shearouse, Weitz, Greenberg & Shawe, Mark T. Shawe, for appellees.

       The trial court’s order indicates that Sikorski was dismissed from the action during oral argument on defendants’ motion for summary judgment.


author: Blackburn, Judge.

text:
    A97A1978.
    JORDAN v. THE STATE.
    (497 SE2d 48)
   Blackburn, Judge.

Daniel Jordan appeals his conviction of two counts of child molestation, contending that the trial court gave an overly broad jury instruction on the permissible uses of similar transaction evidence. He argues that the instruction was overbroad because it allowed such evidence to be considered for purposes not articulated by the State or the court during the admissibility hearing required by Uniform Superior Court Rule 31.3 (B) and Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

The charges in the present case arose out of an incident in which Jordan masturbated in his car in front of a group of young girls on their way to school. At trial, the State sought to introduce evidence regarding a prior conviction for public indecency involving similar conduct. At the USCR 31.3 (B) admissibility hearing, the State said it was offering the evidence to show the defendant’s bent of mind, course of conduct, and lustful disposition. After concluding that the prior incident was nearly identical to the present charges, the court found that the evidence was admissible to show the defendant’s lustful disposition, bent of mind, course of conduct, and method of operation.

When the evidence was introduced at trial, the court gave a limiting instruction, stating that the evidence was admitted for purposes of showing defendant’s identity and state of mind. Jordan raised no objection to this instruction, although identity had not been mentioned at the USCR 31.3 (B) hearing.

At the close of the case, the court charged the jury that the similar transaction evidence could be considered “for the limited purpose of showing, if it does, the identity of the perpetrator, the state of mind of the perpetrator, the knowledge or intent of the perpetrator, or the lustful disposition of the perpetrator.” The court further charged that “you are strictly limited in your consideration of this evidence as to the identity, state of mind, lustful disposition, or course of conduct.” Jordan’s attorney did not raise any objections to the charge, but stated that he reserved objections until the motion for new trial or appeal. Jordan now contends that this charge was over-broad because it informed the jury that it could consider similar transaction evidence for purposes not articulated by the State or the court at the USCR 31.3 (B) hearing. In particular, the charge included identity, intent, and knowledge as permissible purposes, although these were not articulated by the State or the court at the admissibility hearing.

Jordan’s argument fails. “The essential purpose of conducting the Williams analysis [at the USCR 31.3 (B) hearing] is to ensure that there exists a legitimate, probative purpose in introducing an independent criminal act and that there exists sufficient similarity to make the probativeness outweigh any prejudice as a consequence to injecting character into the case.” McTaggart v. State, 225 Ga. App. 359, 364 (2) (483 SE2d 898) (1997). Where the purposes set forth in the court’s charge are legitimate, the fact that they vary somewhat from the purposes mentioned in the USCR 31.3 (B) hearing does not necessarily render the charge erroneous. See McClain v. State, 220 Ga. App. 474, 477 (5) (469 SE2d 756) (1996) (“Although there was a difference between the State’s stated purpose and the court’s instruction, each of the purposes espoused by both the State and the court were permissible”). See also McTaggart, supra (“when Williams has been complied with in a USCR 31.3 (B) hearing, the trial court has made a determination of admissibility, and a limiting instruction specifies the legitimate purpose or purposes for which the jury may consider the prior similar crime, under such circumstances there is no error in a broader jury charge which encompasses multipurposes”); Gardner v. State, 263 Ga. 197, 198 (3) (429 SE2d 657) (1993) (State’s failure to articulate purpose for which evidence offered is harmless where trial court subsequently instructs jury on legitimate purposes, indicating that court has made Williams determination that evidence is offered for legitimate purpose).

In this case, each of the additional purposes articulated by the trial court in its jury charge was a permissible purpose relevant to an issue in the case. The prior transaction was extremely similar to the charges in this case, occurring in the same neighborhood and involving children on the way to school. Identity was clearly an issue in this case, as it was contested by Jordan and as some of the alleged victims were unable to positively identify him as the perpetrator. One of the victims in the prior incident was one of the alleged victims in the present case. Jordan’s knowledge and intent were also clearly relevant issues; indeed, such terms are merely variations of “bent of mind,” a purpose articulated by the State and the court at the USCR 31.3 (B) hearing. As the evidence was properly admissible for each of the purposes stated by the court, the court did not err in its jury charge.

