author: Miller, Judge.

text:
    A99A2244.
    COX v. THE STATE.
    (532 SE2d 697)
   Miller, Judge.

When Leslie Bryan Cox went to his wife’s mobile home to persuade her to return to him, she asked him to leave because he had been drinking. He splashed some beer on her clothing, and after she closed the door, he broke the light affixed to her trailer near the door, broke open her outdoor phone jack and unplugged it, and destroyed a small concrete statue she kept in her front yard. At a bench trial he was convicted of family violence battery and criminal trespass. He enumerates as error the sufficiency of the evidence and the State’s failure to establish that he knowingly waived his right to a jury trial. We find merit in these contentions and reverse.

1. Construing the evidence in favor of the convictions, could a rational trier of fact have found, beyond a reasonable doubt, each of the elements of the charged crimes? We hold that the evidence relative to the battery conviction does not meet this standard, whereas the evidence relative to the trespass conviction' does.

Under OCGA § 16-5-23.1 (a) and (f), a person commits the offense of family violence battery when he intentionally causes substantial physical harm or visible bodily harm to a spouse. Here the State contended that Cox threw beer in his wife’s face, causing her physical pain. Both the victim and Cox testified otherwise, stating only that some beer was splashed on her clothes. Because there was no evidence of any pain or harm, the battery conviction fails.

With regard to trespass, OCGA § 16-7-21 (a) criminalizes the intentional destruction of another person’s property (without that person’s consent), which results in damage to the property of $500 or less. Cox correctly points out that absent evidence as to whether the amount of damage done was more or less than $500, a criminal trespass conviction generally cannot stand. But an exception exists where the evidence shows that the damage was to everyday objects, for then the trier of fact can form its own estimates of value and damage. The light affixed to the trailer was an everyday object, which authorized the judge to estimate the damage done to it. Thus, the evidence sufficed to sustain the criminal trespass conviction.

Decided March 27, 2000

Reconsideration denied April 14, 2000.

2. Nevertheless, as conceded by the State, we must reverse the trespass conviction on the ground that no evidence showed that Cox intelligently and voluntarily waived his right to a jury trial. The record is undisputed that on the day of arraignment Cox, appearing pro se, was asked how he pled, to which he replied, “Not guilty.” The prosecutor then placed a form sheet in front of Cox, telling him it constituted his “not guilty” plea and instructing him to sign it, which Cox did. In fact, the form sheet also purported to waive Cox’s right to trial by jury, and a bench trial immediately ensued once he signed. Because this was the only evidence of Cox voluntarily waiving his right to a jury trial, and because the State concedes that there was no knowing and intelligent waiver, reversal is mandated.

In summary, we reverse the battery conviction on the general grounds. The trespass conviction is reversed for failure to inform Cox of his right to a jury trial, and the case is remanded for further proceedings.

3. Remaining enumerations of error are not likely to recur on retrial.

Judgments reversed and remanded with direction.

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

John M. Hatfield, for appellant.

Michael D. Devane, Solicitor, for appellee.

       OCGA § 16-5-23.1 (f).

       OCGA § 16-7-21 (a).

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

       An officer’s hearsay testimony that she told him that Cox threw beer in her face was not admitted as part of the res gestae and consequently had no probative value. See Jones v. State, 271 Ga. 516, 517 (2) (520 SE2d 454) (1999); compare Brinson v. State, 208 Ga. App. 556 (1) (430 SE2d 875) (1993).

        Matthews v. State, 224 Ga. App. 407, 409 (2) (481 SE2d 235) (1997); see Johnson v. State, 156 Ga. App. 411, 413 (2) (274 SE2d 778) (1980).

        Mallory v. State, 164 Ga. App. 569, 570 (2) (298 SE2d 290) (1982); see Matthews, supra, 224 Ga. App. at 409 (2).

       Cf. Jones v. State, 236 Ga. App. 716, 717 (1) (513 SE2d 254) (1999) (jury could estimate the value of a door to a residence).

       See Pirkle v. State, 221 Ga. App. 657 (472 SE2d 478) (1996); Payne v. State, 217 Ga. App. 386, 387 (460 SE2d 297) (1995).

       See Dinning v. State, 267 Ga. 879, 880 (485 SE2d 464) (1997).

        Kirkland v. State, 202 Ga. App. 356, 358 (1) (414 SE2d 502) (1991).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A2282, A99A2283.
    PERIMETER REALTY et al. v. GAPI, INC. et al.; and vice versa.
    (533 SE2d 136)
   Phipps, Judge.

Perimeter Realty, JSH Properties, Inc., and Holliday, Fenoglio & Tyler (collectively “the brokers”) claim a commission on transfers of real estate by Eugene Anderson, president of GAPI, Inc., then known as Anderson Properties, Inc., and GAPI, Inc. (collectively “Anderson Defendants”) of Atlanta, to Highwoods/Forsyth Limited Partnership of North Carolina. The brokers’ agents were initially unaware of one another’s discussions with Anderson regarding financing or selling Anderson Defendants’ real estate. As negotiations proceeded, Anderson Defendants brought the brokers together, and the brokers agreed to share a commission. Anderson Defendants later relieved the brokers from direct participation in the real estate transfer but continued to negotiate their commission. After the transactions were completed, the brokers were paid nothing, and they sued Anderson Defendants and Highwoods under numerous theories of recovery. All parties filed motions for summary judgment.

The trial court denied summary judgment to the brokers as to issues of liability for a commission and for attorney fees, and we affirm. We affirm the trial court’s denial of summary judgment to Anderson Defendants on the brokers’ claim of quantum meruit. The trial court found that there were fact questions as to issues of fraud and conspiracy and denied summary judgment to Anderson Defendants on those claims. We disagree and reverse. We affirm the trial court’s grant of summary judgment to Anderson Defendants on claims of Racketeer Influenced & Corrupt Organizations Act violations and breach of contract. The court further granted summary judgment to Highwoods as to all claims against it, and we affirm.

Case No. A99A2282 is the brokers’ appeal. Case No. A99A2283 is Anderson Defendants’ cross-appeal.

JSH Properties, Inc.

On September 7, 1996, Thomas Ross, a real estate agent with JSH Properties, Inc., met Anderson at the home of one of JSH’s brokers, William Marett. Ross told Anderson that, through Ross’s uncle who worked for Highwoods, he knew that Highwoods was interested in expanding into Atlanta. Ross asked Anderson whether he would be interested in selling his company. Ross deposed that Anderson responded yes and agreed that if Ross introduced Anderson to Highwoods and Highwoods acquired Anderson Defendants’ real estate, Ross would be entitled to a commission.

Three days later, Ross and Marett met Anderson at Anderson’s office. During that meeting they discussed issues relating to the exchange of Highwoods’s partnership units for Anderson Defendants’ real estate, whether Anderson could effectuate a property sale without his partners’ approval, and a commission fee arrangement. In his deposition, Ross stated that they concluded that he would represent Anderson Defendants as their real estate agent and that they:

actually agreed on a commission structure at that meeting, which was one percent of all income-producing properties that were transferred, based on the total value of the income-producing properties; one percent of any value that they put on his business as an entity; and two percent of any raw land that was transferred.

According to Ross, Anderson gave him an information package of Anderson Defendants’ real estate, and “Anderson authorized me to represent him to sell every piece of property that was in the package that he gave to me, which was a complete package of every property that he owned and properties that he managed.” Ross further deposed:

Anderson represented himself to be in a position to bind the partners, and he said that he would pay a commission. We went over the fee structure. When I say he, I mean he was there as a partner and he was, you know, discussing a commission agreement, and I drafted the agreement to — to cover him personally and to cover all of any entity related to Gene Anderson or Anderson Properties, Inc. or GAPI, you know. To cover almost every entity that could possibly be related to Gene Anderson that he could bind.

Ross deposed that he reduced the oral agreement to writing, then delivered copies of it to Anderson some time before September 23. Anderson never signed the document.

Ross forwarded Anderson Defendants’ information package to Paul Kreckman, one of his contacts at Highwoods. He then set up a meeting for September 25 for Highwoods to meet Anderson.

Holliday, Fenoglio & Tyler

In July 1996, William Tyler, a real estate broker with Holliday, Fenoglio & Tyler, met with Anderson to discuss procuring equity or debt financing for three development projects. Tyler entered into a written 90-day exclusive agreement, dated July 31, 1996, with Anderson Defendants that provided that he would make presentations to a defined list of potential candidates. Anderson requested that Tyler place Highwoods on that list. The agreement provided, “If the [financing] commitment is obtained by [Holliday, Fenoglio & Tyler] and accepted by [Anderson Defendants], then [Anderson Defendants] agree to pay a commitment fee to us in the amount equal to one and one-half percent [of] the total of project cost minus your equity contribution.”

Although Tyler prepared materials regarding the three development projects for potential lenders or investors, he did not prepare anything for Highwoods specific to the three projects. He did, however, prepare “certain information on the Atlanta industrial markets for Highwoods,” and between September 5 and September 15, Tyler contacted a Highwoods partner, who was located in Tennessee, to ascertain whether Highwoods had any interest in financing a project in the Atlanta area, without disclosing Anderson Defendants’ name. The Tennessee partner referred Tyler to John Turner, naming Turner as the person who would be in charge of any activities in Atlanta.

