text:
    A00A1614.
    JOHNSON v. THE STATE.
    (539 SE2d 605)
   Blackburn, Presiding Judge.

Anthony Johnson appeals his conviction by a Hall County jury of two counts of armed robbery, hijacking a motor vehicle, theft by taking a motor vehicle, aggravated assault, and two counts of theft by taking. Johnson claims that the evidence was insufficient to support his convictions for armed robbery, aggravated assault, and hijacking a motor vehicle. Johnson also argues that the trial court erred by admitting into evidence a sign prohibiting smoking near gasoline pumps, by refusing to allow him to argue the significant disparity in sentencing between armed robbery and robbery by intimidation, and by sentencing him separately on each count of armed robbery. In sentencing Johnson, the trial court merged Johnson’s aggravated assault conviction into his armed robbery convictions and Johnson’s theft by taking a motor vehicle conviction into his conviction for hijacking a motor vehicle, but the trial court did not merge the two armed robbery convictions. We agree that the trial court should have merged Johnson’s two armed robbery convictions for purposes of sentencing, and we remand the case with instructions to the trial court to vacate one of the armed robbery convictions. Otherwise, and for the reasons set forth below, we affirm.

Viewing the evidence in a light most favorable to the jury verdict, the record shows that Zul Charania managed an RK Food Mart in Buford. In March 1998, Johnson grabbed two cases of beer and left the store without paying. Charania recorded the tag number of Johnson’s car and called the police. A few days later, Johnson bought a pack of cigarettes from Charania. He left the store and returned for a pack of matches, and then left again, only to return with a gasoline-filled oil can, which he put on the counter. Johnson then picked up a can of motor oil. As Charania was processing the sale, Johnson doused Charania with gasoline. Charania felt the gasoline in his eyes, and he could smell its fumes. Johnson then puffed repeatedly on his lit cigarette, causing the flame at its end to intensify, and profanely insisted that Charania give him “the money” or he would burn Charania with the cigarette. Johnson demanded that Charania give him his wallet and car keys, and Charania complied. He then directed Charania to open the register, and Charania did so with difficulty because he was frightened. Johnson took the money from the register and the car keys from Charania and, leaving the wallet on the counter, left the store, got into Charania’s 1997 Honda, and drove away. The police later presented Charania with a photographic lineup. Charania identified Johnson as the perpetrator.

1. In his first enumeration of error, Johnson argues that the evidence was insufficient to support his convictions for armed robbery. The use of an offensive weapon, “or any replica, article, or device having the appearance of such weapon,” is an essential element of armed robbery and must be proven by the State. OCGA § 16-8-41 (a). Johnson maintains that the State did not prove that his lit cigarette constituted an offensive weapon. However, “[t]he question is whether the defendant’s acts created a reasonable apprehension on the part of the victim that an offensive weapon was being used.” (Punctuation omitted.) Oliver v. State. It is reasonable to believe that Johnson’s lit cigarette became very menacing from the viewpoint of the gasoline-soaked victim. And the victim’s testimony showed that he felt threatened for his life:

Q: Why were you scared? A: Because he had put fuel on me and I was real scared that he was going to burn me, you know. I’m very scared of burn. I wouldn’t mind dying natural death, but somebody putting a flame to you and burning you, that’s a scary thought of dying that way.

The State showed that Johnson used an offensive weapon for purposes of the armed robbery statute. We have reviewed the evidence and find that a rational trier of fact could find Johnson guilty beyond a reasonable doubt of armed robbery. See Jackson v. Virginia.

2. Johnson argues that the evidence was insufficient to convict him of aggravated assault. OCGA § 16-5-21 (a) (2) provides that the crime of aggravated assault consists of an assault “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Johnson claims that the State failed to show his lit cigarette was an offensive weapon within the meaning of this statute. For objects not considered deadly weapons per se, the State has the burden of showing that the circumstances under which the object was used made it a deadly weapon. Talley v. State. In Talley, for example, we held that the evidence was sufficient to show that a lamp was used as a deadly weapon. Id. Here, the State did not present specific evidence that the lit end of a cigarette, when pressed against gasoline-soaked clothes, skin or hair, would cause the gasoline to ignite. Nevertheless, “ ‘|j]urors are entitled to use their own common sense as intelligent human beings on many questions.’ ” Lanier v. State* And the nature of a “weapon” is a question of fact for the jury; for example, we have held that “[w]hether or not [a] pocket knife . . . constituted a deadly (or offensive) weapon was properly for the jury’s determination.” Hambrick v. State.

The jury viewed the store’s surveillance videotape showing Johnson using his cigarette to threaten Charania. It is common knowledge that gasoline is flammable and that the lit end of a cigarette is extremely hot, and it stands to reason that one who is set aflame is likely to suffer serious burns, if not death. Accordingly, the jury was authorized to find that the cigarette, in conjunction with the gasoline, constituted an offensive weapon likely to cause serious bodily injury.

We have reviewed the evidence and find that a rational trier of fact could find Johnson guilty beyond a reasonable doubt of aggravated assault. See Jackson v. Virginia, supra.

3. Johnson claims that the evidence was insufficient to support his conviction for hijacking a motor vehicle. OCGA § 16-5-44.1 (b) provides:

A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.

Johnson argues that the Honda, which was parked outside the store, was not in Charania’s “person or presence.” We have construed similar language in the armed robbery statute, OCGA § 16-8-41 (a). In that context, “ ‘[immediate presence’ has been held to extend ‘fairly far,’ and robbery convictions are upheld even out of the physical presence of the victim.” Culver v. State. Although Charania was not actually in his car, it was parked just outside the store, and he could have accessed it within seconds. Also, Charania’s car keys, which are integral to the car’s operation, were taken directly from his person upon threat of injury. Given these circumstances, the jury was authorized to find that Johnson took the Honda from Charania’s “person or presence” for purposes of the offense of hijacking a motor vehicle.

We have reviewed the evidence and find that a rational trier of fact could find Johnson guilty beyond a reasonable doubt of hijacking a motor vehicle. See Jackson v. Virginia, supra.

4. Johnson argues that the trial court erred in sentencing him for two separate counts of armed robbery. In its brief, the State admits the trial court erred in not merging Johnson’s armed robbery convictions. In Count 1, Johnson was charged with armed robbery for taking the property of RK Food Mart. In Count 2, he was charged with taking the manager’s wallet and keys. Our Supreme Court has held that robbery is a crime against possession which may only be committed against a person and not against a corporation or inanimate object. See Creecy v. State; Snelling v. State. Here, the property in Count 1 and the property in Count 2 were taken from the possession of Charania in the same incident; the two counts constitute a single crime. Therefore, we order that the case be remanded to the trial court to vacate one of Johnson’s armed robbery convictions. See Jackson v. State.

5. Johnson claims the trial court erred by admitting into evidence a sign posted at the convenience store prohibiting smoking around the gas pumps. The sign says “No Smoking Turn Off Engine.” Johnson claims the sign is hearsay. The trial court, in admitting the sign over objection, ruled that it “corroborat[ed] this witness’ testimony that he was scared and thought he was going to be set on fire.” We agree with the trial court that the sign was admissible to show the victim’s state of mind. See, e.g., Sturkey v. State; Dixon v. State. Charania testified as follows:

Q: And was there any correlation between those signs and your fear? A: I know that we have signs at the store that you’re not supposed to smoke while pumping gas and anything, you know, and you should have your ignition off, so I knew that much, that if somebody — it must be very dangerous, that’s why we have the signs up there not to smoke while still pumping gas. So I thought maybe that he might could bum me with those cigarettes.

The sign contributed to the victim’s apprehension of Johnson’s cigarette. Therefore, it was admissible as original evidence of the victim’s state of mind at the time of the crime.

6. In his final enumeration of error, Johnson claims the trial court erred in refusing to allow him to argue the significant sentencing disparity between armed robbery and robbery by intimidation. The jury acts as a finder of fact. The legislature determines the range of sentences for a crime. The trial court properly refused to allow Johnson to argue to the jury that, in effect, the legislature was wrong in creating its sentencing structure. Johnson admits his position is not supported by precedent. See, e.g., Hill v. State; Golden v. State. But he goes on to argue that a sentence imposed on one convicted of armed robbery not using a weapon capable of causing serious bodily harm is unconstitutionally disproportionate because it subjects the perpetrator to a minimum ten-year sentence for a crime in which the victim was not actually subject to serious physical injury. Even assuming that no weapon capable of causing serious bodily injury was involved in this case, “[t]he legislature’s choice of sentence is insulated from judicial review unless it is wholly irrational or so grossly disproportionate to the severity of the crime that it constitutes cruel and unusual punishment.” Isom v. State. We note that the fear imposed on a victim who reasonably believes he or she is being threatened by a weapon capable of causing serious bodily harm, but which is not so capable, is no less real than the fear of a victim faced with an actual deadly weapon. We find no basis in Johnson’s constitutional arguments.