Decided February 12, 1998.

James D. Michael, for appellant.

Stephan v. State, 205 Ga. App. 241 (422 SE2d 25) (1992), relied upon by Jordan, is easily distinguishable from the present case and does not require a different result. In Stephan, the State failed to specify during the admissibility hearing any purpose for which the similar transaction evidence was being offered, and the trial court did not make any finding that the evidence was being offered for a legitimate purpose. Stephan, supra at 243 (2). In its limiting instruction to the jury when the evidence was introduced, the court merely articulated a laundry list of possible reasons for which similar transaction evidence may be admissible — i.e., “knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, and course of conduct, identity or other matters dependent upon a person’s state of mind.” (Punctuation omitted.) Id. Under these circumstances, we held that “the trial court’s articulation of such a comprehensive list of possible purposes did not sufficiently limit the purpose for which the evidence was to be considered by the jury in accordance with Williams” Id. at 244.

In the present case, however, as Jordan admits, the trial court did satisfy Williams by making an express finding that the evidence was admissible for a legitimate purpose. Moreover, although the court’s charge to the jury did not precisely match the purposes stated at the USCR 31.3 (B) hearing, the court did not merely give a laundry list of all possible reasons for which similar transaction evidence may be considered. Instead, it limited its instruction to legitimate purposes relevant to issues in the case. Finally, the continued viability of Stephan is called into question by the Supreme Court’s subsequent holding in Gardner, supra, that a limiting instruction given by the court may indicate that the court made the requisite Williams determination of admissibility. Accordingly, the trial court did not err in charging the jury on the permissible uses of similar transaction evidence.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

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

       The State presented evidence that Jordan masturbated in front of two different groups of girls on two separate occasions on the day in question. He was charged with seven counts of child molestation, one for each child, but was acquitted on five counts.

       We note that the trial court’s final charge to the jury was also broader than the limiting instruction given when the evidence was introduced. However, Jordan does not assert error with respect to this variance, arguing only that the final charge differed from the purposes stated at the USCR 31.3 (B) hearing.


author: Andrews, Chief Judge.

text:
    A97A1997.
    GEORGIA PUBLIC SERVICE COMMISSION v. ALLTEL GEORGIA COMMUNICATIONS CORPORATION et al.
    (497 SE2d 50)
   Andrews, Chief Judge.

Alltel Georgia Communications Corporation and other Alltel telecommunications companies (Alltel companies) filed a petition in the Fulton County Superior Court pursuant to OCGA § 50-13-19 seeking review of the Georgia Public Service Commission’s (PSC) decision interpreting OCGA § 46-5-166 (f) (2), a section of the Telecommunications & Competition Development Act of 1995 (OCGA § 46-5-160 et seq.). The Superior Court found that the PSC had interpreted the statute contrary to its plain meaning and reversed the decision. On appeal, the PSC contends the Superior Court erred in its interpretations of the statute and failed to give proper deference to the PSC interpretation. For the following reasons, we find that the PSC interpretation of OCGA § 46-5-166 (f) (2) failed to give effect to the plain meaning of the statute and was properly reversed by the Superior Court.

The PSC has general regulatory power over telecommunications companies operating in Georgia and has traditionally exercised that power to require the maintenance of certain designated levels of public services and to determine reasonable rates and charges for such services. OCGA §§ 46-2-20 (a), (c); 46-2-23 (a); Ga. Pub. Svc. Comm. v. Alltel Ga. Communications Corp., 227 Ga. App. 382, 383 (489 SE2d 350) (1997). The Telecommunications & Competition Development Act of 1995 (TCDA) was enacted by the Legislature “to establish a new regulatory model for telecommunications services in Georgia to reflect the transition to a reliance on market based competition. . . .” OCGA § 46-5-161 (a) (1). To help accomplish this, the TCDA allows telecommunications companies providing basic local exchange services to elect an alternative form of regulation “pursuant to which the rates, terms, and conditions for telecommunications services provided by a local exchange company are set pursuant to the rules specified in [the TCDA].” OCGA §§ 46-5-162 (1); 46-5-161 (b) (1). Under the TCDA, the Alltel companies at issue were classified as Tier 2 local exchange companies (LECs). OCGA § 46-5-162 (10). As Tier 2 LECs, the Alltel companies elected pursuant to OCGA § 46-5-165 (b) to have their rates, terms and conditions for services determined pursuant to the alternative regulation described in OCGA § 46-5-166. See Alltel Ga. Communications Corp., supra at 383.

