author: Sognier, Judge.

text:
    76372.
    BLACK & WHITE CONSTRUCTION COMPANY, INC. et al. v. BOLDEN CONTRACTORS, INC.
    (371 SE2d 421)
   Sognier, Judge.

Black and White Construction Company, Inc. (B & W) brought an action against Bolden Contractors, Inc. (Bolden), its partner in a joint venture to perform masonry work on a construction project for the Miller Brewing Company. The multicount complaint, seeking the release and disbursement of funds held in escrow which had been paid to the joint venture, as well as damages for breach of the joint venture contract, was later amended to seek only an accounting. Bolden’s answer and counterclaim sought damages for fraud, breach of fiduciary duty by various actions of B & W, including commingling of joint venture funds with its own monies, and an accounting of the joint venture funds. The first trial ended in a mistrial, after which the trial court, acting sua sponte, entered an order adding several parties to the action, including Masonry Contractors, Inc. (MCI) and the case again proceeded to trial, with Bolden recast as plaintiff, and B & W and MCI as defendants. At the close of the evidence, the trial court ruled that B & W had commingled some of its funds and funds belonging to the joint venture, but that after an audit, B & W had sufficiently accounted for these funds to prevent damages being awarded for the commingling. The remaining issues went to the jury, which returned a verdict in favor of Bolden against B & W and MCI based on fraud, awarding actual damages, punitive damages, attorney fees and litigation expenses. Judgment was entered on this verdict, and following the denial of their motions for a new trial, B & W and MCI appeal.

1. Appellants contend the trial court erred by failing to bifurcate the legal and equitable claims, thereby allowing the jury to hear prejudicial evidence relevant only to the equitable issue of accounting. First, appellants’ argument that only legal issues, and not equitable issues, are triable before a jury, is specious; the cases cited by appellants do not stand for this proposition and appellants’ reliance on Beacon Theatres v. Westover, 359 U. S. 500 (79 SC 948, 3 LE2d 988) (1959) and Southland Reship v. Flegel, 534 F2d 639 (5th Cir. 1976) is misplaced. Contrary to appellants’ claim, the trial court properly decided the legal issues first, since “where determination of the equitable issues would be conclusive as to the legal issues, the legal issues must be tried first in order to prevent abrogation of the right to a jury trial.” Southland Reship, supra at 644. See also Dairy Queen v. Wood, 369 U. S. 469 (82 SC 894, 8 LE2d 44) (1962).

Second, the question of severance of issues is a matter within the discretion of the trial court. Lansky v. Goldstein, 141 Ga. App. 345 (233 SE2d 437) (1977). In such cases, there is no reversible error absent a clear and manifest abuse of that discretion. See Sollek v. Laseter, 124 Ga. App. 131, 132 (183 SE2d 86) (1971). We find no such abuse of discretion here.

Finally, appellants do not specify what particular evidence, if any, relating to the accounting issue, was prejudicial to them. “ ‘It is the duty of the party asserting error to show it by the record. [Cits.] Assertions of evidence in briefs or enumerations of error cannot satisfy this duty. [Cit.]’ [Cit.]” Bellamy v. Edwards, 181 Ga. App. 887, 892 (7) (354 SE2d 434) (1987). Enumerations “should specifically and definitely set out the error complained of so that this court will not be compelled to grope in ascertaining what the error is. . . .” Baker v. Metallizing Co., 103 Ga. App. 174 (1) (118 SE2d 843) (1961). To warrant reversal, alleged error must be harmful, Whitehead v. Cogar, 180 Ga. App. 812, 813 (1) (350 SE2d 821) (1986), and in view of the fact that the evidence presented as to the accounting ultimately persuaded the trial court that B & W had satisfactorily accounted for all monies and that no damages were awardable for commingling, appellants have not demonstrated how any such evidence was sufficiently prejudicial as to require reversal.