On September 23, Anderson invited Tyler to a meeting to discuss “what [they had] been working on.” At that meeting, Tyler learned that two other brokers were also working on matters between Anderson and Highwoods and that a meeting between Anderson and Highwoods had been scheduled for September 25. Tyler deposed that during the September 23 meeting, his agreement with Anderson was extended. After the September 23 meeting, Tyler spoke with Turner regarding opportunities for engaging in a joint venture with, or providing equity financing to, Anderson Defendants. But it is undisputed that none of the three projects named in the exclusive agreement was developed.

Perimeter Realty

On August 20, 1996, Thomas Adler, director of Highwoods Properties, Inc. (the general partner of Highwoods/Forsyth Limited Partnership), contacted Sam Scaffide, principal broker of Perimeter Realty, regarding Highwoods becoming a “major player” in the Atlanta market. Two days later, Scaffide telephoned Anderson, and without disclosing Highwoods’ identity, told Anderson that a real estate investment trust (“REIT”) was interested in purchasing properties in the Atlanta area. Scaffide told Anderson that the REIT would not pay any brokers’ commission, and Anderson stated that as the seller, Anderson Defendants would pay the commission. Scaffide deposed that they agreed to work in “good faith together” but that no property prices were discussed and no amount of commission was determined.

By August 29, Anderson had forwarded to Scaffide an information package concerning Anderson Defendants, and Scaffide forwarded the package to Adler of Highwoods. Adler agreed to forward the material to either Turner or Ron Gibson, both Highwoods executives, and to set up a meeting with Anderson. But around September 16, Adler telephoned Scaffide and told him that Turner and Gibson had contacted Anderson and scheduled an introductory meeting for September 25. At that point, Scaffide revealed to Anderson that Highwoods was the REIT that had expressed an interest in purchasing Atlanta property. Several days later, Anderson invited Scaffide to attend a September 23 meeting, where Scaffide learned that two other brokers were also working on matters between Anderson Defendants and Highwoods.

Recognizing that several brokers might claim a commission in connection with Highwoods’s acquisition of Anderson Defendants’ real estate and intending to pay only one fee to one broker, Anderson invited Ross, Tyler, and Scaffide to a meeting on September 23,1996, in anticipation of the September 25 meeting with Highwoods. At that meeting, Anderson introduced the agents to each other, informing them that they each had been working on the same transaction from different angles. Anderson suggested that they confer with each other about their respective roles to avoid a dispute among the brokers that could jeopardize a transaction between Highwoods and Anderson Defendants. The brokers agreed to share a commission equally, and Ross reported to Anderson that their decision was:

based upon the commission agreement that he had agreed to with Bill Marett and [Ross], and we stated at that time that it was one percent of the total value of income-producing properties, one percent of any value put on his company as an entity, and two percent of any land that was transferred in the transaction.

According to Ross, Anderson responded, “this is great. I’m glad we’ve been able to work this out, and I’m glad that we can move this transaction forward.”

At the end of the meeting, the attendees agreed that Ross would draft a written commission agreement for approval by the parties. Ross revised the draft agreement between Anderson Defendants and JSH, adding the other brokers, adding confidentiality language at Anderson’s request, but changing “nothing to the substance of the [initial] agreement.” Ross delivered the revised agreement to Anderson a few days later. Anderson never signed the document.

On September 25, 1996, Highwoods officers Kreckman and Turner met Anderson, Ross, Tyler, and Scaffide. Ross deposed that during the meeting, Anderson complimented the brokers for agreeing to work together and for not creating a problem for the transaction. Ross deposed that at the meeting:

One of the things that Mr. Turner said was he thought that we could expedite the process if [Turner] and [Anderson] could communicate directly without having to go through us as brokers. That that would expedite the entire deal process, and none of us voiced any opposition to that at that time.

Ross deposed that Anderson called the brokers to a meeting on October 17, 1996, and told them that it would not be necessary for them to get involved in the details of the transaction, instructing the brokers not to get in the way. Anderson requested that they reduce the commission because of additional fees and penalties associated with the acquisition. The brokers agreed to consider reducing the commission.

During the next several months, Anderson continued to propose a lesser fee, and Scaffide notified Anderson that the brokers had agreed to accept a commission in the amount of $850,000. Two days later, Anderson wrote to Scaffide, “because of the limited requirement of time and effort that I understood would be involved in this transaction, I put a value of one percent (1%) on the equity actually coming to [Anderson Defendants].” Ross deposed that the letter was the first time that Anderson ever mentioned a fee based on a percentage of equity, but Anderson deposed that “[he] in no way wanted to pay them or ever indicated that [he] would pay them on a gross number.” The brokers rejected Anderson’s proposal.

Meanwhile, Anderson Defendants and Highwoods proceeded with the negotiations without involving the brokers. Although the agents continued to offer their assistance, Anderson requested nothing further from them.

In February 1997, the first transaction closed, and several months later, a second transaction closed. Ross estimated a commission due of nearly $1.2 million based on the alleged September 10 oral agreement between Anderson and JSH, which the brokers claim to have adopted at the September 23 meeting with Anderson. Anderson paid the brokers nothing.

The brokers sued Anderson Defendants under theories of procuring cause and breach of contract. They sued Anderson Defendants and Highwoods under theories of quantum meruit, conspiracy to deprive them of a commission, fraud, and racketeering activities in violation of OCGA § 16-14-1 et seq. Plaintiffs also sought against Anderson Defendants and Highwoods punitive damages, attorney fees, triple damages under OCGA § 16-14-6, and litigation expenses.

After a period of discovery, the brokers filed a motion for partial summary judgment only as to (1) liability for commission under the alleged commission agreement, and (2) litigation costs and attorney fees. Anderson Defendants and Highwoods each filed motions for summary judgment. Within one week of the hearing on the motions, the brokers amended their complaint, adding claims of promissory estoppel, unjust enrichment, and quantum valebant against Anderson Defendants. The trial court did not reach these issues when ruling on the motions for summary judgment. The amended complaint further added claims based on theories of interference with business relationships and successor in interest against Highwoods.

Summary judgment is appropriate when the moving party demonstrates 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.

Case No. A99A2282

1. The brokers contend that the trial court erred in denying their motion for summary judgment as to the issue of liability, maintaining that Anderson Defendants breached its contract for commission and that because of Anderson Defendants’ stubborn litigiousness they should have been awarded attorney fees under OCGA § 13-6-11.

(a) Although a written, signed listing agreement for a commission did not exist between the brokers and Anderson Defendants, an oral contract for a commission is enforceable. However, an enforceable contract does not exist unless the parties agree on all material terms. The trial court concluded that a meeting of the minds did not occur between the parties on all terms. Consequently, the court denied the brokers summary judgment on the issue of liability.

The parts of the record cited by the parties do not demonstrate that there was an enforceable oral agreement between the brokers and Anderson Defendants. At a minimum, the agreement lacked essential terms concerning the parties to the contract. The brokers themselves could not agree on the question of whether both Anderson and Anderson Properties were parties to the agreement. Therefore, the trial court correctly denied the brokers summary judgment on their breach of a commission contract claim, rendering moot the issue of procuring cause under this claim.

(b) The brokers also argue that the trial court should have granted attorney fees under OCGA § 13-6-11, claiming that there was no basis to dispute liability and that Anderson Defendants were stubbornly litigious. Recovery of attorney fees for stubborn litigiousness is not authorized where there is a bona fide controversy. Because the record shows that bona fide controversies exist, the trial court did not err in denying the brokers summary judgment on their claim of attorney fees.

2. The brokers contend that the trial court erred by striking from consideration nine affidavits they had filed in opposition to Anderson Defendants’ motion for summary judgment. OCGA § 9-11-56 (c) requires the trial court to consider opposing affidavits filed at any time prior to the day of the hearing, and it is undisputed that the affidavits were filed before the day of the hearing. Therefore, the trial court abused its discretion in striking the affidavits as untimely. But in view of our holding in Division 4, this error establishes no ground for reversal.

3. The brokers contend that the trial court erred in denying their motion to reconsider striking the affidavits. Our rulings in Divisions 2 and 4 render this enumeration moot.

4. The brokers contend that the trial court erred in granting summary judgment to Anderson Defendants on the RICO claim.

To establish liability for a RICO violation, one must establish a pattern of racketeering activity. A pattern is defined as two or more similar incidents of criminal conduct. The brokers assert that the stricken affidavits contained evidence of the predicate acts of theft by deception, theft of services, and mail or wire fraud. With the nine affidavits stricken from its consideration, the trial court ruled that there was no evidence of a pattern of prohibited conduct. In Division 2, we ruled that the affidavits were incorrectly stricken as untimely.

Nevertheless, four of the brokers’ own affidavits did not set forth specific facts that showed other predicate acts. Another affidavit filed by the brokers referenced and relied upon a complaint that did not allege theft by deception, theft of services, or mail or wire fraud. Two other affidavits were photocopies of affidavits filed in another action in the same court. Assuming that the trial court had taken judicial notice of them, those two affidavits did not set forth specific facts that demonstrated theft by deception, theft of services, or mail or wire fraud. The brokers failed to provide citations to the record for the remaining two affidavits, as required by Court of Appeals Rule 27 (c) (3) (i). “It is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” Accordingly, the brokers have not shown that the affidavits show a pattern of racketeering activity.