As part of the alternative regulation described in OCGA § 46-5-166, the statute provides a method by which the higher rates charged by Tier 2 LECs for intrastate switched access are phased down to parity with the interstate switched access rates charged by Tier 2 LECs. At the same time, the statute also provides a method by which Tier 2 LECs will be compensated for revenue lost through the reduction of the intrastate switched access rates by either an increase in the rates charged by the LECs for basic local exchange services or by payments to the LECs from universal service funds. A Universal Access Fund from which such payments may be made was established in OCGA § 46-5-167. Under OCGA § 46-5-166, the PSC has authority to govern this transition to lower intrastate switched access charges.

The transition is set forth in subsection (f) (2) of OCGA § 46-5-166 which provides in relevant part as follows: “Each Tier 2 local exchange company shall, prior to July 1, 2000, adjust in equal annual increments its intrastate switched access charges to parity with its similar interstate access rate. The [PSC] shall have authority to govern the transition of Tier 2 local exchange company switched access rates to their corresponding interstate levels and shall allow adjustment of other rates, including those of basic local exchange services or universal service funds, as may be necessary to recover those revenues lost through the concurrent reduction of the intrastate switched access rates. In no event shall such adjustments exceed the revenues associated with intrastate to interstate access parity as of July 1, 1995. In addition, if access revenues have dropped below July 1, 1995, levels in subsequent years, the adjustment in those years will be based on the reduced balance.” In conjunction with these provisions, the TCDA further directs the PSC pursuant to OCGA § 46-5-167 (a) and (b) to require all telecommunications companies in Georgia to contribute to a Universal Access Fund administered by the PSC and created for the purpose of “assuring] the provision of reasonably priced access to basic local exchange services throughout Georgia.”

After the enactment of the TCDA, the PSC initiated an administrative action on its own motion pursuant to OCGA § 46-2-20 (b) to interpret and implement the provisions of OCGA §§ 46-5-166 (f) (2) and 46-5-167. As part of this action, the PSC issued an interim order on June 20,1996, and a final order on August 30,1996. The PSC con-eluded that the first annual incremental rate reduction under OCGA § 46-5-166 (f) (2) occurred on July 1, 1996. The orders also provided that an interim Universal Access Fund be established tinder OCGA § 46-5-167 to fund adjustments paid to Tier 2 LECs under the provh sion of OCGA § 46-5-166 (f) (2) for payments from universal service funds. The orders further contained the PSC interpretation as to the amount of the adjustments it was required to make in favor of a Tier 2 LEC under OCGA § 46-5-166 (f) (2) in order to allow the LEC “to recover those revenues lost through the concurrent reduction of the intrastate switched access rates.”

Before addressing the PSC interpretation of the statute, we set forth the interpretation of OCGA § 46-5-166 (f) (2) which we find is consistent with the plain meaning of the statute. The statute requires that the LEC receive monetary adjustments, either in the form of payments from universal service funds or from an increase in the rate for basic local exchange services, “as may be necessary to recover those revenues lost through the concurrent reduction of the intrastate switched access rates.” The total amount of rate reduction required by the statute is determined by comparing the LEC’s 1995 intrastate switched access rate to the LEC’s similar 1995 interstate access rate. The difference between these two rates (the 1995 rate difference) is the total rate reduction necessary to reach parity with the interstate rate prior to July 1, 2000. The statute also contains a cap on the total amount of adjustments which a Tier 2 LEC may receive under OCGA § 46-5-166 (f) (2) by providing that: “In no event shall such adjustments exceed the revenues associated with intrastate to interstate access parity as of July 1, 1995.” The cap on adjustments is determined by multiplying the 1995 rate difference by the total units of intrastate switched access sold by the LEC during the year ending July 1, 1995. The product obtained by multiplying these two figures reflects the amount of revenue the LEC earned in the year prior to July 1,1995, in excess of the amount of revenue that the LEC would have earned had the intrastate rate been at parity with the interstate rate for that year. This product represents “the revenues associated with intrastate to interstate access parity as of July 1, 1995,” and is the maximum amount of adjustment to which an LEC is entitled under OCGA § 46-5-166 (f) (2). It follows that this product divided by the number of statutorily required equal annual reductions provides the maximum that the Tier 2 LEC may recover in adjustments each year. Furthermore, for the Tier 2 LEC “to recover those revenues lost through the concurrent reduction of the intrastate switched access rates,” as provided by the statute, the LEC is entitled to adjustments each year equal to the product obtained by multiplying the required incremental annual rate reduction by the total units of intrastate switched access sold by the LEC during the year at the reduced rate. Of course, no adjustment amounts may be obtained in excess of the statutory cap, and, as set forth in the statute, “if access revenues have dropped below July 1, 1995, levels in subsequent years, the adjustment in those years will be based on the reduced balance.” OCGA § 46-5-166 (f) (2).