2. Appellants next maintain, in several related enumerations of error, that the trial court erred by adding MCI to the action, sua sponte, before the second trial. We note initially that there can be no question that OCGA § 9-11-21 permits the court to add parties on its own initiative, and this may be done at any stage in the proceedings. Guhl v. Tuggle, 242 Ga. 412, 413 (249 SE2d 219) (1978). We further reject outright appellants’ claim that the addition was improper simply because MCI was added as a defendant in counterclaim since OCGA § 9-11-21 specifically allows the practice complained of. Appellants argue, however, that there are several other reasons why the addition of MCI was improper.

(a) There is no merit in appellants’ argument that the equitable claims against MCI were barred by the doctrine of laches. Laches does not consist of mere lapse of time, Grant v. Fourth Nat. Bank of Columbus, 229 Ga. 855, 868 (194 SE2d 913) (1972), rendering Cartin v. Boles, 155 Ga. App. 248 (270 SE2d 799) (1980), cited by appellants, inapposite. There also must be prejudice or injury to the party sought to be added resulting from that passage of time. See Clover Realty v. J. L. Todd Auction Co., 240 Ga. 124, 126 (239 SE2d 682) (1977); Grant, supra. Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109 (308 SE2d 211) (1983) is distinguished by its facts, since prejudice was clearly demonstrated in that case by the fact that the party sought to be added had died, necessitating joinder of the executrix instead, and substantially impairing the ability of the executrix to defend the action. In addition, the doctrine of laches is purely equitable and is not applicable to claims at law. Moore v. American Fin. System, 236 Ga. 610, 611 (3) (225 SE2d 17) (1976). Since the only equitable claim here was one for an accounting, which all parties agreed was necessary, no adverse consequences resulted to MCI from the accounting, and appellants have shown no prejudice resulting to MCI from its addition as a party. The trial court properly refused to apply the doctrine of laches.

(b) Appellants next argue that the addition of MCI as a party was improper because the claims against it were barred by the statute of limitations. We do not agree. OCGA § 9-11-15 (c) provides that “[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth ... in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”

Regardless of which statutes of limitation are applicable here, we find that all requirements of OCGA § 9-11-15 (c) are satisfied. It is clear that the claims against MCI arose out of the same transaction or series of transactions as those asserted in the original suit, and our focus must therefore be on the second portion of the statute. The deposition testimony of Robert Arch Hamilton, the president of MCI, established such a commonality of interest between MCI and B & W that it would be difficult to maintain that MCI did not receive notice of the institution of the original action. Hamilton testified that in addition to having been the president and owner of 42 percent of the stock in MCI, he was also the vice president of B & W, owned one-third of 70 percent of the stock in B & W, and was in on the formation of B & W. He further testified that William Amason, who had been president of B & W, had been the secretary and treasurer of MCI, had owned 42 percent of the stock in MCI, and that B & W and MCI had the same officers and directors. Finally, since B & W had, unbeknownst to appellee, assigned a portion of its duties under the joint venture contract to MCI, MCI, being aware both of appellee’s claims against B & W and the provisions of both the joint venture contract and its own contract with B & W, should have known that appellee’s claims were properly directed against it. Since no claim is made that the statute had run before the commencement of the original action, in which claims were asserted against B & W, and all the requirements of OCGA § 9-11-15 (c) were satisfied, the claims against MCI related back to the time of filing the original claims.

(c) Appellants claim appellee lacked standing to assert any claims against MCI, since it was the joint venture, and not appellee, which was the beneficiary of the contract between B & W and MCI. However, the explicit terms of the agreement between B & W and MCI belie this argument. Paragraph (1) of the agreement between B & W and MCI states explicitly and clearly that “[MCI] agrees to assume full responsibility for the undertaking and completion of the obligations of B & W in the Joint Venture Agreement. . . relating to preparation of tax returns, tax forms, payroll tax deposits or requirements, and record keeping.” Thus, MCI stood in B & W’s shoes with regard to B & W’s obligations to appellee under the joint venture contract. Moreover, Paragraph (2) of that agreement lends further support to appellee’s claim that it is a third-party beneficiary of the contract between B & W and MCI since it provides that MCI “agrees to indemnify and hold harmless B & W and Bolden Contractors, Inc. [appellee], as joint venturers, their officers, agents and employees from any and all liability which may arise as a result of the failure to prepare or file any necessary returns or forms, or make any necessary deposits.” (Emphasis supplied.)