Decided September 22, 2000.

Maddox, Cummings & Kelley, W. Andrew Maddox, for appellant.

Lydia J. Sartain, District Attorney, Jason J. Deal, Ted C. Baggett, Assistant District Attorneys, for appellee.

Judgment affirmed in part and reversed in part.

Eldridge and Barnes, JJ, concur.

        Oliver v. State, 232 Ga. App. 816, 817 (1) (503 SE2d 28) (1998).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Talley v. State, 137 Ga. App. 548, 550 (1) (b) (224 SE2d 455) (1976).

        Lanier v. State, 237 Ga. App. 875, 877 (4) (517 SE2d 106) (1999).

        Hambrick v. State, 174 Ga. App. 444, 445 (1) (330 SE2d 383) (1985).

        Culver v. State, 230 Ga. App. 224, 231 (6) (496 SE2d 292) (1998).

        Creecy v. State, 235 Ga. 542, 543-544 (5) (221 SE2d 17) (1975).

        Snelling v. State, 215 Ga. App. 263, 268 (2) (450 SE2d 299) (1994).

        Jackson v. State, 236 Ga. 98 (222 SE2d 380) (1976).

        Sturkey v. State, 271 Ga. 572, 573-574 (2) (522 SE2d 463) (1999).

        Dixon v. State, 256 Ga. 658, 660 (2) (352 SE2d 572) (1987).

        Hill v. State, 239 Ga. 799 (1) (239 SE2d 15) (1977).

        Golden v. State, 213 Ga. 481 (3) (99 SE2d 882) (1957).

        Isom v. State, 261 Ga. 596, 597 (1) (408 SE2d 701) (1991).


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A00A1543.
    ALL ANGLES CONSTRUCTION & DEMOLITION, INC. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (539 SE2d 831)
   Smith, Presiding Judge.

All Angles Construction & Demolition, Inc. appeals the trial court’s grant of summary judgment in favor of Metropolitan Atlanta Rapid Transit Authority in an action by All Angles to recover damages for breach of a demolition contract. All Angles contends the trial court erred in awarding summary judgment to MARTA because genuine issues of material fact remain. We do not agree, and we affirm the summary judgment.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards.

(Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

All Angles contends MARTA breached the contract in three ways: (1) by failing to disclose that it did not own the property in issue and failing to prevent others from removing salvageable items from the property prior to demolition, thereby causing All Angles to lose salvage bargained for under the contract; (2) by failing to have the gas turned off at the site before issuing its Notice to Proceed, thereby causing delay and extra equipment expense; and (3) by accelerating the contract from 30 days to 19 days. Under each of these theories of recovery, we conclude that MARTA showed that the evidence was insufficient to create a jury issue as to an essential element of the claims of All Angles, Summary judgment in favor of MARTA was therefore proper.

1. All Angles claims that the contract entitled it to remove items from the property to be demolished and salvage them and that it was denied this element of its anticipated profit.

William Moody, Jr., the owner of All Angles, testified on his deposition that he bid the job believing that MARTA owned the property and that the salvage items would become the property of the successful bidder. He claimed on his deposition, and now argues on appeal, that such a provision is the standard custom in the construction and demolition industry and the contract must be read as including this implied term. MARTA did not own this property, however, at the time of the bidding or demolition. And by the time the property was turned over to All Angles, most of the salvageable items had been removed from the property. All Angles attributes this loss either to the owners of the property removing the items or to MARTA’s failure to secure the property from pilfering by third parties.

Both parties cite Wood v. Frank Graham Co., 91 Ga. App. 621 (86 SE2d 691) (1955), a trover case in which usage of trade was offered to negate an allegation of conversion. All Angles cites the portion of the case stating that “ ‘the custom of a trade is admissible, not as ordinary parol evidence, but as law — entering into the contract just as any other law does.’ ” Id. at 623. But as noted by MARTA, Wood also provides that such “custom of any business or trade shall be binding only when it is of such universal practice as to justify the conclusion that it became, by implication, a part of the contract.” (Citation and punctuation omitted.) Id. at 624.

The Uniform Commercial Code deals with course of dealing and usage of trade as well. OCGA § 11-1-205 (2) provides, in pertinent part:

A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts.

As asserted in Wood, unless the usage of trade is so well known that it may be judicially noticed, the burden of proving a usage of trade is on the party who asserts it. Id. at 624. While the usage of trade urged here may well exist, it is not so well known as to be judicially noticed. And the only “proof” of such usage of trade was its assertion by Moody. Unlike the situation in Wood, it was not “proved by several witnesses” in the trade or industry and acknowledged by the opposing party. Id. at 627. No other witnesses testified to the usage of trade.

Shelley Christian, MARTA’s Senior Real Estate Officer, who was in charge of this demolition project, testified on deposition that he was aware that demolition contractors made profit off salvage. But MARTA had no particular interest in or official position on salvage. MARTA was interested only in the return to it of the land itself, of the “dirt.” Once the property was turned over for demolition, as long as the “dirt” was returned to MARTA on schedule, what was done with the property demolished was up to the contractor. This was insufficient to prove a usage of trade and create a question of fact for the jury. See Ga. Timberlands v. Southern Airway Co., 125 Ga. App. 404, 406 (2) (b) (188 SE2d 108) (1972).

2. All Angles makes a similar argument regarding custom and usage of trade with regard to the responsibility for ensuring that the gas was turned off at the property. It argues that the custom was that MARTA would have the gas turned off before issuing a notice to proceed. All Angles points to a prior instance, when MARTA made a “similar mistake” and issued to All Angles a notice to proceed on a demolition project before the gas had been turned off, resulting in All Angles rupturing a gas line and starting a fire. In that instance, MARTA reimbursed All Angles for its damages.

As with its arguments concerning salvage loss, however, All Angles has not provided any evidence of usage of trade other than the testimony of Moody, which is insufficient. Ga. Timberlands, supra. Moreover, the contract itself provides:

The contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof. Any failure by the contractor to do so will not relieve him from responsibility for successfully performing work without additional expense to the Authority. The Authority assumes no responsibility for any understanding or representations concerning conditions made by any of its officers or agents prior to the execution of the contract, unless such understanding or representations by the Authority are expressly stated in the contract.

The quoted language does not expressly mention the term “utilities,” as pointed out by All Angles. But gas flow to the property is clearly a condition that can affect the demolition work and therefore falls within the purview of this paragraph.

OCGA § 11-1-205 (4) provides, in pertinent part:

The express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control both course of dealing and usage of trade.

Even if All Angles had successfully established a usage of trade, therefore, the contract language would control.

On his deposition, Christian admitted paying All Angles for damage it incurred to equipment in the previous incident when the gas had not been turned off. He stated, however, that this payment was made in error since the same contract provision was in effect in the prior instance. Because he did not have the contract then, he was not aware of the provision, and he erroneously authorized payment. We cannot agree that All Angles should be rewarded for MARTA’s past mistake that resulted in All Angles receiving a windfall.

Given the plain and unambiguous language in the contract, no material facts remain to create a jury question as to responsibility for ensuring that the gas was turned off prior to the start of demolition.

3. All Angles maintains that the record “clearly shows” that it suffered damages because MARTA accelerated the contract from 30 days to 19 days. The damages sought were again compensation for the profit All Angles expected to make by having more time to salvage items from the demolition site. Christian readily admitted that MARTA accelerated the contract. But even though All Angles received the notice to proceed on June 24, 1997, it did not start working on the project until “somewhere around the 7th, 8th or 9th of July,” a delay of at least 13 days.

More importantly, since the contract did not provide for salvage and All Angles did not prove that it was entitled to salvage as a usage of trade, these damages would not be recoverable in any event. In addition, even had the damages been recoverable, it was necessary that the amount of such damages be established with reasonable certainty. Post Realty Assoc. v. DSL Assoc., 228 Ga. App. 678, 679 (1) (492 SE2d 600) (1997). All Angles based its claim for acceleration damages upon the loss of time to recover salvage but did not show how much salvage it would have had or what it would sell for. It is the plaintiff’s burden to show the damages, and the plaintiff cannot do this by resorting to “speculation, conjecture and guesswork.” Wipo, Inc. v. Cook, 187 Ga. App. 7, 9 (369 SE2d 306) (1988).