The PSC argues on appeal that the above interpretation of OCGA § 46-5-166 (f) (2) would result in Tier 2 LECs recovering adjustment amounts in excess of that intended by the statute where the LEC experiences growth in access revenues in years subsequent to the year ending July 1, 1995. Under the PSC interpretation, “revenues lost through the concurrent reduction of the intrastate switched access rates” are calculated as follows: Using the year ending July 1, 1995 as the benchmark, calculate the revenue that the LEC generated by selling intrastate switched access in that year, prior to any rate reduction, by multiplying the intrastate rate by the total units of intrastate switched access sold by the LEC. In subsequent years, multiply the reduced intrastate switched access rate by the increased total units sold by the LEC at the reduced rate. The difference is the LEC’s net revenue loss taking growth in access revenue into account as an offset against the gross revenue lost by selling units of access at the reduced rate. Under the PSC interpretation, any growth in access revenues in subsequent years is calculated as an implicit subsidy that reduces the revenue loss incurred under the statute when the LEC sells units of access at the reduced rate. According to the PSC, even if a Tier 2 LEC sold an increased number of intrastate switched access units at the reduced rate, the LEC would be entitled to no adjustment under the statute if the total amount of revenue generated by the subsequent sales exceeded the total amount of revenue generated by the LEC from the sale of such access in 1995 at the higher rate. The PSC position takes no account of any increased cost to the LEC associated with growth.

We find no basis for the PSC interpretation in the language of OCGA § 46-5-166 (f) (2). The statute provides that a Tier 2 LEC is entitled to adjustments, up to the statutory cap, “as may be necessary to recover those revenues lost through the concurrent reduction of the intrastate switched access rates.” Where a Tier 2 LEC experiences the same access sales or a growth in access sales during the phase-down of rates, the clear mandate of subsection (f) (2) is to calculate revenues lost by virtue of selling each intrastate switched access unit at the concurrently reduced rate. There is nothing in the statute indicating that growth in access revenue should be calculated as an offset against such revenue lost by an LEC during the phase-down to parity with interstate rates.

An interpretation rejecting an offset for growth in access revenue comports with the duty to follow the literal language of the statute. Telecom*USA v. Collins, 260 Ga. 362, 363 (393 SE2d 235) (1990). It is also consistent with construing the intent of the Legislature in light of the purpose of the TCDA in the transition to lower intrastate switched access rates. Alford v. Pub. Sue. Comm., 262 Ga. 386, 387 (418 SE2d 13) (1992). One intent of the TCDA is to maintain reasonable rates charged to consumers for basic local exchange services while changing the method by which Tier 2 LECs are compensated for providing these services at the regulated rates. OCGA §§ 46-5-161 (b); 46-5-166; 46-5-167. As the PSC concluded in its August 20, 1996 order, in enacting the TCDA, the Legislature recognized that the reasonable costs incurred by many Tier 2 LECs in fulfilling the duty to provide basic local exchange services (universal access), especially in less densely populated areas, may exceed the revenues generated by the allowed rates. Traditionally, such Tier 2 LECs were compensated for this loss by an implicit subsidy contained in the high access charges paid by long distance carriers to Tier 2 LECs for use of the LECs’ switching facilities. Under the alternative regulation of the TCDA, these implicit subsidies are phased out and replaced by an explicit subsidy in the form of a Universal Access Fund contributed to by all telecommunications companies in Georgia. Since the implicit subsidies existing prior to phase-down of access rates contained no offset for growth in access revenue, it is reasonable to conclude that, in the absence of any clear direction to the contrary, the Legislature intended no such offset in the statute setting forth the explicit subsidy which acts as a replacement during the phase-down period.