Finally, the brokers argue that two predicate acts are shown in this case because there were two closings related to the Highwoods acquisition. We disagree and conclude that the two closings were part of one transaction. A single transaction does not constitute a pattern of racketeering activity.

Thus we affirm summary judgment to Anderson Defendants on the RICO claim.

5. The trial court granted summary judgment to Highwoods “as to all counts.” On appeal, the brokers contest only their summarily dismissed claims of conspiracy to deprive them of a commission, tortious interference with business relations, and successor liability.

(a) “A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means.” The cause of action for civil conspiracy lies not in the conspiracy itself, but in the underlying tort committed against the plaintiff and the resulting damage. Although there are triable issues on the question of whether a commission was earned, the brokers have presented no evidence supporting their allegation of a conspiracy between Anderson Defendants and Highwoods. All the brokers have shown is that Highwoods negotiated directly with Anderson after the brokers were informed that their presence was not necessary. This does not establish a conspiracy. The trial court did not err in its ruling on the conspiracy issue.

(b) To establish a cause of action for tortious interference with business relations, one must demonstrate that the defendant (i) acted improperly and without privilege, (ii) purposely and with malice with the intent to injure, (iii) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (iv) for which the plaintiff suffered some financial injury. The trial court properly granted Highwoods’s motion for summary judgment on this issue because there is no evidence of improper acts, intended to induce Anderson Defendants to discontinue its business relationship with the brokers.

(c) The brokers contend that the trial court erred in granting Highwoods summary judgment on their claim of successor liability. It is undisputed that Highwoods paid for the real estate with partnership units of its own company. The record also contains evidence that Highwoods assumed certain of Anderson Properties’ liabilities and obligations. As part of the acquisition, Highwoods purchased the name “Anderson Properties,” acquiring between 60 and 90 percent of the total holdings of that company. Concurrent with the acquisition, Anderson renamed Anderson Properties to GAPI, Inc., which now owns the three properties that were not acquired by Highwoods.

Anderson deposed that in his current position as senior vice president and a director of Highwoods, he is in charge of the Atlanta operations. He stated that his duties at Highwoods are substantially the same as were his duties as president for Anderson Properties. He stated that “90 plus” percent of the Anderson Properties staff now works at Highwoods and that their duties have also remained substantially the same.

Generally a purchasing corporation does not assume the liabilities of the seller unless: (i) there is an express agreement to assume the liabilities; (ii) the transaction is a fraudulent attempt to avoid liability; (iii) the purchaser is a mere continuation of the predecessor corporation; or (iv) the transaction is, in fact, a merger, as between the purchasing corporation and the selling company. The rules on successor liability have been applied to intercorporate sales transactions. In Pet Care Professional Center v. BellSouth Advertising &c. Corp., this court held that this law applies where a corporation acquired a partnership. The trial court and the parties have applied this law in this case, and it is the law that we will apply here.

The brokers point to no evidence of an express agreement wherein Highwoods agreed to assume the obligation to pay a commission, and the acquisition, which allegedly triggered a commission, could not have been a fraudulent attempt to avoid paying it. The common law continuation theory has been applied in Georgia where “there is a substantial identity of ownership and a complete identity of the objects, assets, shareholders, and directors” as between the purchasing corporation and the selling company. Here there is not a complete identity of assets.

A de facto merger occurs when one company is absorbed into another. To find a de facto merger, four elements must be present:

(1) There is continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations. (2) There is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation. (3) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practicálly possible. (4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation.

The record does not demonstrate that Anderson Properties has liquidated and dissolved. The company has been renamed “GAPI, Inc.,” and continues to operate and own properties. The brokers have not demonstrated that a de facto merger occurred between Anderson Properties and Highwoods.

The trial court did not err in concluding that the doctrine of successor liability does not apply to the facts of this case.

6. The brokers complain that the trial court erred in denying their motion to extend discovery. The record shows that the trial court granted the first motion to extend discovery, extending discovery to May 28, 1998. The trial court granted a second extension, requested by all the parties, extending discovery through July 31, 1998. The trial court granted a third extension through August 31, 1998. In a motion filed November 12, 1998, the brokers moved the court to extend the discovery period for 60 additional days. In its summary judgment order, the trial court denied the brokers’ motion to extend, noting that it had “already granted [extensions] of the discovery period and a substantial amount of discovery ha[d] been provided by the respective parties.” A trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown. We conclude that the brokers have not shown a clear abuse of discretion.

7. The order which extended discovery through August 31, 1998, related to the taking of certain depositions and discovery of facts or issues raised by those depositions, if the need for such discovery could not- have been reasonably foreseen prior to the depositions. In their brief, the brokers assert that on August 31, they served Anderson Defendants with “ ‘follow-up’ discovery, as to issues raised in the depositions.” Anderson Defendants did not respond to the requests. The record shows that on November 12, the brokers moved to compel Anderson Defendants to answer the discovery requests. In its order on summary judgment, the trial court denied the motion, and the brokers contend that the trial court erred in doing so. “The trial court’s discretion in dealing with discovery matters is very broad, and this court. . . will not interfere with the exercise of that discretion absent a clear abuse.”

Uniform Superior Court Rule 5 provides, for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be “commenced promptly, pursued diligently and completed without unnecessary delay.” That rule also states that the court has discretion to shorten the time for a party to utilize the court’s compulsory process to compel discovery. The brokers have not shown that the need for such discovery could not have been reasonably foreseen before the depositions, and they do not otherwise explain the delay. Moreover, the brokers’ unexplained delay in filing their motion to compel shows a lack of promptness and diligence. We cannot say that the trial court clearly abused its discretion in denying their motion to compel.

8. The brokers filed their complaint on July 18, 1997, and on November 2, 1998, they moved the trial court to transfer the case, asserting that another judge of the superior court was also hearing two cases against Anderson Defendants that “involve [d] many of the same factual issues, i.e., breach of contract, fraud and breach of fiduciary duty.” “When practical, all actions involving substantially the same parties, or substantially the same subject matter, or substantially the same factual issues, whether pending simultaneously or not, shall be assigned to the same judge.” Here, only Anderson Defendants are parties in all the cases, and the record does not demonstrate that the factual issues are substantially the same. In addition, it is not practical to transfer a case which has progressed through discovery to the point where a hearing on cross-motions for summary judgment is being conducted. A trial judge has broad discretion in matters concerning the regulation and control of the business of the court, and we find no abuse of that discretion in the trial court’s denial of the brokers’ motion to transfer.

Case No. A99A2283

9. Anderson Defendants contend that the trial court erred in denying them summary judgment on the brokers’ claim of conspiracy to deprive them of a commission. We held in Division 5 (a) that summary judgment for Highwoods on this issue was correct because the brokers presented no evidence of a conspiracy between Anderson Defendants and Highwoods. Under these circumstances, it follows that summary judgment for Anderson Defendants on this claim is also appropriate. The trial court erred in denying it.

10. Anderson Defendants contend that the trial court erred in denying them summary judgment on the claim of fraud. The tort of fraud has five elements: (1) a false representation by a defendant, (2) scienter (knowing that the representation was false at the time made), (3) intention to induce the plaintiff to act or refrain from acting, (4) justifiable reliance by plaintiff, and (5) damage to plaintiff. The record demonstrates that Anderson told the brokers that they would be paid a commission if they procured a buyer, that the brokers contacted Highwoods in contemplation of a sale of Anderson Defendants’ real estate to Highwoods, that Highwoods purchased certain real estate owned by Anderson Defendants, and that the brokers were paid no compensation in connection with the acquisition.

Normally, fraud cannot be predicated on statements which are in the nature of promises as to future events. The well recognized exceptions to this rule are promises made without present intent to perform, which is a misrepresentation of a present state of mind, and promises made as an inducement to enter a contract. Both of these exceptions to the general rule require the promise (or concealment) be made in a manner as to deceive and mislead.

Scienter is seldom susceptible of direct proof, and recourse to circumstantial evidence usually is required. But there must be some evidence from which a jury could find that a misrepresentation was known to be false at the time made or that it was recklessly made with the intent of deceiving the opposite party. The brokers have failed to point to evidence from which a jury could find fraud. Therefore, the trial court erred in denying summary judgment to Anderson Defendants on this claim.

11. Anderson Defendants contend that the trial court erred in denying their motion for summary judgment against the brokers on claims of quantum meruit and procuring cause because the brokers played no part, or only a negligible part, in initiating or facilitating the Highwoods acquisition.

To recover under a quantum meruit theory, the brokers had to show:

(1) [their] performance as agent of services valuable to the defendants; (2) either at the request of the defendants or knowingly accepted by the defendants; (3) the defendants’ receipt of which without compensating [them] would be unjust; (4) [their] expectation of compensation at the time of the rendition of the services; (5) and that [they were] the procuring cause of the completed transaction. [Cits.]

Although a broker does not establish he was the procuring cause by merely showing he first located the ultimate buyer, a broker can make out a case if he can show interference by the owner and no abandonment of his efforts to effectuate the sale.

When the agent contends that he was the procuring cause, ... he does make out a prima facie case when he shows that negotiations for the sale were set on foot through his efforts, that he performed every service required by his employment which it was possible to perform, and that the failure on his part to personally consummate the trade was due to the interference of the defendant.