Accordingly, we find no error in the trial court’s addition of MCI as a party.

3. The record does not support appellants’ claim that failure to require the jury to elect between the contract theory of recovery and that based on tort amounted to an impermissible double recovery. The verdict form clearly demanded that the jury indicate upon which theory they based any verdict for appellee, and the jury clearly indicated that it based its award on the tort theory of fraud. Further, the trial court specifically instructed the jury that if it found for appellee, it would need to indicate the one theory, out of several presented, upon which they based their award. We find no error here.

4. We do not agree with appellants’ contention that because the trial court found there were no damages resulting from any commingling of funds, no damages could be awarded for breach of fiduciary duty amounting to fraud. The record does not support appellants’ argument that the entire gist of appellee’s claim against them for breach of fiduciary duty rested on the commingling claim. Rather, the record contains ample evidence of other acts which, if believed by the jury, could have constituted a breach of fiduciary duty amounting to actual fraud.

5. The remainder of appellants’ thirteen enumerations allege error in the charges of the trial court to the jury.

(a) Several portions of the trial court’s charge contained references to improper profits that appellants may have made. At the charge conference, the parties and the trial judge agreed that a modifying charge was necessary to indicate it was not suggested that all profits were improper, but only those which were secret profits. The court indicated the language it would use, counsel for appellants assented, and the agreed upon modifying charge was given. Although appellants argue that because reference is made to “profits” numerous times in the charge, the modifying charge should have been given an equal number of times, considering the general cautionary instruction in the charge that the jury was not to interpret any repetition as placing greater weight on the portions repeated, and viewing the charge as a whole, see Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 841 (351 SE2d 82) (1986), we do not find error in the trial court’s failure to repeat the modifying charge.

(b) Appellants contend the trial court erred by charging the jury that “breach of a fiduciary duty owed by one party to another constitutes actual fraud,” because breach of a fiduciary duty can amount only to constructive fraud, whereas actual fraud requires moral guilt. While it is true that constructive fraud is insufficient to support damages based on fraud, Windjammer Assoc. v. Hodge, 246 Ga. 85, 86 (269 SE2d 1) (1980), it is not true, as appellants contend, that breach of fiduciary duty may never be actual fraud. Rather, breach of fiduciary duty may be either innocent or intentional, and the latter will be sufficient to constitute actual fraud. See, e.g., Sutlive v. Hackney, 164 Ga. App. 740, 741-742 (297 SE2d 515) (1982); Scott v. Lumpkin, 153 Ga. App. 17, 19 (264 SE2d 514) (1980). Thus, in the case sub judice, where breach of fiduciary duty was alleged by appellee to have been intentional, that issue was a question for the jury to decide.

In analyzing appellants’ contention, we must again view the charge as a whole. Robert & Co. Assoc., supra. The trial judge properly instructed the jury concerning the difference between actual and constructive fraud, and that actual fraud implies moral guilt while constructive fraud may be consistent with innocence. He further charged the jury explicitly that “[i]n order for you to return a verdict on the basis of fraud in favor of [appellee] . . . against either [B & W] or [MCI] or both, you must find moral guilt on the part of that party. That is, you must find by a preponderance of the evidence that [B & W] or [MCI] acted with the intent to deceive or defraud [appellee]. Intentional breach of a fiduciary duty imports moral guilt.” (Emphasis supplied.) Thus, the charge as a whole left no doubt in the minds of the jury that they must find an intentional breach of fiduciary duty in order to award damages for fraud. “ ‘We will not impute ... an inability to the jury to follow the plain and unambiguous instructions of the judge. ... A charge that is sufficiently clear to be understood by jurors of ordinary capacity and understanding is all that is required.’ [Cit.] ” Gen. Warranty Corp. &c. v. Cameron-Hogan, 182 Ga. App. 434, 438 (7) (356 SE2d 83) (1987).