There is no merit to the PSC’s additional contention that, unless its interpretation is adopted, the Alltel companies will be entitled to a fixed subsidy in perpetuity under OCGA § 46-5-166 (f) (2). Subsection (f) (2) requires the PSC to make adjustments to Tier 2 LECs as a subsidy only for the period of the phase-down to parity with interstate rates. Additional subsidies from the Universal Access Fund sought by Tier 2 LECs electing alternative regulation may be applied for under the procedures set forth in OCGA § 46-5-167.

Under OCGA § 50-13-19 (h) (1), the Superior Court was empowered to reverse the decision of the PSC if it was in violation of a statutory provision. Bd. of Natural Resources v. Walker County, 200 Ga. App. 301, 308 (407 SE2d 436) (1991). In reversing the PSC decision in this case, the Superior Court did not impermissibly substitute its judgment for that of the PSC as to the weight of the evidence on issues of fact, but ruled as a matter of law that the PSC interpretation of OCGA § 46-5-166 (f) (2) violated the statutory provisions. Accordingly, the Superior Court correctly reversed the PSC decision.

Decided February 12, 1998.

Thurbert E. Baker, Attorney General, Brenda H. Cole, Alan Gantzhorn, Assistant Attorneys General, for appellant.

Chorey, Taylor & Fell, Charles V. Gerkin, Jr., Sutherland, Asbill & Brennan, David I. Adelman, James S. Hurt, Peyton S. Hawes, Jr., for appellees.

Kennard B. Woods, John H. Maclean, amici curiae.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       Alltel Georgia Communications Corp.; Georgia Alltel Communications Co.; Alltel Georgia, Inc.; Georgia Alltel Telecom, Inc.; and Georgia AlltelCom Co. sought review of the final decision of the PSC in Docket No. 5825-U, styled In Re: Universal Services Access Fund.

       The PSC subsequently entered an “amendatory order” on December 18, 1996, after the appeal to the Superior Court. Although this order presented a “simplified” method of calculating revenue lost, the PSC specifically “maintain[ed] the prior Commission interpretation of OCGA § 46-5-166 (f) (2)” and “affirmfed] its prior decision.”


author: Judge Harold R. Banke.

text:
    A98A0099.
    CRAWFORD v. THE STATE.
    (497 SE2d 45)
   Judge Harold R. Banke.

Aaron Tyrone Crawford was convicted of possession of cocaine and pleaded guilty to misdemeanor obstruction of an officer. He enumerates four errors on appeal.

This case arose in the evening as Crawford walked down a street. As a marked patrol car neared him, the officer saw Crawford look up and then drop something. The officer drove on by and quickly circled the block. On his return, the officer saw that, rather than continuing down the street, Crawford had backtracked and was kneeling at the spot where he had dropped the object. After Crawford saw the patrol car, he straightened up and proceeded down the street. The officer confronted Crawford and ordered him back to the place he had been kneeling. When the officer found a baggie containing five or six rocks of crack cocaine at that spot, he arrested Crawford, who ran as the officer reached for his handcuffs. After a chase, the officer apprehended Crawford.

Prior to trial, the State notified Crawford that it intended to introduce evidence of two similar transactions. After the trial court determined that the similar transaction evidence was admissible, Crawford moved in limine to exclude prejudicial details of the similar transactions unnecessary to show similarity. The court excluded mention of driving without headlights, Crawford’s consumption of cocaine, and underage drinking, and the State agreed to exclude mention of prior sales of cocaine.

During testimony on one of the similar transactions the State asked the arresting officer how much cocaine was found during a consent search of Crawford’s room. When the witness did not recall exactly, the State asked whether it was more than one rock. The witness then stated, “If I recall correctly, we located several baggies of real crack cocaine along with several baggies of what was later determined to be fake cocaine.” Crawford then moved for mistrial, arguing that the State had introduced evidence on the sale of cocaine. Held:

1. Crawford contends the admission of the similar transaction evidence of his possession of counterfeit cocaine and the amount of actual cocaine violated the trial court’s order on his motion in limine. Although Crawford’s motion sought exclusion of evidence that he sold cocaine, it did not specifically address the exclusion of counterfeit cocaine or the amounts involved in the similar transactions. Consistent with Crawford’s motion, this evidence was not specifically excluded. The indictment for the similar transaction offense, which was admitted into evidence, charged possession only, rather than possessing counterfeit substances, or selling, trafficking, or possessing cocaine with intent to distribute. Thus, although jurors could infer from this evidence that Crawford sold the counterfeit cocaine, they could also infer that he unknowingly purchased it. Nor was the evidence of the amount specific enough to require the conclusion that Crawford was selling cocaine, particularly when he was only charged with possession. In any event, the evidence is sufficiently overwhelming to render the error, if any, harmless. McCann v. State, 200 Ga. App. 256, 258 (407 SE2d 482) (1991).