Consequently, the broker may be the procuring cause of the sale even though the buyer and seller decide to negotiate the sale without the presence of the broker after the broker brings the principals together. The record supports the brokers’ claim that they introduced Anderson to Highwoods and that as a result of this introduction, Anderson Defendants sold real estate to Highwoods. Their efforts in this case also included presenting the information package to Highwoods and setting up the introductory meeting. Although the brokers continued to attempt to monitor the real estate negotiations and to offer assistance, Anderson told them that there was nothing for them to do. Therefore, the trial court correctly denied summary judgment to Anderson Defendants on these issues, and a jury should decide whether the brokers are entitled to a recovery in quantum meruit.

12. Anderson Defendants contend that the trial court erred in not granting their motion for summary judgment on the brokers’ claims for attorney fees and punitive damages. But “[qjuestions of bad faith, stubborn litigiousness, and unnecessary expense, under OCGA § 13-6-11, are generally questions for the factfinder.” The trial court did not err as to attorney fees.

Regarding punitive damages, the trial court did not rule on that issue. This court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it.

Judgment affirmed in Case No. A99A2282. Judgment affirmed in part and reversed in part in Case No. A99A2283.

Johnson, C. J., and McMurray, P. J., concur.

On Motion for Reconsideration.

Perimeter Realty, JSH Properties, Inc., and Holliday, Fenoglio & Tyler, hereinafter referred to as “appellants,” have filed a motion for reconsideration. In support of various arguments asserted in the motion, appellants contemporaneously filed a motion to supplement the record with the affidavit of Knute Guenther.

Appellants filed their brief in August 1999, noting that several documents, apparently including the affidavit of Guenther, were missing and would be included by supplemental record. The record was not supplemented, and on March 30, 2000, we decided the case without considering the affidavit. On April 10, 2000, appellants filed their motion to supplement the record with the affidavit of Guenther, informing this Court for the first time that although it was missing from the appellate record, the affidavit “appears in the trial court records at R-4051 through R-4055.”

Decided March 30, 2000

Reconsideration denied April 14, 2000

Stanley E. Kreimer, Jr., for appellants.

Bondurant, Mixson & Elmore, M. Jerome Elmore, Lynn M. Adam, David G. Brackett, Holt, Ney, Zatcoff& Wasserman, Joseph S. Jacobson, Jay F. Castle, for appellees.

As this court stated in Williams v. Food Lion, 213 Ga. App. 865, 868 (446 SE2d 221) (1994):

It is the primary responsibility of the appropriate parties and not this court to ensure that all documents relevant to the disposition of an appeal be duly filed with the clerk of this court prior to the issuance of our appellate decision. This appellant did not do. Appellant cannot now perfect a deficiency in his appeal by the belated filing of records, which were missing through no fault of this court at the time of our appellate disposition of this case. As a general appellate rule adopted as necessary to protect or effectuate our appellate judgments (Art. VI, Sec. I, Par. IV, Ga. Const, of 1983), we hold that it is the state of an appellate record and transcript duly before us at the time of our original disposition of the appeal, and not the state of the record as amended in an attempt to support an appellate position argued on motion for reconsideration, that is controlling as to the adequacy of the record for purposes of appellate review.

Motion to supplement record and motion for reconsideration denied.

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

        Steinemann v. Vaughn & Co., 169 Ga. App. 573, 576 (1) (313 SE2d 701) (1984).

        Bagwell-Hughes, Inc. v. McConnell, 224 Ga. 659, 662 (164 SE2d 229) (1968).

       See Peachtree Med. Bldg. v. Keel, 107 Ga. App. 438, 441 (130 SE2d 530) (1963).

        Galloway v. McKinley, 73 Ga. App. 381, 383-384 (2) (36 SE2d 485) (1945).

        Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (1) (501 SE2d 30) (1998).

       See Division 11.

       See Grant v. Crider, 209 Ga. App. 623 (1) (434 SE2d 161) (1993).

       See OCGA § 16-14-4.

       OCGA § 16-14-3 (8).

       See OCGA § 16-8-3.

       See OCGA § 16-8-5.

       See Mullen v. Nezhat, 223 Ga. App. 278, 281-282 (3) (477 SE2d 417) (1996).

        Petkas v. Grizzard, 252 Ga. 104, 108-109 (312 SE2d 107) (1984) (a trial court may take judicial notice of records on file in the same court, but the court is not required to do so).

       (Citation omitted.) Bergmann v. McCullough, 218 Ga. App. 353, 355-356 (3) (461 SE2d 544) (1995).

       See OCGA § 16-14-3 (8); Raines v. State, 219 Ga. App. 893-894 (1) (467 SE2d 217) (1996); compare Dover v. State, 192 Ga. App. 429, 431-432 (1) (385 SE2d 417) (1989).

        Stephens v. State Farm &c. Ins. Co., 236 Ga. App. 758, 759 (1) (513 SE2d 508) (1999).

       (Citations and punctuation omitted.) U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 297 (1) (443 SE2d 833) (1994).

        Cook v. Robinson, 216 Ga. 328-329 (1) (116 SE2d 742) (1960).

       See Division 11. To establish that a conspiracy existed to deprive the brokers of a commission, the brokers must first show that the commission was earned. Hodges-Ward Assoc. v. Ecclestone, 156 Ga. App. 59, 61 (1) (273 SE2d 872) (1980).

        Life Care Ambulance v. Hosp. Auth. of Gwinnett County, 202 Ga. App. 864, 868 (415 SE2d 502) (1992).

        Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985).

       219 Ga. App. 117, 118-119 (464 SE2d 249) (1995).

       (Citation omitted.) Davis a Concord Commercial Corp., 209 Ga. App. 595, 597 (1) (434 SE2d 571) (1993).

       See Howard v. APAC-Ga., 192 Ga. App. 49, 50 (383 SE2d 617) (1989).

       (Citations omitted.) Id. at 50-51.

        Woelper v. Piedmont Cotton Mills, 266 Ga. 472, 473 (1) (467 SE2d 517) (1996).

       (Citations and punctuation omitted.) Ostroff v. Coyner, 187 Ga. App. 109, 117-118 (6) (369 SE2d 298) (1988).

       USCR 3.2.

       See Big Brother/Big Sister of Metro Atlanta v. Terrell, 183 Ga. App. 496, 498 (2) (359 SE2d 241) (1987).

       Id.

        U. S. Anchor, supra, 264 Ga. at 297 (1) (a conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means).

        Baldwin v. Roberts, 212 Ga. App. 546, 547 (2) (442 SE2d 272) (1994).

       (Citations and punctuation omitted.) Community Fed. Sav. &c. Assn. v. Foster Developers, 179 Ga. App. 861, 864 (1) (348 SE2d 326) (1986).

       Id.

        Allen v. T. A. Communications, 181 Ga. App. 726, 727 (353 SE2d 569) (1987).

        Crawley v. Sexton, 207 Ga. App. 360, 364 (1) (427 SE2d 804) (1993).

        Tomlin v. Bickerstaff, 85 Ga. App. 48, 51-52 (2) (68 SE2d 224) (1951).

       See generally Sharp-Boylston Co. v. Lundeen, 145 Ga. App. 672, 674 (244 SE2d 622) (1978).

        Manderson & Assoc. v. Gore, 193 Ga. App. 723, 735 (9) (389 SE2d 251) (1989).

        Pyle v. City of Cedartown, 240 Ga. App. 445 (524 SE2d 7) (1999).


text:
    A99A2326.
    QUINN v. CITY OF CAVE SPRING.
    (532 SE2d 131)
   Miller, Judge.

Lonnie Quinn sued the City of Cave Spring for personal injury and damage to his automobile caused by driving over an open manhole. The City moved for summary judgment, and Quinn appeals the court’s grant of that motion. We affirm.

1. Quinn argues that the court improperly granted summary judgment to the City solely because he failed to comply with Uniform Superior Court Rule 6.5, which requires that the party opposing the motion for summary judgment respond by submitting to the court a concise statement of each material fact as to which he contends there exists a genuine issue to be tried.

The court’s order states:

Defendant’s Motion for Summary Judgment and accompanying Brief set forth with specificity the reasons why Defendant claims there are no genuine issues of material fact. Plaintiff’s Response to the Motion for Summary Judgment does not comply with U.S.C.R. 6.5. That is, the Plaintiff does not list the material facts to which it is contended there are genuine issues for trial. Absent such compliance, the court concludes there are no such issues. . . . Defendant’s Motion for Summary Judgment is hereby GRANTED.

Even if Quinn failed to comply with USCR 6.5, summary judgment cannot be granted by default. The failure of the nonmoving party to file pleadings as required by the Uniform Superior Court Rules does not entitle the moving party to the grant of summary judgment.

Although it appears that the court may have granted the motion because Quinn did not comply with USCR 6.5, nevertheless on appeal from a grant of summary judgment we conduct a de novo review, because such grant must be affirmed if it is right for any reason.

2. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. To prevail, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a 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. All of the other disputes of fact are rendered immaterial.

Viewed in the light most favorable to Quinn, the evidence shows that as he was driving through the City, he noticed a large amount of water on the right side of the road. He then drove slightly to the left and hit what he later discovered was an uncovered manhole with water spewing out of it. The force of hitting the manhole blew his tires, sending one back tire down into the manhole, and caused his car to spin around, finally hitting a tree. Quinn suffered bruises to his face and torso. When City crews arrived to investigate, they discovered the manhole cover downhill about ten feet away and determined that the cause of the open manhole was a blockage in the sewer system forcing effluent up through the manhole.