Decided June 13, 1988

Rehearing denied July 12, 1988.

Peter A. Wade, Mahlon C. Rhaney, Jr., Gary P. Bunch, Lauren L. Becker, for appellants.

Jack H. Senterfitt, for appellee.

Judgment affirmed.

Deen, P. J, and Carley, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    74594.
    TODD v. F. W. WOOLWORTH COMPANY.
    (372 SE2d 307)
    Decided July 13, 1988.

      Leigh R. Bodner, for appellant.

      Thurbert E. Baker, for appellee.
   McMurray, Presiding Judge.

On certiorari at 258 Ga. 194 (366 SE2d 674), the Supreme Court has reversed our decision in Todd v. F. W. Woolworth Co., 184 Ga. App. 864 (363 SE2d 564). Accordingly, in conformity with the mandate of that opinion, our judgment of affirmance is vacated and the judgment of the trial court is reversed.

Judgment reversed.

Sognier and Beasley, JJ., concur.


author: Banke, Presiding Judge. Beasley, Judge, Birdsong, Chief Judge,

text:
    76191.
    KELLEHER v. THE STATE.
    (371 SE2d 450)
   Banke, Presiding Judge.

This is a companion case to Kelleher, Jr. v. State (Case No. 75290) and Kelleher, Sr. v. State (Case No. 75291), jointly decided by this court on February 10, 1988, and reported at 185 Ga. App. 774 (365 SE2d 889) (1988). Held:

1. The appellant has filed a motion in this court seeking to amend her notice of appeal and to supplement the record by the inclusion of her trial transcript, which she did not originally designate for inclusion in the record on appeal. While the Supreme Court’s decision in Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16) (1981), might permit us to deny this motion, it certainly does not require us to do so. Indeed, in State v. Pike, 253 Ga. 304, 307 (320 SE2d 355) (1984), the Supreme Court held that, pursuant to OCGA § 5-6-48 (d), “an appellate court may, in its discretion [and on its own initiative], require that a record be supplemented . . . even after rendition of its decision.”

In view of the fact that the appellant has already caused the transcript of her trial to be transmitted to this court by the clerk of the trial court for inclusion in the record on appeal, no purpose would be served by denying her motion, other than to frustrate needlessly a resolution of the appeal on its merits. Consequently, the motion to amend the notice of appeal and to supplement the record is granted.

2. It is apparent from the transcript of the appellant’s trial that her conviction was based upon evidence seized from her home during the course of a search which this court, upon review of the convictions obtained in the two companion cases, has previously determined to have been unlawful. For the reasons stated in our prior decision reversing those convictions, we hold that the motion to suppress filed by the appellant in this case should also have been granted, with the result that her convictions of possession of cocaine and marijuana must also be reversed.

Judgment reversed.

Carley, Sognier, Pope, and Benham, JJ., concur. Beasley, J., concurs specially. McMurray, P. J., concurs in judgment only. Birdsong, C. J., dissents. Deen, P. J., dissents dubitante.

Beasley, Judge,

concurring specially.

In following the requirements of OCGA § 5-6-37 concerning the contents of a notice of appeal, appellant stated that “[t]ranscript of evidence and proceedings will not be filed for inclusion in the record on appeal.” The reason was given: “The record for this case is already before the Court in the matter of Michael Kelleher, Sr. and Michael Kelleher, Jr. vs. State, Court of Appeals Docket No. 75290.” As later shown, what appellant attempted to do was save transcript and copying costs by utilizing her companions’ case record, which she believed would be adequate because of the nature of the errors she wished us to review, and the nature of her trial.

Appellant’s non-jury trial was before the same judge who had presided at her husband’s and son’s joint trial. By agreement of both parties and the court, she was tried on the transcript and exhibits of her companions’ trial, as summarized by a narration, and stipulation of additional facts. The motions and rulings from the other cases were also adopted by stipulation. Based on the stipulated evidence, the court found appellant guilty. The other record was not actually tendered in evidence but was known by the judge.