Decided September 25, 2000.

Hughes & Bailey, David R. Hughes, for appellant.

Amy B. Meyer, for appellee.

Finally, since All Angles presented a claim for lost salvage, any such recovery under the guise of “acceleration damages” would be a double recovery. As in the previously addressed claims, no question of fact remains for jury resolution as to this claim for damages.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       We note that the complaint appears to suggest, alternatively, that MARTA represented to All Angles that salvage was included in the contract. But Moody admitted that no one from MARTA represented any such thing.


author: Miller, Judge.

text:
    A00A1719.
    ASSOCIATED ELECTRICAL CONTRACTORS, INC. v. EDLEN ELECTRICAL EXHIBITION SERVICES OF GEORGIA, INC.
    (539 SE2d 835)
   Miller, Judge.

Associated Electrical Contractors, Inc. subcontracted Edlen Electrical Exhibition Services of Georgia, Inc. to construct electrical outlets for certain outdoor kiosks for the 1996 Olympics in Atlanta. The parties agreed to a price of $69,000 for the services, with $34,500 paid in advance. Edlen performed the promised services plus some additional work, but Associated refused to pay the remaining $34,500 or for the additional work. Associated claimed that payment to Edlen was contingent on Associated receiving payment from a third party, which did not occur, and that for this reason it had ordered Edlen to cease performance after two days of work (worth approximately $20,000). Edlen countered that it received no order to cease and that payment was not contingent.

Edlen sued Associated for breach of contract. Associated asserted the above defenses and added that the contract was illegal and therefore unenforceable in that Edlen allegedly did not employ a person possessing the statutorily required electrical contractor’s license. Associated also counterclaimed for a partial or full return of the advance payment, arguing that Edlen was not authorized to continue after receiving the instruction to cease and that Associated had not received payment from the third party. The court directed a verdict against Associated on the counterclaim. The jury found in Edlen’s favor on the breach of contract claim, awarding $34,500.

Decided September 25, 2000.

Small, White & Marani, Gus H. Small, Jr., for appellant.

Melvin Drukman, for appellee.

Associated appeals, contending that the court erred in directing a verdict against Associated on its illegality defense and on its counterclaim. We hold that the court did not direct a verdict on the illegality defense and that no harm arose from the court directing a verdict on the counterclaim. Thus, we affirm.

1. Although the court indicated it was “going to” direct a verdict against Associated on its illegality defense, the court in fact did not. Rather, the court carefully instructed the jury on the elements of the defense, specifically charging that to recover Edlen was required to show it held an electrical contractor’s license at the time the contract was entered into. As there was evidence that Edlen employed a full-time person having such a license at the relevant time, we will not disturb the verdict.

2. The second error enumerated is the directed verdict on the counterclaims for recoupment and quantum meruit, as alleged in Associated’s amended answer. The evidence in support of these claims is the testimony that, while $34,500 (one-half) was paid up front, Edlen was instructed to stop one-third of the way through, when the reasonable value of the services rendered was only $20,000. Also, some testimony showed that payment to Edlen was contingent on Associated receiving payment from a third party, which payment did not occur. By awarding Edlen the remainder of the initial contract price, the jury necessarily found that payment was not contingent (or if it were, the contingency was met) and that Edlen was authorized to complete the contract. “[I]t must necessarily follow that they found against [any arguable] plea of recoupment, and any error in the charge or the failure to charge on the measure of damages applicable thereto was harmless. [Cits.]”

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       See OCGA § 43-14-8 (f); Bowers v. Howell, 203 Ga. App. 636, 637 (1) (417 SE2d 392) (1992).

       See OCGA § 43-14-8 (f) (electrical contracting company must have person holding a Georgia license who is regularly connected with the company and who is engaged in such business on a full-time basis); K-Mart Corp. v. Lovett, 241 Ga. App. 26, 27 (525 SE2d 751) (1999) (appellate court affirms if there is any evidence to support the jury’s verdict).

        Shaheen v. Kiker, 105 Ga. App. 692, 696-697 (4) (125 SE2d 541) (1962); accord Ross C. Shaw, Jr., Inc. v. Reynolds, 221 Ga. App. 548, 549 (2) (472 SE2d 125) (1996).


author: Johnson, Chief Judge.

text:
    A00A1187.
    POPE v. PULTE HOME CORPORATION.

      (539 SE2d 842)
   Johnson, Chief Judge.

Pulte Home Corporation builds houses in the Atlanta area. Jeff Pope is a home inspector who has inspected Pulte houses for prospective home buyers. Pulte instructed Pope not to inspect any more of its properties because he did not have a business license from the counties where he was conducting the inspections. Pope ignored the instruction and inspected other Pulte homes. Pope’s attorney also sent a letter to Pulte indicating that Pope intended to continue inspecting Pulte properties.

Pulte filed the instant action seeking to enjoin Pope from trespassing on its properties. The court issued a temporary order restraining Pope from entering Pulte properties. Pope thereafter entered another Pulte property to conduct an inspection. The court then issued a permanent injunction against Pope, prohibiting him from entering Pulte properties.

Pope appeals from the court’s order. He contends that the court erred in granting the injunction and in refusing to join an indispensable party. The contentions are without merit, and we therefore affirm the trial court’s judgment.

1. The term “property” includes not only the land possessed, but also the rights of the owner in relation to that land. The owner has the rights to possess, use and dispose of the property and the corresponding right to exclude others from using the property.

In the instant case, Pulte owned the properties in question and thus had the right to exclude Pope from them. Pulte exercised that right by instructing Pope not to enter its properties. But Pope repeatedly ignored the instruction.

Every act which unlawfully interferes with a private property owner’s absolute right to enjoy its property is a tort for which an action shall lie. A person commits trespass when he knowingly and without authority enters upon the land of another after having received prior notice that such entry is forbidden. If there is a continuing trespass, it may be enjoined in equity.

Here, Pope ignored not only Pulte’s instructions forbidding him from entering its properties, but also the court’s temporary injunction prohibiting his entry onto Pulte properties. Moreover, he threatened to continue entering Pulte properties regardless of Pulte’s wishes. Given Pope’s repeated trespasses and his threats to trespass again, the trial court did not abuse its discretion in permanently enjoining Pope from continuously trespassing upon Pulte properties. Absent an abuse of discretion, the trial court’s entry of an injunction must be sustained.

2. Pope claims that the court erred in denying his motion to dismiss the action because Pulte failed to add an indispensable party, i.e., a home buyer who had hired Pope to inspect a Pulte home. Contrary to Pope’s claim, he has made no showing that the buyer was an indispensable party.

A party is indispensable if (1) the existing parties cannot obtain complete relief without the presence of the other party, or (2) the merits of the case cannot be decided without prejudicing the other party’s rights. Pope has made no real argument, and . certainly no showing, that the buyer’s presence was necessary in order for him or Pulte to obtain complete relief.

Rather, Pope argues that the buyer’s rights under her home purchase contract with Pulte were prejudiced by the court’s decision in her absence. Pope reasons that under the contract the buyer was entitled to choose Pope as her home inspector, and such right to choose her inspector has been prejudiced by the court’s ruling. Pope’s reasoning is flawed because the home purchase contract does not give the buyer the right to choose Pope as her inspector.

The contract provision that Pope relies on to support his argument is entitled “VISITING THE HOME.” It provides that Pulte has advised the buyer, and she understands, that the home construction site is dangerous and that Pulte discourages the buyer from visiting the house. Nevertheless, if the buyer decides to visit the home construction site, she agrees that she assumes the risk of such a visit and that she will be responsible for and hold Pulte harmless for any damages caused by her visit or the visit of any of her family members, invitees or guests.

This paragraph is nothing more than a warning for the buyer to stay away from a dangerous site and a “hold harmless” clause. While the provision recognizes that the buyer might visit the site with an invitee, it in no way establishes that the buyer is entitled to choose Pope, or any other person whom Pulte has forbidden from entering its property, to inspect the home.

Decided September 26, 2000.

Cornelison & Van Gelderen, Rex P. Cornelison III, Leon Van Gelderen, John A. Ziolo, for appellant.

Wilson, Brock & Irby, Richard W. Wilson, Jr., James S. Teague, Jr., for appellee.