In his complaint and brief in response to the City’s motion for summary judgment, Quinn claimed that the City negligently maintained its sewer system. He also claimed that the City was negligent per se for violating the rules and regulations of the “Department of Public Health and the Environmental Protection Division.”

3. Neither in his complaint nor in his response to the City’s motion does Quinn specify which Code section, rule, or regulation he contends the City violated. Nor does he explain how such violations are negligence per se.

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out . . . that there is an absence of evidence to support the nonmoving party’s case.

In its brief in support of its motion for summary judgment and its USCR 6.5 statement, the City has pointed out the lack of evidence that it violated rules and regulations of the “Department of Public Health and the Environmental Protection Division.” Quinn’s response to the City’s interrogatory requesting him to identify “all statutes, rules, regulations, ordinances, and code sections,” is not part of the record on appeal. But the City, in its summary judgment brief, explains that Quinn’s response was the “Environmental Protection Act and Regulations concerning run off water flow.” The City further explains that it could only assume that Quinn was referring to the Clean Water Act. In pointing to the failure of Quinn to identify the Code section or regulation, the City has established a lack of evidence to support this claim and discharged its burden.

Quinn was then required to point to specific evidence giving rise to a triable issue, which he failed to do. In response to the City’s USCR 6.5 statement, Quinn simply denied the averments without further explanation. Because Quinn again failed to specify the particular rule or regulation he contends the City violated, he has rested on his pleadings. Therefore, there is no specific issue presented for trial, and the City is entitled to summary judgment on this portion of Quinn’s claim.

4. Quinn alleged the City was negligent for failing to place a warning device at the location of the open manhole, even though it was aware of the hazard that caused the manhole cover to become dislodged. The City claims (a) that it could not have anticipated that excess rainwater would result in the sewer system becoming clogged and causing the manhole cover to be lifted from its retaining ring, and (b) that it had no notice that there was effluent escaping from the manhole. A public works employee testified that the first notice of the manhole cover lifting from its retaining ring was after Quinn’s accident and that the occurrence was unanticipated. Under OCGA § 32-4-93 (a),

[a] municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.

If the defect existed only a short time so the municipality could not reasonably have had knowledge, then actual notice must be shown; if the defect existed for a sufficient length of time that by reasonable diligence in the performance of its duty, the defect ought to have been known by the City, then notice will be presumed. “If a city has notice of a dangerous defect . . . , it is its duty to exercise ordinary care in remedying the same or placing a safeguard about it.” “A further requirement in order for the city to be chargeable is that it had a reasonable opportunity to remedy the defect.”

Prior to a determination whether the City failed to provide warning of the hazard, the initial inquiry is whether the City had notice of the defect. The City employee testified that the City’s wastewater plant had been under a consent order for exceeding its discharge limit and that the accident could have been avoided if one of the sewage lines had been renovated when others were. He further testified that although in the past he had seen other manhole covers float up and rest “in a cocked position,” this was the first time he had seen a manhole cover lift off of its retaining ring.

But the fact that the City was aware of violations of its discharge limits does not put the City on notice of the defective condition created by this manhole cover completely dislodging from its base. First, there is no evidence that there were repairs on or problems with the system at or near the site of Quinn’s accident. Second, although Quinn urges that the employee’s testimony that he has seen water cause a manhole cover to move into a cocked position is evidence of notice, it is not evidence (a) that the current sewage problems had caused any effluent to overflow out of a manhole cover so as to cause one to float, or (b) that the City was on notice of the potential of this particular manhole cover or any manhole cover becoming completely dislodged. Third, nothing in the record shows a past occurrence of a manhole cover becoming dislodged on any of the City’s streets or that a consent order involved any such occurrence. Because there is a lack of evidence that the City had actual or constructive knowledge of the defect created by the overflow resulting in the absence of the manhole cover, the issue of negligence becomes a matter of law. The City’s motion pierced the pleadings, putting the burden on Quinn to come forward with specific facts and present his case in full to show that genuine issues remained for jury resolution. Quinn’s negligence claim must fail as he did not produce evidence to controvert the City’s evidence that it had no notice of the defect. Accordingly, we affirm the trial court’s grant of summary judgment to the City.

Judgment affirmed.

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

Decided March 22, 2000

Reconsideration denied April 14, 2000

James A. Satcher, Jr, for appellant.

Magruder & Sumner, J. Clinton Sumner, Jr, John A. Owens, for appellee.

       See Pearson v. Small World Day Care Center, 234 Ga. App. 843, 844 (2) (a) (508 SE2d 200) (1998); Robertson v. Wheeler, 208 Ga. App. 68, 69 (1) (429 SE2d 714) (1993).

        Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

        Stephens v. State Farm &c. Ins. Co., 236 Ga. App. 758, 759 (1) (513 SE2d 508) (1999); Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 681 (2) (498 SE2d 748) (1998).

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

       Id.

       (Citation and emphasis omitted.) Id.

       Id.

       See id.

       “This Code section is an exception to the general rule that a city enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function.” City of Vidalia v. Brown, 237 Ga. App. 831, 832-833 (1) (516 SE2d 851) (1999).

       See City of Atlanta v. Hightower, 177 Ga. App. 140 (338 SE2d 683) (1985).

        Andrews v. City of Macon, 191 Ga. App. 745, 747 (2) (382 SE2d 739) (1989).

       (Citations and punctuation omitted.) Hightower, supra, 177 Ga. App. at 141.

       (Citations omitted.) Id.

       See Andrews, supra, 191 Ga. App. at 747 (2).

       See id.

        See Alghita v. Universal Investment &c. Co., 167 Ga. App. 562, 566-567 (307 SE2d 99) (1983).


author: Johnson, Chief Judge.

text:
    A98A2280.
    SMITH v. THE STATE.
    (533 SE2d 772)
    Decided April 14, 2000.

      Monte K. Davis, for appellant.

      Keith C. Martin, Solicitor, Kimberly A. Gross, Assistant Solicitor, for appellee.
   Johnson, Chief Judge.

In Division 4 of Smith v. State, 236 Ga. App. 548, 553 (512 SE2d 19) (1999), we held that the trial court did not abuse its discretion in ordering Smith to pay travel costs incurred by the state in calling two out-of-state police officers as witnesses. The Supreme Court granted the writ of certiorari to address this issue.

In Smith v. State, 272 Ga. 83 (526 SE2d 59) (2000), the Supreme Court reversed our holding in Division 4. Accordingly, our decision is vacated as to Division 4, and the judgment of the Supreme Court is made the judgment of this Court with respect to that division. The case is remanded to the trial court to vacate the sentence insofar as it requires Smith to pay the witnesses’ hotel and airline costs.

Judgments of conviction affirmed. Sentence vacated and case remanded.

Smith, P. J., and Barnes, J., concur.


author: Eldridge, Judge.

text:
    A00A0482, A00A0483.
    SALTIS v. A.B.B. DAIMLER BENZ (NORTH AMERICA N.O., INC.); and vice versa.
    (533 SE2d 772)
   Eldridge, Judge.

Dr. Lawrence Saltis, M.D., received injuries when the shuttle train doors at Atlanta Hartsfield International Airport closed on him in the doorway as he attempted to exit the train and to stop the doors from closing on a child. As the train doors closed, they caught his carrying bag strap, while the bag remained inside the train. The strap of the bag was over his shoulder, and his arm was wrenched as the train pulled away. A.B.B. Daimler Benz (North America N.O., Inc.) d/b/a Ad Tranz Atlanta, Inc., appellee-defendant, operated and maintained the shuttle trains as gratuitous public conveyance for passengers within the terminals and concourses. Defendant moved for summary judgment on contributory negligence, assumption of risk, and lack of negligence. The trial court granted defendant’s motion. This Court finds, however, that the duty of care owed to such passenger was extraordinary care. Defendant’s evidence failed to pierce the complaint, and plaintiff’s evidence raised material issues of fact for jury determination. Therefore, we reverse.

Case No. A00A0482

1. Plaintiff’s three enumerations of error go to three different reasons why the trial court erred in granting summary judgment, and we agree as to each.

(a) Under OCGA § 9-11-56 (a), (c), and (e), the defendant must pierce the contentions of the complaint with competent evidence, showing from the entire record or the absence of evidence that at least one essential element of each theory of recovery is absent or cannot be proven at trial. The movant must carry this initial burden of proof before the burden of coming forward with some evidence to create a material issue of fact shifts to the respondent. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, the issues deal with duty and breach of duty of extraordinary care by the defendant regarding the operation of a carrier of passengers on a public conveyance, i.e., the shuttle train, through the terminals and concourses of the airport without fee. OCGA §§ 46-9-132; 51-1-3; Harlan v. Six Flags Over Ga., 250 Ga. 352, 353 (297 SE2d 468) (1982). Thus, defendant could be held liable by a jury for slight negligence. OCGA §§ 46-9-132; 51-1-3. See Helmly v. Savannah Office Bldg. Co., 13 Ga. App. 498, 499 (2) (79 SE 364) (1913), overruled on other grounds, Darlington Corp. v. Finch, 113 Ga. App. 825, 828-829 (149 SE2d 861) (1966).