2. Crawford contends that the trial court erred in admitting testimony about the counterfeit cocaine when he was not given notice of the State’s intent to introduce evidence of that crime, an independent misdemeanor violative of OCGA § 16-13-78.2. See Pless v. State, 218 Ga. App. 603, 606 (2) (462 SE2d 472) (1995) (finding chalk having the appearance of crack cocaine a “counterfeit substance” within the meaning of OCGA § 16-13-78.2). We agree.

The purpose of Uniform Superior Court Rule 31.3’s notice requirement “is to allow the defendant to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses.” Hawks v. State, 223 Ga. App. 890 (1) (479 SE2d 186) (1996). In keeping with this purpose, the notice must specify the transaction to be introduced. USCR 31.3 (B). The State’s notice, which was specifically limited to “VGCSA, Obstruction, case number 32512” and “VGCSA case number 34511,” did not mention possession of counterfeit cocaine. Compare Wells v. State, 208 Ga. App. 298, 303 (2) (d) (430 SE2d 611) (1993). Nor was evidence of the counterfeit cocaine introduced at the Williams hearing. Thus, defense counsel had no opportunity to investigate the validity, relevance, or admissibility of this evidence. Hawks, 223 Ga. App. at 890 (1). Nor do we see how such evidence was relevant to the crime charged. Compare Waldrip v. State, 267 Ga. 739, 748 (11) (482 SE2d 299) (1997). Although the evidence came in through an unresponsive answer, the State bore the responsibility of instructing its witness to limit his testimony to admissible matters. Sessions v. State, 207 Ga. App. 609, 610 (2) (428 SE2d 652) (1993). Reversal is inappropriate, however, because the evidence was sufficiently overwhelming so as to preclude a finding that the error was harmful. See Jones v. State, 226 Ga. App. 721, 724 (1) (487 SE2d 618) (1997).

Decided February 12, 1998

Cook & Connelly, Todd M. Johnson, for appellant.

Kermit N. McManus, District Attorney, Kevin N. Salisbury, Assistant District Attorney, for appellee.

3. The trial court did not err in admitting evidence that Crawford ran from police during one of the similar transactions. The evidence showed a course of conduct and bent of mind similar to that in the instant case. See Hawks, 223 Ga. App. at 891 (1); see also Renner v. State, 260 Ga. 515, 517 (3) (b) (397 SE2d 683) (1990) (evidence of flight admissible to show consciousness of guilt). Crawford’s guilty plea on the obstruction charge does not change that fact, particularly when the plea was not actually entered until the trial’s conclusion.

4. The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find all the essential elements of possession of cocaine. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The officer’s testimony that he saw Crawford toss the baggie to the ground belies Crawford’s contention that no more than circumstantial evidence tied him to the cocaine. Thus, the State was not required to present evidence excluding a reasonable hypothesis of innocence. Compare Cooley v. State, 219 Ga. App. 176, 177 (464 SE2d 619) (1995); OCGA § 24-4-6.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A97A1893.
    APAC-GEORGIA, INC. v. RICHMOND COUNTY BOARD OF TAX ASSESSORS et al.
    (496 SE2d 488)
   Judge Harold R. Banke.

APAC-Georgia, Inc. (“APAC”) d/b/a Southern Roadbuilders appeals the trial court’s order granting summary judgment to the Richmond County Board of Tax Assessors (“the Board”) and Richmond County and denying APAC’s motion for summary judgment. APAC enumerates four errors, each challenging the trial court’s denial of an ad valorem tax exemption for that part of APAC’s machinery and equipment located in Richmond County for use on State highway projects.

Southern Roadbuilders is the Augusta division of APAC, a paving contractor with its headquarters and administrative offices in Cobb and DeKalb Counties. APAC’s predecessor bought the Augusta facility, which produces asphalt, in the late 1960’s. In the intervening years, APAC made significant improvements to the plant in order to receive certification as a State approved asphalt facility.