Because Pope and Pulte could obtain complete relief without the home buyer’s presence, and because the buyer’s rights were not prejudiced by the decision, she was not an indispensable party. The court therefore did not abuse its discretion in denying Pope’s motion to dismiss.

3. Pope’s remaining arguments are without merit and provide no grounds for reversing the trial court’s judgment.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

        Dept. of Transp. v. Arnold, 243 Ga. App. 15, 18 (1) (530 SE2d 767) (2000).

       Id.

       OCGA § 51-9-1.

       OCGA § 16-7-21 (b) (2). See also Bullock v. Jeon, 226 Ga. App. 875-876 (1) (487 SE2d 692) (1997).

        Courtesy Leasing v. Christian, 266 Ga. 187 (465 SE2d 443) (1996).

       See Lanier v. Ocean Pond Fishing Club, 253 Ga. 549, 550 (2) (322 SE2d 494) (1984) (no error where court enjoined appellant from continuing to disregard appellee’s repeated requests that he not boat or fish upon its lake property).

       See Essex Group v. Southwire Co., 269 Ga. 553, 557-558 (2) (501 SE2d 501) (1998).

       OCGA § 9-11-19 (a); Solid Rock Baptist Church v. Freight Terminals, 184 Ga. App. 111, 112 (361 SE2d 200) (1987).

       See Altama Delta Corp. v. Howell, 225 Ga. App. 78, 81 (3) (483 SE2d 127) (1997).


author: MIKELL, Judge.

text:
    A00A1639.
    FURLONG v. DYAL et al.
    (539 SE2d 836)
   MIKELL, Judge.

Sara Ann Furlong filed a negligence action against Faith Ann Dyal, Richard Albert Nixon, Jr., and Nixon’s employer, Chancy Health Care Services, Inc., to recover damages for injuries she sustained in a multi-car collision. Furlong served State Farm Mutual Automobile Insurance Company, her uninsured motorist insurance carrier, with a copy of the complaint, and State Farm answered. The defendants moved for summary judgment. In a two-sentence order, the trial court granted the motions. Furlong appeals. For reasons which follow, we reverse.

The record reveals that on January 24, 1996, during heavy lunch-hour traffic, Furlong stopped her car in the northbound left lane of North Ashley Street in Valdosta and waited behind a car which had signaled its intention to turn left onto Pendleton Avenue. Two cars stopped behind Furlong without incident. However, when Dyal drove up behind the stopped cars, she was unable to stop in time to avoid a collision. Dyal slammed on her brakes, skidded, and struck the rear of the car in front of her. Nixon, who was driving a pickup truck, came along behind Dyal too late to make a timely stop, and the front of his truck collided with the back of Dyal’s vehicle. During this multi-car collision, the car in front of Dyal was hit in the rear and forced forward into the back of the car immediately behind Furlong (“Car 4”). Car 4 was propelled forward and to the right.

1. Defendants claim that Furlong cannot establish the element of causation as a matter of law because she cannot prove that Car 4 struck her car. We disagree.

To prevail on a motion for summary judgment, a defendant must demonstrate “that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s claim.”

We review a trial court’s grant of summary judgment de novo, and we view the evidence in the light most favorable to the nonmovant.

“A reasonably] close causal connection between the conduct and the resulting injury” is an essential element of a negligence action. In claiming a conclusive absence of such a nexus, defendants point to the testimony of the driver of Car 4, who positively and unequivocally stated that her car did not collide with Furlong’s vehicle. Furlong, on the other hand, lost consciousness during the incident and cannot recall an impact to her car. The police officer who responded to the scene of the accident, Robin Mott, noted no visible damage to the front of Car 4, although she observed both old and new damage to the rear of Furlong’s car. The driver of the car behind Car 4 testified that her vehicle struck the rear of Car 4; however, she did not recall striking the back of Furlong’s car, although she remembered that her car was struck “many times.”

The defendants presented direct evidence that Furlong’s car was not struck during the collision. They are nevertheless not entitled to summary judgment on the issue of causation, because Furlong has come forward with sufficient circumstantial and opinion evidence to create a jury question on whether her car was struck in the rear.

Circumstantial evidence may be sufficient to create a jury issue in the face of direct evidence to the contrary.

Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.

Officer Mott testified that she saw evidence of both new and old damage to the rear of Furlong’s car. Furlong testified that her car had been involved in a rear-end collision approximately a year before, but she had not been involved in an automobile collision since that time. Furlong’s car was positioned in immediate proximity to the other cars involved in the multi-car collision. Furlong lost consciousness during the collision and awoke with her head on the steering wheel. Moreover, Furlong was diagnosed with facial bone fractures and crushed sinuses. She has received periodic medical treatment for dizziness and headaches since the collision. A jury would be authorized to find on the basis of the totality of the circumstantial evidence presented that Furlong’s car was struck in the rear during the multicar collision, despite direct evidence to the contrary.

Furlong also presented the opinion testimony of Officer Mott that Furlong’s car was struck in the collision. Opinion evidence may be sufficient to preclude the grant of summary judgment. But the opinion must be probative. It may not be purely speculative or speak to an ultimate issue requiring a mixture of both law and fact in its determination. And to be considered in ruling on a motion for summary judgment, opinion evidence must be admissible at trial.

Defendants challenge Officer Mott’s qualification to testify to what occurred during the multi-car collision because she was not trained as an expert in automobile accident reconstruction. Officer Mott is a police officer with twenty-three years of experience, including seven years of traffic duty, and trained in collision investigation.

Since it has been held that an experienced auto-wrecker driver is qualified to state facts and give [her] opinion from these facts as to the point of impact and between what objects there should not be any doubt that a police officer with investigative training and experience on automobile collisions is an expert. Of course the credibility and weight to be given [her] testimony [are] for the jury.

Officer Mott is qualified to give opinion testimony on whether or not Furlong’s car was struck in the collision.

Defendants further argue that Officer Mott’s opinion testimony was based on inadmissible hearsay testimony, speculation, and assumption. Furlong told the officer that her vehicle was hit from the rear. Officer Mott also spoke to an eyewitness, who reported seeing the vehicles driven by Dyal and Nixon striking the stopped vehicles. Officer Mott noted the severity and location of the damage on each vehicle. In her affidavit, she states

Based on my observations and investigation at the scene of the accident, and my interviews with Defendants Dyal and Nixon, it is my opinion that the subject accident and resulting injuries and damages sustained by all identified vehicles were the result of Defendant Dyal and Defendant Nixon striking the rear of the vehicles in front of them.

Standing alone, the officer’s affidavit shows a sound basis for forming an opinion. Defendants, however, point to portions of Officer Mott’s deposition testimony, where she refers to her “assumptions.” And the defendants argue that the eyewitness only provided inadmissible hearsay. But Officer Mott’s deposition testimony also supports her statement that she interviewed Dyal and Nixon and physically examined the damage to the vehicles. While defendants attack Officer Mott’s testimony by highlighting selected portions of her deposition, the deposition does not show that her testimony regarding the collision was necessarily speculative, baseless, or otherwise inadmissible. Officer Mott’s opinion that Furlong’s car was struck during the collision satisfies Furlong’s burden of coming forward with evidence on the element of causation.

2. Defendants Nixon and Chancy Health Services maintain that the evidence does not support a causal connection between Nixon’s actions and damage to Furlong, if any. They claim that even if Furlong could show that she was injured during the collision, she cannot show two separate impacts to her car. However, Officer Mott testified in her deposition that:

The basis of what was told to me, that it was a continuous reaction by both vehicle 1 and 2, that when they — like, they’re driving down the road; they react; they see vehicles in front of them. [Nixon’s] vehicle 1 sees [Dyal’s] vehicle 2 slamming on brakes. [Dyal’s] vehicle 2 slams on brakes because she sees the vehicles in front of her. It’s a continual reaction, 1, 2, 3, 4, 5. It was just — it was continuous. It was not here we’ve got one accident, and then a few seconds later or five seconds later, just another accident. I don’t see it that way. I see it as one continuous accident.

Decided September 26, 2000.

O. Wayne Ellerbee, John K. Edwards, Sr, for appellant.

Coleman, Talley, Newbern, Kurrie, Preston & Holland, George T. Talley, Edward F. Preston, Young, Thagard, Hoffman, Scott & Smith,

Mott goes on to testify, “I believe that... in talking to the witnesses and talking to the drivers, that 1 [Nixon] and 2 [Dyal] hit at the same time, causing 2 [Dyal] to — 1 [Nixon] and 2 [Dyal] hitting 2, 3, 4 and 5 in a chain reaction.”