A carrier of passengers is one that undertakes the transportation of persons; a person or corporation who undertakes to transport or convey persons from one place to another, gratuitously or for hire. Such a carrier may be either a special or private carrier, or a public or common carrier. To constitute a public conveyance a common carrier, it is not necessary that it come within the definition of a public utility, so as to be subject to the rules and regulations of a public utility commission.

(Citations and punctuation omitted.) Scott v. Torrance, 69 Ga. App. 309, 319-320 (3) (25 SE2d 120) (1943). See also Eason v. Crews, 88 Ga. App. 602, 613 (1) (77 SE2d 245) (1953); Helmly v. Savannah Office Bldg. Co., supra at 499.

The shuttle train or “people mover,” operated and maintained by the defendant, gives free transportation inside the secured area of the airport between the passenger terminals and concourses to airline passengers, individuals who come to meet or to see off the passengers, and airline employees. Such mode of transportation has the same status of public transportation as escalators and elevators, which also provide gratuitous transportation to passengers within a building, facility, or complex. See Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456, 458 (2) (475 SE2d 188) (1996). See also Bullard v. Rolader, 152 Ga. 369, 371 (1) (110 SE 16) (1921); Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 524 (1) (484 SE2d 249) (1997); Helmly v. Savannah Office Bldg. Co., supra at 499.

However, unlike automatic elevator doors with electronic beams or Metropolitan Atlanta Rapid Transit Authority train doors, which service the airport with substantially reduced pressure that will not close on passengers when there exists resistance or an obstruction between the doors and will automatically reopen, the shuttle trains’ automatic doors do not automatically reopen and require more than 30 pounds of force per door panel to stop them from closing, i.e., more than 60 pounds of combined force to stop both doors from closing. See Darlington Corp. v. Finch, supra at 828 (where all the passenger had to do to stop the elevator doors from closing was to touch the rubber flange on one door). With the crowds of passengers with shoulder hanging bags, diaper bags, or shoulder purses at the shuttle stops and on the trains at the world’s busiest airport, as well as the presence of young children, defendant should have reasonably foreseen that a child or other person would be at risk between the doors; that someone would attempt to stop the doors from closing; or that the crowds would delay detraining so that the doors would close on a body, clothing, or luggage with a shoulder strap around a passenger being caught between the doors. The duty to exercise extraordinary care to protect passengers mandates that more than a mere general warning must be provided to satisfy the requisite duty of care, particularly when 30 pounds of force per door are required to stop them from closing and the doors do not reopen automatically under resistance like elevators or MARTA train doors. “The exercise of extraordinary diligence is required in the transportation of passengers while in the [shuttle], and also in giving intended passengers reasonable opportunity to enter [or detrain from] it.” Helmly v. Savannah Office Bldg. Co., supra at 498 (2).

Therefore, City of Winder v. Girone, 265 Ga. 723, 724 (462 SE2d 704) (1995), dealing with a municipal nuisance from a clogged sewage pipe, causing the backing up of sewage into a house, where the owner intentionally encountered a known and appreciated danger, stands distinguished on the law and facts from a personal injury case such as this, where there exists a duty of extraordinary care. Defendant presented evidence as to what usually happened and not as to what actually happened on the day of the incident, because the train was automated and no one went to investigate, since there was no computer-generated warning. While this evidence showed that the doors normally took 3.2 seconds to open and approximately 4.5 seconds to close, the length of time that the doors remained open to detrain a crowded train was never revealed, nor did it show whether such times applied on this occasion. Also, the evidence showed that under industry standards the doors closed with 30 pounds of pressure per panel “which is an accepted and safe amount of pressure”; the evidence did not show that was the pressure on that occasion. Further, the evidence failed to reveal what industry’s standards had been referenced and under what conditions such standards would be appropriate.

Robert F. Alexander, who gave the affidavits, identified himself merely as defendant’s operations manager at Hartsfield but failed to demonstrate qualifications as an expert witness to express the opinion that 30 pounds of force per door panel of closing pressure constituted an “accepted and safe amount of pressure” or that such constituted a “safe and accepted amount of pressure in the industry,” or to present a factual predicate for a lay opinion. OCGA § 24-9-67; Johnson v. Knebel, 267 Ga. 853, 855 (1) (485 SE2d 451) (1997). Thus, such opinions had no probative value and were insufficient to support the motion as admissible evidence. Id. at 858.

Alexander testified that every time the train leaves the station “an audible warning is given that the train is leaving the station and that passengers should prepare themselves” and “passengers should watch for the doors as they are closing”; however, he could not testify that this occurred on this car at the time of the injury.

Alexander never testified that there existed a warning on the outside of the train, that the doors would not reopen automatically, that over the inside of the door there was a light warning of closing, or that the “audible warning” inside the train warned that the doors would not reopen, although such facts were argued to the trial court.

The statement of undisputed material fact erroneously contended that Alexander’s affidavit contained such facts, which do not exist either there or anywhere in the record of evidence. A careful examination of both Alexander’s affidavits fails to reveal facts that warnings were given “that the doors do not spring back,” “[t]here are additionally visual warnings inside and outside the people mover indicating that the doors do not spring back,” or “[a] 11 of these conditions and warnings were in place on October 17, 1994.” Thus, the record is devoid of evidence to support such claimed warnings that the doors would not reopen. “Contentions as to undisputed material facts under Rule 6.5 of the Uniform State Court Rules are not evidence for purposes of summary judgment, nor does any lack of response to such contentions amount to an admission of fact.” (Citations omitted.) Southern Gen. Ins. Co. v. Davis, 205 Ga. App. 274, 275 (421 SE2d 780) (1992).

While there was some warning that the doors were closing, the content of the warning failed to specify the actual danger of doors not automatically reopening and of the substantial combined closing force of 60 pounds, so as to satisfy the duty of extraordinary care. See Helmly v. Savannah Office Bldg. Co., supra at 498, hn. 2.

Defendant’s evidence failed to satisfy movant’s burden of proof, even when the liberal standards of Lau’s Corp. v. Haskins, supra, are applied. OCGA § 9-11-56 (e); Eason v. Crews, supra at 613.

(b) Pretermitting that movant failed to carry its burden of proof, plaintiff’s testimony and the affidavit of Christopher A. Ricker constitute some contrary evidence, so that plaintiff came forward with some evidence to create a jury issue. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, supra.

Plaintiff started to get off the crowded train; a strange child started to follow him off; and plaintiff blocked the door to keep the doors from closing on the child and separating the child from his mother. However, the automatic doors would not stop closing, and plaintiff could not exert sufficient force to stop the doors closing. When plaintiff stepped out the doors to protect himself from being caught between them, plaintiff’s shoulder bag got caught inside the car, but the strap held plaintiff to the bag from the outside of the train. The train started to move, pulling plaintiff along. Finally, plaintiff succeeded in pulling himself free from the shoulder strap but received injuries in the process. This raised issues of comparative negligence, as well as gave rise to circumstantial evidence of negligence of the defendant. See Chapman v. Turnbull Elevator, 116 Ga. App. 661, 664-666 (158 SE2d 438) (1967).

At the time of plaintiff’s injury, he approached and entered the train while the doors were open, concealing any warning signs on the outside of the doors. The train was packed so that any signs inside the train would be obscured. The plaintiff was among the last to board the train. Any audio announcement or warning given prior to the train’s departure was unintelligible, because of talking, laughing, and audio quality. After the train started, plaintiff heard an announcement that was unintelligible because of audio and crowd noise. He saw no visual warnings inside the train. Thus, foreseeable conditions, i.e., open doors obscuring warning signs, crowded cars obscuring warning signs inside, and crowd noise masking any audio warnings, raised a factual question as to the adequacy of warnings.

The affidavit of Ricker created a jury question, although it covered a time period over five years later, as to the adequacy of warnings. He stated that there existed visual warning signs on the outside of the door panels warning that the automatic doors will not reopen, but that such signs became concealed when the doors open. He also testified that inside the train there existed no such warnings. Further, he testified that, at the time of the departure, there is an auditory warning outside the train that the doors will not reopen. A similar auditory warning occurred inside the train. He expressed a lay opinion that inside the train such warning was difficult for him to hear when the train was crowded, a present sense observation of multiple facts and factors. Johnson v. Knebel, supra at 856-857 (2)

This Court has held that Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997), applies to the automatic leveling of elevators as well as conditions of floors; therefore, by extension such principles apply to similar automatic doors, so that the passenger’s contributory or comparative negligence was a matter for a jury. Scarbrough v. Dover Elevator Co., 232 Ga. App. 149 (500 SE2d 616) (1998). “Passengers entering [or exiting] an elevator [or automatic shuttle train] are confronted with a multitude of events: The opening doors, exiting passengers, other passengers entering along with this passenger, and the constant realization that the doors will close on a timed basis.” (Punctuation omitted.) Scarbrough v. Dover Elevator Co., supra at 154. Thus, a passenger has little opportunity to decide what is the reasonable course of conduct in the exercise of ordinary care for his own safety under the circumstances of this case, i.e., protection of a child versus self-protection in the seconds when the doors are closing.