Over the years, APAC’s Augusta division has performed a number of paving jobs for the State, although the majority of its business is on non-State contracts. In 1993, APAC applied for exemptions from the county ad valorem tax personal property assessment for the tax years 1990 to 1993 for the portion of its equipment used by Southern Roadbuilders on State projects. In reviewing the denial of this application, the trial court determined that because APAC’s equipment was permanently situated within the taxing jurisdiction and was not so located solely for State projects, the exemption did not apply. APAC claims an entitlement to the exemption because it does not reside in Richmond County and its improvements in effect constituted the construction of a new plant which would not have been built but for State projects. Held:

1. APAC premised its application for a tax exemption on OCGA § 50-17-29 (e), which prohibits counties from taxing contractors “as a condition to or result of the performance of a contract, work, or services by such contractors” in connection with any work done for the State. We have interpreted the effect of OCGA § 50-17-29 (e) on several occasions. Most recently, we specifically recognized that APAC, a non-resident of the taxing county performing a percentage of its work for the State, qualified for a pro rata exemption on property not used exclusively on State projects. Gwinnett County Bd. of Tax Assessors v. APAC-Georgia, 215 Ga. App. 609, 610 (451 SE2d 798) (1994).

As in Gwinnett County &c. v. APAC-Georgia, this case cannot be resolved without reference to Gainesville Asphalt v. Hall County, 214 Ga. App. 679, 680 (1) (448 SE2d 721) (1994). There, we upheld the denial of the exemption to an asphalt company because its business, including its equipment and inventory, was permanently located in the taxing county. Gainesville Asphalt, 214 Ga. App. at 680-681 (1). In Gwinnett County &c. v. APAC-Georgia, we distinguished Gaines-ville Asphalt from other cases reaching contrary results based on that company’s undisputed permanent resident status and the fact that the availability of State projects was not a determinative factor in its choice of locations. Gwinnett County v. APAC-Georgia, 215 Ga. App. at 610; compare Lunda Constr. Co. v. Clayton County, 201 Ga. App. 106, 107-108 (410 SE2d 446) (1991). Moreover, the taxes in Gainesville Asphalt were not imposed as the result of the performance of a State contract. Gainesville Asphalt, 214 Ga. App. at 680 (1).

Decided January 26, 1998

Reconsideration denied February 13, 1998

William R. Buzo, Charles H. Ivy, for appellant.

The record here shows that APAC would not long remain in the County absent the State projects. See Gwinnett County v. APACGeorgia, 215 Ga. App. at 610 (finding that APAC was not a Gwinnett County resident despite the presence of its Norcross Asphalt Facility there). APAC’s Richmond County plant, which was expanded to accommodate State work requirements, is simply bolted to a frame and is portable. Furthermore, as noted, the availability of State work is a determinative factor in APAC’s choice of locations. Under these circumstances, we find that the tax, imposed solely due to APAC’s presence in the taxing county, contravened OCGA § 50-17-29 (e)’s stricture against county taxation of contractors as a result of work performed on the State’s behalf.

Notwithstanding Richmond County’s arguments to the contrary, nothing in OCGA § 50-17-29 (e) or the cases construing it requires that the equipment at issue must be used solely on State projects. Id. Nor have we found any requirements that proximity to State work be the sole reason for moving to the taxing county or that the majority of work be performed for the State. Under these circumstances, the decision to grant summary judgment to Richmond County was improper. We remand for entry of judgment on APAC’s behalf.

2. In light of this finding, we need not reach the remaining enumerations.

Judgment reversed and case remanded with direction.

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

Burnside, Wall, Daniel, Ellison & Revell, James B. Wall, Lori S. D’Alessio, for appellees.

       During those respective years, Southern Roadbuilders used the machinery at issue on State projects 42.63 percent, 44.5 percent, 27.84 percent, and 12.31 percent of the time.

       OCGA § 50-17-29 (e) (1) states in pertinent part:
      “Except as otherwise provided in paragraph (2) of this subsection, no city, county, municipality, or other political subdivision of this state shall impose any tax, assessment, levy, license fee, or other fee upon any contractors or subcontractors as a condition to or result of the performance of a contract, work, or services by such contractors or subcontractors in connection with any project being constructed, repaired, remodeled, enlarged, serviced, or destroyed for, or on behalf of, the state. . .

       Nor is there any evidence that the Gainesville plant was part of another entity.