If a trier of fact were to find “one continuous accident,” it would be authorized to find Dyal and Nixon contributed concurrently to a chain of collisions leading directly to Furlong’s injuries and to find Nixon liable as a joint tortfeasor with Dyal.

3. Next, contrary to Dyal’s argument, the record reveals evidence that she was negligent. Dyal and Nixon were issued citations for following too closely, and subsequently they forfeited their bonds in connection with the charges. Their bond forfeitures are admissions against interest and are admissible as evidence of negligent conduct.

4. Finally, State Farm argues that the trial court’s grant of summary judgment to Nixon and Dyal constituted a determination on the merits of Furlong’s uninsured motorist claims. In view of the outcome here, we need not address this argument.

Because Furlong has come forward with sufficient evidence to create a jury question on each essential element of her negligence claim, the trial court’s grant of the defendants’ motion for summary judgment was in error and must be reversed.

Judgment reversed.

Pope,. P. J., and Miller, J., concur.

F Thomas Young, Matthew R. Lawrence, Susan H. Sumner, Daniel Bullard IV, Jon-Selhy R. Hawk, for appellees.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Taylor v. Gelfand, 233 Ga. App. 835-836 (505 SE2d 222) (1998).

       See Lau’s Corp., supra, 261 Ga. at 492.

       (Citations and punctuation omitted.) Michelin Tire Corp. v. Irving, 185 Ga. App. 783, 784 (1) (366 SE2d 156) (1988).

       While direct evidence may often be preferable to circumstantial evidence, it has been said that “ ‘There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog has passed.’ ” Menke v. First Nat. Bank of Atlanta &c., 168 Ga. App. 495, 503 (309 SE2d 835) (1983) (Deen, P. J., concurring specially), quoting W. Prosser, Law of Torts, 212 (4th ed. 1971).

        Mitchell v. Rainey, 187 Ga. App. 510, 513 (370 SE2d 673) (1988).

        Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996).

        Dual S. Enterprises v. Webb, 138 Ga. App. 810 (1) (227 SE2d 418) (1976).

       See generally Murray v. Dept. of Transp., 240 Ga. App. 285 (523 SE2d 367) (1999).

       (Citation and punctuation omitted.) Massee v. State Farm &c. Ins. Co., 128 Ga. App. 439, 443 (3) (197 SE2d 459) (1973).

       OCGA § 51-12-31.

       See OCGA § 40-6-49 (a).

       See OCGA § 40-13-58; Cannon v. Street, 220 Ga. App. 212, 214 (2) (469 SE2d 343) (1996).

        Boles v. Hemrick, 194 Ga. App. 595, 596-597 (391 SE2d 418) (1990).


text:
    A00A1651.
    DUGGAN v. DUGGAN-SCHLITZ.
    (539 SE2d 840)
   Johnson, Chief Judge.

Stephanie Duggan-Schlitz filed a petition for a temporary protective order under OCGA § 19-13-4, a section of the Family Violence Act, against her husband, Charles Duggan. The trial court granted the petition on May 14, 1999, and stated that the temporary order would not remain in effect for more than six months.

On October 26, 1999, about two and a half weeks before the end of the six-month period, Duggan-Schlitz moved to have the temporary protective order converted into a permanent order. The trial court scheduled a hearing for November 11, 1999. Due to the court’s trial schedule, it could allot only one hour for the hearing. The parties notified the trial court in advance that the hearing would be lengthy and could not be completed in the limited time allotted. Both parties were aware that the hearing would have to be continued. In a telephone conference with counsel, the trial court entertained argument on the issue of whether the temporary protective order could remain in effect beyond the November 14, 1999 expiration date if the hearing had to be continued. No decision was made at that time.

The case was called on November 11,1999, as scheduled, but the trial court heard no evidence on the merits of the petition. Instead, it heard argument on the issue of whether the temporary protective order could remain in effect beyond the expiration date. The next day, the court issued an order extending the effective date of the temporary protective order and continuing the hearing until such time as a full hearing could be held to decide whether the temporary protective order should be converted into a permanent order. This court granted Duggan’s application for interlocutory review of this order.

Duggan maintains that the trial court erred by holding that a temporary protective order entered under the Family Violence Act could remain in effect beyond the six-month period established by OCGA § 19-13-4 (c), without first holding a hearing and entering an order making the protective order permanent. In light of the purpose of the Act and the fact that a hearing was started but had to be continued, there was no error.

A temporary protective order issued under OCGA § 19-13-4 shall not remain in effect for more than six months; provided, however, that upon the motion of a petitioner and notice to the respondent and after a hearing, the court in its discretion may convert a temporary order granted under this Code section to a permanent order.

The Family Violence Act vests the superior court with authority to issue protective orders “to bring about a cessation of acts of family violence.” The Act gives the trial court authority to order temporary relief ex parte as it deems necessary to protect a person from violence, and it gives the court authority to order permanent relief from violence.

A respondent is not without rights. For example, in order to protect the respondent’s rights, the Act does not allow temporary orders to become permanent automatically, and it gives the respondent the right to a hearing before a permanent protective order is issued. And, the statute makes it clear that the consequence of a petitioner’s failure to further prosecute the case within six months results in the temporary order becoming invalid.

In this case, Duggan-Schlitz moved to convert the temporary order into a permanent order weeks before the temporary order expired. Duggan received notice of the motion, conferred with the trial judge by phone, and participated in a hearing regarding the motion. The fact that, due to its full trial schedule, the trial court was unable to allocate sufficient time to complete the hearing does not mean the trial court’s action was unauthorized.

Considering the important legislative purpose of protecting our citizens from domestic violence, and the authority and discretion which the legislature has bestowed upon the courts to effectuate that purpose, we do not believe that the legislature intended that a court would be without authority to temporarily extend the effective date of a protective order so that a hearing which has been started on the matter can be completed. This is particularly true under the facts presented in this case, where the petition was filed weeks before the temporary order was set to expire; the respondent was notified of the motion and hearing and did confer with the trial judge on the matter; the parties told the court they needed more hearing time than the court could give them before the order would expire; and the trial court started hearing arguments regarding the motion before the temporary order expired. We note the general rule that a trial court has discretion in regulating and controlling its business. The trial court acted within its authority in extending the effective date of the order pending completion of the hearing.

Decided September 26, 2000.

J. Hue Henry, Christopher L. Casey, for appellant.

Daniels & Rothman, Gregory A. Daniels, for appellee.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       OCGA § 19-13-4 (c).

       OCGA § 19-13-4 (a).

       OCGA § 19-13-3 (b).

       See OCGA § 19-13-4 (c).

       Id.

        Scott v. State, 216 Ga. App. 692, 694 (3) (455 SE2d 609) (1995).


author: Mikell, Judge.

text:
    A00A1704.
    STANFORD v. CITY OF MANCHESTER et al.
    (539 SE2d 845)
   Mikell, Judge.

Cedric Jerome Stanford sued the City of Manchester and Dixie Cole, a Manchester police officer, for false arrest, false imprisonment, malicious prosecution, violations of 42 USC § 1983, and slander. These claims arise out of Stanford’s assertion that he was wrongfully arrested for rape. The trial court granted summary judgment to the defendants, and Stanford appeals. We affirm.

In reviewing grants of summary judgment, “this court conducts a de novo review of the law and the evidence.” To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the record shows that Officer Cole was directed by her superior officers to investigate the reported rape of a 16-year-old female. Officer Cole obtained statements from the alleged victim, her friends, and family members. The alleged victim told Officer Cole that Cedric Dixon, who was also known as Cedric Stanford, had engaged in forcible, nonconsensual sexual intercourse with her on one occasion in November 1995. The brother of the alleged victim, who was also a friend of Stanford, told Officer Cole that he and Stanford visited his sister at the residence where the rape allegedly occurred, and that his sister was very upset after spending approximately 30 minutes alone with Stanford.

The evidence further shows that Stanford waived his Miranda rights and consented to questioning by Officer Cole and Chief Ron Jackson. Stanford admitted having sexual intercourse with the alleged victim. Stanford told the officers that he often visited the alleged victim’s residence with her brother while the two men were on duty in connection with their employment with the City of Manchester, and that the incident took place on one of the visits. Stanford contended that the intercourse was consensual.