Furthermore, assumption of the risk requires the subjective understanding and appreciation of a specific, particular danger with actual and full knowledge of the risk and a conscious choice to encounter such known specific risk despite the danger. Such subjective knowledge must exist before the assumption of the risk defense will bar liability, although contributory negligence could bar liability. Vaughn v. Pleasent, 266 Ga. 862, 864-865 (1) (471 SE2d 866) (1996). Absent a specific warning of the particular risk encountered that brings the risk home to the plaintiff, “general, non-specific [warnings of the] risks that might be associated with such conditions or activities” would be inadequate for assumption of the risk to attach. Id. at 864. Thus, a jury issue exists as to assumption of the risk and contributory negligence. Summary judgment must be reversed.

Case No. A00A0483

2. Daimler Benz’s enumeration of error is that the trial court erred in denying the motion to strike Ricker’s affidavit, because it “did not set forth facts as would be admissible in evidence and thus violated the requirements of OCGA § 9-11-56 (e).” We do not agree.

Defendant contends that Ricker failed to show that the warnings he saw and heard were the same or similar to those in this occurrence in order to be admissible, citing Skil Corp. v. Lugsdin, 168 Ga. App. 754 (309 SE2d 921) (1983). All that need be shown for admissibility is that the facts and circumstances be sufficiently similar to have probative value; where the evidence shows that there exists substantial similarity between the condition or occurrence, the weight and probative value of such prior or subsequent occurrence rest with the jury to decide. Cochran v. Lowe’s Home Center, 226 Ga. App. 417, 418-419 (487 SE2d 50) (1997).

Alexander’s affidavit did not indicate that any remedial changes or any changes had occurred as to the warnings given inside or outside of the train and when the warnings were given, which corroborated Ricker’s affidavit. In fact, Ricker’s affidavit gave the specific nature of the warnings, i.e., the doors would not reopen, which Alexander’s failed to do. Further, Ricker’s affidavit received corroboration from the plaintiff that some auditory message occurred outside the shuttle train prior to the train leaving, as well as inside the shuttle train. The plaintiff testified that audio and crowd noise prevented him from understanding the messages; Ricker stated his lay opinion that the warning appeared to him difficult to understand when the train had a crowd of passengers, which was a substantially similar condition to the condition about which plaintiff testified regarding the occurrence.

While the record lacks evidence of a visual warning sign or of the auditory warning that the doors would not reopen, except for Ricker’s affidavit, the defendant’s factually unsupported statement of undisputed material fact asserts the same facts as stated by Ricker, which would estop the defendant from asserting otherwise. The only portion of Ricker’s affidavit not supported by either Alexander’s affidavit or defendant’s assertion of unproven fact is Ricker’s statement of opinion, which was corroborated by the plaintiff.

For admission into evidence as to each prior or subsequent occurrence, the party must demonstrate through some evidence only of substantial similarity, which has a spectrum of evidence from identical facts and circumstances to barely substantially similar facts. See Mills v. Norfolk Southern R. Co., 242 Ga. App. 324 (3) (526 SE2d 585) (2000). See also Cochran v. Lowe’s Home Center, supra at 418-419; Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 877-878 (1) (447 SE2d 302) (1994); Skil Corp. v. Lugsdin, supra at 756 (1). Thus, the trial court did not err in denying the motion to strike.

Decided April 14, 2000.

Eidson & Brennan, Timothy R. Brennan, for appellant.

Mozley, Finlayson & Loggins, Sewell K. hoggins, J. Marcus Howard, for appellee.

Judgment affirmed in Case No. A00A483. Judgment reversed in Case No. A00A0482.

Blackburn, P. J., and Barnes, J., concur.


author: Barnes, Judge.

text:
    A00A0603.
    GIBSON v. THE STATE.
    (533 SE2d 783)
   Barnes, Judge.

Michael Gibson appeals his convictions for theft by taking a motor vehicle (Count 1), obstruction of a law enforcement officer by running away (Count 2), two counts of giving a false name to a law enforcement officer with the intent to mislead (Counts 3 and 4), driving on a suspended license (Count 5), and fleeing a law enforcement officer (Count 6). He was sentenced to 15 years to serve.

Gibson contends the evidence does not support his convictions. With the exception of Count 2, we disagree and affirm.

1. On appeal the evidence must be viewed in the light most favorable to the verdict, Gibson no longer enjoys the presumption of innocence, and this court determines the sufficiency of the evidence and neither weighs the evidence nor judges the credibility of the witnesses. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Conflicts in the evidence are resolved by the jury. Kapua v. State, 228 Ga. App. 193, 195 (1) (491 SE2d 387) (1997).

2. Viewed in the light most favorable to the verdict, the evidence shows that between 11:00 p.m. one night and 6:30 a.m. the next morning, a Cadillac Fleetwood sedan was stolen from an apartment complex. The owner promptly reported the theft to the police and the apartment manager, and that day, the manager saw the stolen car with three men inside being driven on a public street. The manager testified at trial that Gibson was in the car and that she saw him get in the driver’s side of the car.

She followed in her car and had her passenger call 911 to report the stolen car and their location. Later, the police took over from her. A policeman came up behind the stolen car and activated his blue lights and siren. The officer testified at trial that he “was positive” that Gibson was driving the car. The stolen car, however, did not stop, and a chase ensued. The car finally left the road and stopped against a tree. At that time, the three occupants of the car fled. The police apprehended two of the men, including Gibson.

After being apprehended, Gibson identified himself to one police officer as Michael Smith and to another officer as Michael Simmons. At the jail, however, he was properly identified as Michael Gibson. Additionally, Gibson signed the indictment as Michael Gibson.

Although the prosecution introduced Gibson’s statement claiming that he was not driving the stolen vehicle, a passenger in the stolen car and a police officer both testified that Gibson was the driver. At trial, an investigator testified that Gibson’s driver’s history, obtained from the Georgia Crime Information Center, showed that his driver’s license was suspended on March 13, 1993, and had not been reinstated. The computer printout containing this information was admitted in evidence.

(a) Gibson argues that insufficient evidence supports his conviction for theft by taking the Cadillac because the State relied upon the presumption arising from recent, unexplained possession of stolen property, and in this case he explained that he was in the car because the person driving the car had given him a ride.

Although the evidence of recent, unexplained (or unsatisfactorily explained) possession of stolen goods may be sufficient to give rise to an inference that the defendant committed [theft by taking], the sufficiency of the evidence to support the conviction must still be adjudged by the totality of the evidence under the reasonable doubt standard applied in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Once it is shown that goods were stolen in a [theft by taking], absence of or unsatisfactory explanation of the possession of the goods will support a conviction for [theft by taking] based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation. WThat constitutes recent possession is in all cases a jury question, to be determined very largely from the character and nature of the stolen property.

(Citations and punctuation omitted.) Smith v. State, 234 Ga. App. 586, 592-593 (7) (a) (506 SE2d 406) (1998). As the evidence from the passenger and the police officer conflicted with Gibson’s explanation, a jury question existed, and the evidence is sufficient to sustain Gibson’s conviction for this offense.

(b) Gibson further contends the evidence is insufficient to sustain his convictions for obstruction of a law enforcement officer, two counts of giving a false name to a law enforcement officer, and fleeing a law enforcement officer because the indictment for each of these offenses alleged that Officer Myers was the law enforcement officer involved, but the evidence presented at trial showed that Officer Myers arrived on the scene after Gibson was in custody and was involved in only one offense in which Gibson gave him a false name. Gibson also contends that he cannot be convicted of giving a false name because the State did not prove his real name. See Agony v. State, 226 Ga. App. 330, 333-334 (4) (486 SE2d 625) (1997).

Contrary to Gibson’s contention, the State did provide evidence that his name was Michael Gibson and not Michael Smith or Michael Simmons. Several witnesses identified him as Michael Gibson, he personally signed the indictment as “Michael Gibson,” and he was consistently referred to as Michael Gibson throughout the trial without repudiation. Such evidence is sufficient to establish that Michael Gibson is appellant’s real name. Brown v. State, 236 Ga. App. 478, 480-481 (2) (512 SE2d 369) (1999). “Concordance of name alone is some evidence of identity. Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary.” (Citation and punctuation omitted.) Robinson v. State, 231 Ga. App. 368-369 (1) (498 SE2d 579) (1998). Under this evidence and Officer Myers’ unrebutted testimony that Gibson identified himself as Michael Simmons, the evidence was sufficient to support Gibson’s conviction of the second count alleging he gave a false name to a law enforcement officer.

(c) While Count 4 alleges that Gibson gave the false name of Michael Smith to Officer Myers and Count 6 alleges that Gibson fled from Officer Myers, the proof at trial showed that Officer Myers was not the police officer involved in either offense. Instead, Gibson asserts that the evidence shows that Gibson gave the false name Michael Smith to Officer Brand and fled from Officer Wine. Although Gibson’s assertions are correct factually, these errors in drafting the indictment are of no help to his cause.

When considering whether there was a fatal variance between the proof and the allegation in the indictment in a case alleging filing a false police report, we held:

OCGA § 16-10-26 provides that a person who willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state is guilty of a misdemeanor. Although the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant gave a false report of a crime, our review of the transcript does not reveal actual testimony that appellant specifically gave a report to Detective Partridge, as alleged in the accusation. In fact, when pressed on cross-examination, Detective Partridge testified that appellant did not make any statement to him at all. However, not every variance in proof from that alleged in the indictment is fatal. The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. Unless the variance subjects defendant to one of these dangers it is not fatal. The true inquiry is whether there has been such a variance as to affect the substantial rights of the accused. OCGA § 16-10-26 proscribes false reporting of a crime to any law enforcement officer or agency of this state. It is undisputed that appellant reported a stolen van to the Atlanta Police Department. Therefore, there was no fatal variance where Atlanta Police Detective Partridge was named in the accusation and the evidence showed that the false report was made to another Atlanta police official. Appellant was sufficiently informed of the charge against him so that he could prepare a defense. Moreover, there was no danger that appellant would be prosecuted again for the same offense.