The evidence further shows that a warrant for the arrest of Stanford was issued by the magistrate judge, and it was executed on April 4, 1996. Shortly after his arrest, Stanford began having chest pains. Officer Cole summoned an ambulance, and the paramedics examined Stanford; however, further treatment was not necessary. Stanford was released on bond on April 13, 1996.

At the direction of her superiors, Officer Cole sent a memorandum to the city manager who stated that Stanford had been arrested and charged with rape, and that he had admitted having sexual intercourse with a 16-year-old while on duty. The City terminated Stanford’s employment on the day he was released from jail.

Under subpoena, Officer Cole testified twice against Stanford before the grand jury; however, the grand jury declined to indict him. Stanford then brought this complaint, claiming there was no probable cause to arrest him and alleging violations of 42 USC § 1983. The trial court granted summary judgment to the defendants, and this appeal followed.

1. The trial court did not err in granting summary judgment to the defendants on Stanford’s state law claims for false imprisonment, false arrest, and malicious prosecution.

(a) Claim of false imprisonment against the City. Stanford’s failure to comply with the ante litem notice requirement of OCGA § 36-33-5 is fatal to his false imprisonment claim against the City. Under OCGA § 36-33-5, a claim against a municipality must be presented within six months of the accrual of the cause of action. A claim for false imprisonment accrues upon the plaintiff’s release from detention. Stanford was released from jail on April 13, 1996, but his complaint was not filed until June 12, 1997.

(b) Claim of false imprisonment against Officer Cole. Furthermore, Stanford cannot sustain a claim for false imprisonment against Officer Cole. An unlawful detention is an essential element of this tort which Stanford is unable to satisfy because his detention was the result of an arrest warrant. “Detention effectuated pursuant to procedurally valid process, such as an arrest warrant, is not ‘unlawful.’ ”

(c) Claims of false arrest and malicious prosecution against Officer Cole and the City. Stanford’s claims for false arrest and malicious prosecution fail because there is no evidence of lack of probable cause or malice.

Lack of probable cause exists “when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” While lack of probable cause is normally a question for the jury, “the burden of proof to show lack of probable cause is on the plaintiff!,] and there is nothing to send to the jury if the plaintiff does not raise some evidence creating an issue of fact. . . ,”

Here, the alleged victim identified Stanford to Officer Cole as the man who raped her, and the officer observed that the victim’s conduct and demeanor were consistent with behavior commonly observed in rape victims. Additionally, other witnesses reported to Officer Cole that the victim informed them Stanford had raped her. According to Officer Cole, Stanford exhibited signs of extraordinary nervousness during questioning by law enforcement officers, and he admitted engaging in sexual intercourse with the victim at the time and location of the alleged rape. Therefore, we conclude that probable cause existed to arrest and prosecute Stanford.

Even assuming, arguendo, that probable cause did not exist, there is no evidence demonstrating malice. The Code defines malice as “personal spite or . . .a general disregard for the right consideration of mankind, directed by chance against the individual injured.” There is nothing in the record before us that shows or tends to show that Officer Cole or the district attorney’s office acted with malice in arresting or prosecuting Stanford. The investigation and prosecution were initiated in response to the alleged victim’s report that she had been raped by Stanford and were not directed by personal spite or by chance against him.

Accordingly, the trial court properly entered judgment in favor of Officer Cole and the City on Stanford’s claims of false imprisonment, false arrest, and malicious prosecution.

2. Stanford next contends that the court erred in granting summary judgment to the defendants on the 42 USC § 1983 claims. We disagree.

To recover under 42 USC § 1983, Stanford must make a threshold showing that he suffered “a deprivation of rights, privileges or immunities secured by the Constitution and laws of the United States.” Taken alone, § 1983 creates no substantive rights; however, it provides a remedy for the deprivation of rights established elsewhere. Therefore, “[a]bsent the existence of an underlying constitutional right, no section 1983 claim will lie.”

Stanford has not specified the constitutional rights of which he was deprived; however, he first argues that Officer Cole and the City unlawfully detained him for interrogation prior to his arrest. Contrary to his argument, the undisputed evidence shows that Stanford vohintarily reported to the police station and consented to questioning by Officer Cole and Chief Jackson prior to his arrest.

Next, Stanford argues that Officer Cole denied him medical treatment. Because of the special relationship between a municipality and a person in its custody, “the due process clause of the Fourteenth Amendment mandates that pretrial detainees must be provided with at least minimally adequate levels of. . . medical care.” The standard of medical care required is that the state or municipality not act with deliberate indifference to a detainee’s serious medical needs. The evidence shows that when Stanford became anxious and complained of chest pains following his arrest, Officer Cole contacted Meriwether County Emergency Medical Services, who dispatched medical personnel to the jail to examine him. It follows that Officer Cole was not deliberately indifferent to Stanford’s medical needs. The trial court properly granted summary judgment to the City and Officer Cole on the § 1983 claims.

3. Finally, Stanford argues that the trial court abused its discretion in granting summary judgment on the claim of intentional infliction of emotional distress. This enumeration is without merit.

In his complaint, Stanford sought damages against Officer Cole and the City for the torts of false arrest, false imprisonment, malicious prosecution, and slander, as well as for violations of 42 USC § 1983. Neither the pleadings nor the trial court’s order granting summary judgment addresses claims of intentional infliction of emotional distress. Rather, Stanford has argued intentional infliction of emotional distress for the first time on appeal. “Issues not raised in the court below may not be raised for the first time on appeal.” Accordingly, we are precluded from considering Stanford’s claim.

Decided September 26, 2000.

Shuman & Associates, Thomas R. Morgan, Jr., for appellant.

Ellis, Easterlin, Peagler, Gatewood & Skipper, George M. Peagler, Jr., Paul O. Farr, for appellees.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

        Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

       OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Collier v. Evans, 199 Ga. App. 763, 764 (1) (406 SE2d 90) (1991).

       See OCGA § 51-7-20; see also Franklin v. Consolidated Govt. of Columbus, 236 Ga. App. 468, 470 (1) (512 SE2d 352) (1999).

       (Citation, omitted.) Id.

       OCGA §§ 51-7-1; 51-7-40.

       OCGA §51-7-3.

        Franklin, supra, 236 Ga. App. at 470; see also Pinkston v. City of Albany, 196 Ga. App. 43, 46 (1) (395 SE2d 587) (1990).

       See Franklin, supra, 236 Ga. App. at 470.

        Pinkston, supra, 196 Ga. App. at 46.

       OCGA § 51-7-2.

       See Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 75 (2) (532 SE2d 463) (2000).

       (Citation and punctuation omitted.) Wideman v. Shallowford Community Hosp., 826 F2d 1030, 1032 (11th Cir. 1987); see also Cleveland v. Fulton County, 196 Ga. App. 168, 170 (1) (396 SE2d 2) (1990).

        Wideman, supra, 826 F2d at 1032; see also Baker v. McCollan, 443 U. S. 137, 140 (99 SC 2689, 61 LE2d 433) (1979).

        Wideman, supra, 826 F2d at 1032.

       Id. at 1034.

        Hamm v. DeKalb County, 774: F2d 1567, 1573 (11th Cir. 1985), cert. denied, 475 U. S. 1096 (106 SC 1492, 89 LE2d 894) (1986).

       See id.

        Mapp v. Drake, 178 Ga. App. 830, 831 (344 SE2d 682) (1986); see also Hembree v. Johnson, 224 Ga. App. 680, 681 (2) (482 SE2d 407) (1997).


author: Ruffin, Judge.

text:
    A00A1741.
    JACKSON v. THE STATE.
    (539 SE2d 849)
   Ruffin, Judge.

A Fulton County jury found Samuel Jackson guilty of possession of cocaine with intent to distribute. On appeal, Jackson challenges the sufficiency of the evidence. He also contends that the trial court erred in admitting evidence of two similar transactions. As the evidence was sufficient and the trial court did not err in admitting the similar transaction evidence, we affirm.

1. In reviewing a challenge to the sufficiency of the evidence, we construe the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor determine witness credibility. As long as there is some evidence, even though contradicted, to support each element required to make the State’s case, the jury’s verdict will be affirmed.

So viewed, the evidence shows that, on June 17, 1995, Atlanta police officer J. T. Summers was told that a man wearing black shorts and a black shirt with yellow stripes was selling cocaine. Based on the information he received, Summers went to a house, which had been abandoned, and he saw Jackson standing in the driveway holding a brown bag. Jackson was wearing black shorts and a black shirt with yellow stripes. Another man approached Jackson, who opened the bag and showed the man its contents. After the man walked away, Jackson hid the bag under a pile of roofing shingles in the front yard of the house. Summers retrieved the bag, which held 44 clear plastic bags that contained what appeared to be crack cocaine. James Ellis, with the Georgia Crime Laboratory, testified that the substance tested positive for cocaine. Also, at trial, the State introduced certified copies of Jackson’s two prior convictions for possession with intent to distribute cocaine.

Contrary to Jackson’s contention, this evidence was sufficient to support his conviction for possession of cocaine with intent to distribute. Jackson argues that the evidence was insufficient because Officer Summers did not see any transaction take place. He implies that such evidence is required in order to support a finding of intent to distribute. We disagree. Not only were the drugs packaged individually, as though for sale, but the evidence of the two prior convictions establishes Jackson’s motive and intent. Accordingly, the evidence was sufficient to support the jury’s verdict.

2. Jackson also contends that the trial court erred in admitting evidence of two similar transactions. The first incident, which took place in August 1991, happened one block away from where Jackson was arrested in June 1995. Jackson was walking down the street carrying a brown bag, similar to the one he had in 1995. When he saw a police officer approach, Jackson dropped the bag. The officer retrieved the bag, which contained 50 bags of crack cocaine. Jackson was convicted of possession with intent to distribute.

The second transaction, which occurred in April 1995, took place several blocks away from where Jackson was arrested in June 1995. Police officers witnessed Jackson take money from people while another man handed the people what the officers believed to be narcotics. The man handed Jackson a pill bottle, which Jackson hid under a stove top. After the men were arrested, a police officer retrieved the pill bottle, which contained 24 “hits” of crack cocaine. As a result of this incident, Jackson pled guilty to possession with intent to distribute.

As a general rule, evidence that a defendant has committed another crime, unrelated to the one for which he is on trial, is irrelevant and inadmissible. In order for such evidence to be admissible, several conditions must be satisfied. First, the evidence must show that the defendant was the perpetrator of the independent crime. Second, the independent crime and the offense charged must be similar enough that proof of the former tends to prove the latter. Third, the evidence must be admitted for an appropriate purpose, such as establishing motive, intent, plan, identity, bent of mind, or course of conduct.

Decided September 26, 2000.

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Jackson does not contend that the evidence was admitted for an inappropriate purpose. Rather, he argues that the two prior incidents were not sufficiently similar to the June 1995 arrest to warrant their introduction. We disagree. “The similar transaction need not be identical to the charged offense to be admissible.” Here, both prior transactions occurred in the same geographic location as the offense for which Jackson was on trial and involved the same illegal substance. In one transaction, the substance was packaged in the same manner. In both prior transactions, Jackson attempted to conceal the drugs while engaged in the selling process. Thus, the prior transactions were sufficiently similar to warrant their introduction.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        Taylor v. State, 235 Ga. App. 323, 324 (1) (509 SE2d 388) (1998).

       Id.

       See McNair v. State, 240 Ga. App. 324, 326 (3) (523 SE2d 392) (1999); see also Hagood v. State, 228 Ga. App. 693, 694 (2) (492 SE2d 606) (1997).

        McNair, supra at 325 (2).

       See Lawrence v. State, 238 Ga. App. 102, 103 (1) (517 SE2d 822) (1999).

        Quezada v. State, 236 Ga. App. 718, 719 (1) (512 SE2d 401) (1999).

       Id.

       Id.

        Jones v. State, 243 Ga. App. 374, 376-377 (2) (533 SE2d 437) (2000).

        Maldonado v. State, 240 Ga. App. 497 (3) (523 SE2d 917) (1999).

       See id. at 497-498 (3); see also Molaro v. State, 236 Ga. App. 35, 37-38 (2) (510 SE2d 886) (1999).


author: Blackburn, Presiding Judge.

text:
    A00A1021.
    TICE v. COLE et al.
    (537 SE2d 713)
   Blackburn, Presiding Judge.

Following a jury trial, Randall Tice appeals the judgment in favor of defendants, Jim Cole, D.D.S., and Marietta Dental Associates, P.C., on his dental malpractice action, contending that the trial court erred by: (1) allowing defense counsel to cross-examine his expert witness about complaints filed against him; (2) admitting certain documents into evidence; and (3) charging the jury on foreseeability. In addition, Tice contends the trial court erred in granting partial summary judgment to defendants because certain negligence claims were time-barred. For the reasons set forth below, we affirm.

On appeal, the evidence is construed most strongly to support the verdict and judgment. Yeary v. Bell. So construed, the evidence shows that Tice first visited Dr. Cole, a general dentist at Marietta Dental Associates, for treatment in October 1983. At that time, Tice had severe, advanced periodontal disease in all four quadrants of his mouth, as well as bone loss and deterioration caused by the progression of the disease. As a result of Tice’s poor dental hygiene, his teeth had become so diseased that they were too sensitive to clean thoroughly.

Tice was immediately referred to Dr. McFarland, a periodontist, for periodontal surgery. McFarland treated Tice for two years. Cole, however, saw Tice again in 1985, at which time the periodontal disease was less generalized, but still present. McFarland then performed additional gum surgery, and Cole recommended that Tice be checked every three months. Ignoring Cole’s recommendation, Tice continued to neglect his teeth, sometimes waiting nine months before returning to the dental office. Due to Tice’s infrequent visits, his treatment by both McFarland and Cole continued sporadically over a period of ten years. Tice was reminded that the disease would progress if he failed to care for his teeth at home, and, in fact, the disease did progress as predicted. Between 1983 and 1993, five teeth were extracted due to periodontal disease. These teeth were extracted without complications and without prescribing prophylactic antibiotic treatment.

On July 27, 1993, Tice called Marietta Dental Associates complaining that two of his remaining teeth were loose. In 1987, Tice had required a bridge on these same teeth due to bone loss caused by periodontal disease. Subsequently, because of severe bone loss, Cole extracted the teeth on July 29, 1993. Cole did not prescribe prophylactic antibiotics for Tice prior to the extraction because he was not a high risk patient. The testimony at trial showed that a high risk patient is a patient with diabetes, immune problems or heart valve problems or diffusing infection. Tice required only a local anesthesia for the extraction because his teeth were so loose and diseased that they could be lifted out easily. Following the extraction, Tice did not return to Marietta Dental Associates for further treatment. In August 1993, Tice was diagnosed with a brain abscess.

On July 25, 1995, Tice filed a complaint asserting dental malpractice against Cole and Marietta Dental Associates. Specifically, Tice alleged that Cole was negligent in treating him prior to the July 1993 extraction and in failing to prescribe prophylactic antibiotics at the time of the July 1993 extractions. Tice further alleged that, as a result of this negligence, he suffered a systemic infection which ultimately caused a brain abscess.

Cole and Marietta Dental Associates filed a motion for partial summary judgment, contending that any claims of alleged negligence occurring prior to July 1993 were barred by the statute of limitation, and the trial court granted the motion. The case went to trial, and, after a week of testimony, the jury returned a general verdict in favor of the defendants.

1. Tice contends that the trial court erred by allowing counsel for Cole to cross-examine Dr. Robert Fish, his expert witness, concerning disciplinary matters filed against him. He also raises as error the admission into evidence of documents from the administrative complaints filed against Fish.

At trial, Tice presented the videotape testimony of Fish, a general dentist, who testified that Cole had breached the standard of care in his treatment of Tice. Establishing his credentials on direct examination, Fish testified that he taught courses needed for relicensure on behalf of the Florida Dental Board and that he had been qualified as an expert by the Florida Department of Administrative Hearings.

On cross-examination, Fish was asked about three administrative complaints alleging that he breached a standard of care in his treatment of the complaining patient. In the first instance, Fish admitted at the time that he breached the standard of care and was reprimanded by the dental board. In the second instance, Fish stipulated at the time to a breach of standard of care and agreed to pay a fine to the patient; however, he explained at the subject trial that the stipulation had been later withdrawn. In the third instance, Fish acknowledged that the Florida Dental Board recommended a finding that he failed to exercise the appropriate standard of care in his treatment of a patient. In each instance, Fish acknowledged the administrative complaint and testified about the substance of the documents as he explained the circumstances of each complaint.

(a) Tice filed a motion in limine to exclude the cross-examination of Fish regarding the administrative complaints and the admission of the documents, contending that such were not relevant to the case. As Tice’s objection at trial was based solely on lack of relevancy, it failed to preserve any question for review.