(Citation and punctuation omitted.) Veal v. State, 211 Ga. App. 879, 880 (440 SE2d 762) (1994).

OCGA § 16-10-25 prohibits giving “a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birth date. . . .’’No requirement exists that the false name be given to any particular officer. Under the circumstances, the analysis employed in Veal v. State, supra, 211 Ga. App. at 880, applies. Gibson did not dispute that he gave a false name to a police officer. Thus, no fatal variance exists in this case where the indictment named Officer Myers, but the evidence showed that Gibson gave the false name to Officer Brand.

In the same manner, it is unlawful under OCGA § 40-6-395 (a) for:

any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.

Decided April 14, 2000.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, E. Wayne Jernigan, Jr., Assistant District Attorney, for appellee.

The focus in this Code section is on the officer or vehicle being identified clearly as a police officer or police vehicle, and not on any particular officer. Consequently, as Officer Wine testified that he was driving a patrol car when he saw the stolen car and that Gibson fled after Officer Wine turned on the vehicle’s emergency equipment — its lights, siren, and blue lights — this testimony was sufficient.

In both of these instances, Gibson was sufficiently informed of the charge against him so that he could prepare a defense against the charge of giving a false name and fleeing and eluding a law enforcement officer, and no danger exists that he would be prosecuted again for either of these same offenses. Accordingly, the evidence was sufficient to sustain his convictions for these offenses.

3. As the State concedes that insufficient evidence supports Gibson’s conviction of obstructing a law enforcement officer (Count 2), the conviction for that offense must be reversed, the sentence vacated, and the case remanded to the trial court for resentencing on the remaining counts.

Judgment affirmed in part and reversed in part, sentence vacated, and case remanded with direction.

Blackburn, P. J., and Eldridge, J., concur.


text:
    A00A0735.
    HILL v. THE STATE.
    (533 SE2d 779)
   Barnes, Judge.

Alex Andre Hill was convicted of cruelty to children and reckless conduct. The trial court sentenced him to 20 years on the cruelty count, to serve 15, and 12 months on the reckless conduct, to be served concurrently. Hill appeals his conviction of cruelty to children, arguing that the evidence was insufficient. We disagree and affirm.

We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in the light most favorable to the verdict, the evidence established that Hill refused to return his four-year-old son, Jordan, to Jordan’s mother after a week of visitation. The mother obtained an arrest warrant and returned to Hill’s house with a sheriff. When Jordan was reunited with his mother, he complained that his feet hurt. His mother saw bandages and fluid oozing from under his shoes and socks. Jordan told her he had wet himself and his daddy put him in hot water, an explanation he repeated to the arresting sheriff and to an investigating detective who spoke with Jordan in the hospital.

An emergency room nurse testified that, when she first saw Jordan in the hospital, he was in pain, crying, very upset, and would not let anyone remove his bandages. After receiving intravenous pain-relieving medicine, he calmed enough for the nurse to remove the bandages, which she described as very dirty and unsuitable for bum wounds because they stuck to the injuries and caused additional pain when removed. An examining pediatrician testified that Jordan suffered severe second-degree burns on his feet, ankles, and genital area and that these injuries occurred more than 24 hours before the child came to the hospital.

An investigating detective testified that he measured the water temperature from Hill’s tap on two occasions. The first time the hot water measured 135°F, the second time 130 °F. A pediatrician with expertise in children’s burns testified that a child would have to be held for thirty seconds in 130° water or for ten seconds in 135° water to cause the burns Jordan suffered. She further testified that these burns could not have been caused by accident, because a normal, ambulatory child of Jordan’s age would have pulled away from the water immediately and thus avoided bums of that severity.

Hill testified that he and Jordan had been sleeping when Jordan woke him to say he had wet himself. Hill ran some bath water, put Jordan’s clothes into the washing machine, then went back to bed after telling Jordan to get in the tub to wash himself. After dozing off, he heard Jordan crying out for him and ran to the bathroom, where he saw the child standing with one foot in the tub and the other foot on the floor. He saw skin floating in the water and panicked, calling his girlfriend for advice. When asked on cross-examination why he did not take the child to the hospital, he replied:

Well, to tell you the truth because I knew people, they already know me over there. They know my name. And I didn’t want to get in no trouble. I had got off of parole for them drugs. I had spent all that time, and I didn’t want no trouble. I was trying to get my life right. I was just scared.

Hill was indicted for one count of cruelty to children for burning Jordan with scalding hot water and a second count of cruelty to children for failing to procure proper medical treatment for him. The jury found him guilty of the lesser included crime of reckless conduct on the first count and of cruelty to children on the second count. Hill appeals only the second conviction.

Hill asserts that insufficient evidence supports the cruelty to children conviction for failing to procure medical treatment under OCGA § 16-5-70 (b), which provides: “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”

More specifically, Hill argues that no evidence showed that he maliciously caused pain to Jordan by not procuring prompt medical treatment, but that he followed the advice given by his girlfriend on how to treat the injuries. He contends the only possible adverse reaction to the delayed treatment was infection, and the examining pediatrician testified that Jordan’s wounds were not infected. This argument, however, overlooks the pain Jordan suffered while Hill delayed his medical care because he was afraid that he would get in trouble and the unnecessary pain Jordan suffered because of Hill’s improper bandaging of the burns. Further, the argument misconstrues the meaning of “malice” in OCGA § 16-5-70 (b):

For purposes of this Code section, malice in the legal sense! ] imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

(Citation and punctuation omitted.) Brewton v. State, 266 Ga. 160, 161 (2) (465 SE2d 668) (1996).

Being afraid because one might get in trouble is neither justification nor excuse for refusing to obtain medical care for one’s injured child. Moreover, the jury could infer from Hill’s actions in refusing to return Jordan to his mother that he tried to delay discovery of Jordan’s burns and that this delay caused increased physical and mental pain to the child. The emergency room nurse testified that Jordan was too upset and in too much pain for her even to remove his bandages when he was first brought in and that he had to be medicated for pain before his dirty and unsuitable bandages could be removed for treatment.

Decided April 14, 2000.

Little, Bates & Kelehear, Sam F. Little, for appellant.

Kermit N. McManus, District Attorney, Stephen F. Spencer, Assistant District Attorney, for appellee.

Accordingly, we conclude that, based upon this evidence, a rational trier of fact could find sufficient malice to find Hill guilty beyond a reasonable doubt of cruelty to children for failing to procure medical treatment for his son. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, P. J, and Eldridge, J., concur.


author: McMURRAY, Senior Appellate Judge.

text:
    A00A1200.
    WILLIAMS v. THE STATE.
    (533 SE2d 793)
   McMURRAY, Senior Appellate Judge.

Defendant Gibson Williams was convicted in 1991 of kidnapping with bodily injury, robbery by intimidation, possession of less than one ounce of marijuana, and criminal use of a firearm with an altered identification mark. Williams was sentenced to life for kidnapping, twenty years consecutive for robbery, and probated sentences of five years and twelve months for the marijuana and gun offenses. Williams’s conviction was affirmed on appeal to this Court.

On July 18, 1998, Williams, proceeding pro se,. filed a petition to correct his sentences. In part, Williams alleged the sentences imposed were void because the trial court failed to conduct a presentence hearing. The petition was denied. Williams sought a discretionary appeal in this Court, which dismissed the application.

The Supreme Court of Georgia granted Williams’s petition for certiorari following this Court’s dismissal of his application for discretionary appeal and affirmed, ruling that the trial court’s failure to conduct a presentence hearing pursuant to OCGA § 17-10-2 in a nondeath penalty case did not render Williams’s sentences void. The Supreme Court also held that the trial court’s order was directly appealable. Finally, the Court held that “all the sentences imposed upon Williams were sentences allowed under the law.”

Decided April 14, 2000.

Gibson Williams, pro se.

David McDade, District Attorney, for appellee.

Shortly thereafter, on December 27, 1999, Williams filed a second petition asking the trial court to correct sentences he alleges are void. Williams asserts that his kidnapping and robbery convictions merge, a contention he raised in the first petition.

The trial court correctly denied the petition on the grounds of res judicata.

“It is axiomatic that the same issue cannot be relitigated ad infinitum. (Cit.) The same is true of appeals of the same issue on the same grounds. Our determination (in the earlier appeal) is res judicata; the instant appeal is therefore barred, and we are without jurisdiction to review this same matter for a second time.” Horton v. State, 189 Ga. App. 370 (375 SE2d 668) (1988).

Stirling v. State, 199 Ga. App. 877 (406 SE2d 282).

Appeal dismissed.

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

        Williams v. State, 211 Ga. App. 393 (439 SE2d 11).

        Williams v. State, 271 Ga. 686, 691 (2) (523 SE2d 857).

       Id. at 688-689 (1).

       Id. at 691 (2).