Objections based on the irrelevancy of evidence are insufficient to show reversible error. Further, questions of relevancy are within the domain of the trial court. The trial court did not abuse its discretion in allowing the testimony, and there was no reversible error.

(Citations and punctuation omitted.) Shaw v. Ruiz† Telligman v. Monumental Properties.

(b) Tice farther contends that the trial court erred by admitting the documents into evidence because the documents were not properly authenticated. However, even if counsel for Cole failed to lay an adequate foundation for the documents, any such error was harmless. Substantially the same evidence was already before the jury through Fish’s own testimony, so hearsay as to this matter would be merely cumulative and harmless. Harris v. TatumJ

2. Tice contends the trial court erred by charging the jury:

In a dental malpractice action a defendant or defendants cannot be found negligent on the basis of an assessment of a patient’s condition which only later in hindsight proved to be incorrect so long as the initial assessment was made in accordance with reasonable standards of medical care. In other words the concept of negligence does not include hindsight. Negligence consists of not foreseeing and guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible.

This charge has previously been approved by this Court. Haynes v. Hoffman. Because Tice argues for the first time on appeal that the charge is misleading, confusing and not adjusted to the evidence, he has waived the objection.

To be reviewable on appeal, an objection must clearly direct the attention of the trial court to the claimed error and must be stated with sufficient particularity to leave no doubt as to the specific ground upon which the charge is challenged; the ground of error urged must fully apprise the court of the error and the correction needed. . . . OCGA § 5-5-25 (a) places a duty on counsel to exercise a high degree of clarity in objecting to charges.

Gay v. Hatfield. Since Tice did not state distinctly the grounds for his objection at trial, the alleged error was not preserved for review. Id.

3. Tice raises as error the trial court’s grant of partial summary judgment for claims of alleged negligence prior to July 1993 on the grounds that such claims were time-barred. Yet, Tice’s complaint states that it was being filed within ten days of the applicable statute of limitation. Thus, Tice admitted that claims prior to July 1993 were time-barred. In its order, the trial court also found that any claims prior to July 1993 were time-barred. The trial court did not err in granting the motion for partial summary judgment.

Decided July 21, 2000

Reconsideration denied September 27, 2000

Thomas E. Maddox, Jr., for appellant.

Goodman, McGuffey, Aust & Lindsey, Judy F Aust, Danielle F. Forte, for appellees.

Moreover, we note that the crux of Tice’s complaint was that the improper extraction of his teeth, particularly failing to prescribe prophylactic antibiotics, led to a brain abscess. The grant of partial summary judgment did not preclude him from pursuing this claim. Tice was not barred from presenting evidence pertaining to alleged negligence in the performance of the extraction and the failure to prescribe prophylactic antibiotics. At trial, the jury heard evidence of Tice’s complete dental history and the treatment by Cole from 1983 to 1993, as well as evidence concerning the circumstances of the extraction. After considering this evidence, the jury returned a verdict in favor of Cole.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Yeary v. Bell, 228 Ga. App. 522 (2) (492 SE2d 278) (1997).

        Shaw v. Ruiz, 207 Ga. App. 299, 301 (5) (428 SE2d 98) (1993).

        Telligman v. Monumental Properties, 172 Ga. App. 783, 784 (3) (323 SE2d 888) (1984).

        Harris v. Tatum, 216 Ga. App. 607, 610-611 (2) (455 SE2d 124) (1995).

        Haynes v. Hoffman, 164 Ga. App. 236, 238 (3) (296 SE2d 216) (1982).

        Gay v. Hatfield, 237 Ga. App. 826, 827-828 (2) (516 SE2d 856) (1999).


text:
    A00A1130.
    ROWAN v. REUSS.
    (539 SE2d 241)
   Blackburn, Presiding Judge.

R. Darryl Rowan, as attorney of record for Charles Michael Reuss, appeals the trial court’s order which assessed attorney fees against Reuss and Rowan in the underlying action for paternity and child support. Rowan contends that the trial court erred in awarding attorney fees against him without a hearing and that no admissible evidence of attorney fees was presented. The trial court’s sua sponte decision to award attorney fees against the defendant and his attorney directly was based upon their violation of OCGA § 9-15-14 (b); therefore, we review the order for an abuse of discretion. See C. A. Gaslowitz & Assoc. v. ZML Promenade.

1. The issue of attorney fees was raised during closing arguments of the hearing on the amount of child support. The evidence introduced at the hearing amply supports a conclusion that Reuss and Rowan were less than forthcoming with discoverable information concerning Reuss’ finances and income. The plaintiff’s attorney informed the trial court that he would be seeking attorney fees due to the behavior of Reuss and Rowan. Upon inquiry from the trial court as to whether the plaintiff’s attorney was submitting his attorney bills, the bills were introduced without objection. Although Rowan was given an opportunity to respond to the attorney fee issue, during his response the following colloquy took place:

Mr. Rowan: Your Honor, if he’s ordered to pay this amount, it would probably cripple his business. . . . The Court: How’s your business? Mr. Rowan: Well, my business is all right, Your Honor. I mean, it’s not great but it’s — trying to survive. But these fees, Your Honor, as to his allegation about anything I have done, Your Honor, I have only presented information to this [c]ourt that was given to me by my client. I have — I object to his position that he’s placed to the [c]ourt that I have done anything improper. I would never submit anything improper to the [c]ourt. I diligently try to present to the [c]ourt the most accurate information that I can. The Court: Well, Mr. Rowan, you know, I’m not sure that I can award attorney [ ] fees against you without a proper motion because this is part of a domestic case and so I don’t know that we need to get into that. Mr. Rowan: Okay.

After this statement, the trial court continued to question Rowan regarding his preparation of documents, tax returns and other financial documents in the case. The trial court took the matter under advisement and then issued an order in which it assessed attorney fees against Reuss and Rowan. With regard to the fees assessed against Rowan, the trial court found, in part, the following:

Pursuant to OCGA § 9-15-14 (b), this award of attorney[ ] fees is made upon the [c]ourt’s own motion, sua sponte, because the [c]ourt finds that . . . Mr. Rowan’s conduct in defending the claims in this case were interposed for delay and unnecessarily expanded the proceedings. Specifically, Mr. Rowan, also a Certified Public Accountant, personally prepared for his client a misleading and incorrect “draft” 1997 tax return and a misleading [or] incorrect financial affidavit, intending for the [c]ourt and opposing counsel to rely on the information contained therein. Additionally, Mr. Rowan unreasonably withheld discovery in this case.

Although the evidence in the record amply supports the trial court’s conclusions, the record does not demonstrate that Rowan received adequate notice of the court’s intention to impose attorney fees, and it is unclear as to whether the trial court held a hearing thereon or that Rowan was given the opportunity to confront and challenge testimony as to the value and need for services. See Cohen v. Feldman. The trial court specifically told Rowan, “I don’t know that we need to get into that.” Therefore, we cannot say that Rowan received an adequate hearing on the subject of attorney fees against him or that Rowan waived his right to such a hearing. See C. A. Gaslowitz, supra; Munoz v. American Lawyer Media. The award of attorney fees against Rowan is vacated. On remand, the trial court is authorized to conduct a hearing as to whether attorney fees are warranted in the instant case and the appropriate amount of fees to assess, if any. Rowan shall have the right to appeal such ruling as provided by law.

Decided September 14, 2000

Reconsideration denied September 27, 2000.

Hall, Booth, Smith & Slover, Karl M. Braun, Jason P. King, for appellant.

Bogart & Bogart, Jeffrey B. Bogart, George R. Ference, for appellee.

2. Rowan contends that the trial court erred in considering the billing records as evidence of attorney fees. However, billing records are generally admissible evidence upon testimony providing the proper foundation pursuant to OCGA § 24-3-1. C. A. Gaslowitz, supra. At the hearing upon remand, upon testimony providing the proper foundation, the billing records are admissible.

Judgment vacated and remanded.

Eldridge and Barnes, JJ, concur.

       Reuss does not appeal the attorney fees assessed against him.

        C. A. Gaslowitz & Assoc. v. ZML Promenade, 230 Ga. App. 405, 406 (496 SE2d 470) (1998).

        Cohen v. Feldman, 219 Ga. App. 90 (464 SE2d 237) (1995).

        Munoz v. American Lawyer Media, 236 Ga. App. 462, 466 (3) (a) (512 SE2d 347) (1999).