When the appeal was docketed here, appellant moved us to adopt the record (meaning also the trial transcript) and appeal documents in the companions’ case, explaining why this should be allowed and believing that the transcript of her own perfunctory trial would be unnecessary. The motion, made in reliance on OCGA § 5-6-44, was denied. Thus we refused to take judicial notice of that record, transcript, and appeal documents which are in this court, in considering her appeal.

Appellant them moved to amend the notice of appeal and supplement the record with the transcript of her own short trial so that this court would “not dismiss or affirm without reaching the merits.” This transcript was filed here the next day.

I agree with the dissent, that we should not of our own initiative generally “require that additional portions of the record or transcript of proceedings be sent up, or require that a complete transcript of evidence and proceedings be prepared and sent up. . . .” OCGA § 5-6-48 (d). However, here we are not reaching out and perfecting the appeal when the party has been lax and not acted. To the contrary, appellant, having received our declination to consider her case on the other record, has simply asked for permission to amend her notice so that the superior court clerk would transmit the trial transcript and record as provided by OCGA § 5-6-41 (e), to supplement the judgment and sentence which appellant had originally asked for and the clerk had sent.

We have already informally set the filing in motion, and we should not backtrack. Nor should we ignore the transcript which the clerk has transmitted even without an amended notice of appeal, nor cause appellant the very expense she was trying to avoid, without even ruling on the merits of her appeal. Authority is provided to us by OCGA § 5-6-48 (d), see State v. Pike, 253 Ga. 304 (320 SE2d 355) (1984), as in effect a dismissal of her appeal will occur whether we dismiss it for failure to perfect the appeal with a transcript and complete record or we affirm the judgment for lack of the proper tools to review the errors enumerated. There is no conflicting departure here from the authorities cited in the dissent.

Several other factors also weigh in favor of granting her requests. No harm has been claimed by appellee should appellant’s motion be granted. The policy expressed in OCGA § 5-6-30 lays a hand on that side of the scale. More is added by the prospect of final resolution of appellant’s case if the merits are reached now. What tips the scale is fairness. Appellant will continue under sentence when the sentences of her two companions, who were the principal offenders (the State admitted at trial that its evidence only showed her to be a consumer of drugs and perhaps marginally an aider and abettor), have been reversed on a question of law which she also raises.

That brings us to the question of whether or not we should consider the relevant case papers in Case Numbers 75290, Kelleher, Jr. v. State, and 75291, Kelleher, Sr. v. State. Although the majority originally denied the motion that we do so, it implicitly agrees now to take judicial notice of them because the trial court did, insofar as the co-defendants’ trial court record and trial transcript were concerned. Although a bit unorthodox, no harm is shown by our doing so. The Supreme Court used the record from one case in two other cases, by stipulation, and without complaint of the Court, in Howard v. Eatonton Co-op Feed Co., 226 Ga. 788, 789 Par. 3 (177 SE2d 658) (1970). It would be uselessly wasteful of time and money to insist that appellant should have had copied and offered in evidence below, and transmitted here again, the entire record and transcript in the companions’ case, when both the trial court and we have it.

As shown by the opinion in Division 2, with which I concur in judgment only, we are clearly able to reach the merits of appellant’s dispositive enumeration of error.

Birdsong, Chief Judge,

dissenting.

I respectfully dissent from the majority opinion. I cannot concur with the conclusion that this court should permit the notice of appeal to be amended, nor should we direct the transcript be forwarded to this court for consideration of the merits of this appeal.

1. When appellant filed her notice of appeal she directed: “Transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.” Thereafter she filed a motion to “adopt” the record in the case of her husband and son. Because she had not been tried with them, this court denied the motion to “adopt.” Appellant then moved this court to permit her to amend her notice of appeal “pursuant to OCGA § 5-6-48 (d) to request that a transcript of Appellant’s trial be sent up or allow Appellant’s Notice of Appeal to be amended to include a copy of the transcript.” The majority opinion allows the Notice of Appeal to be amended and to “supplement the record by inclusion of her trial transcript. ...”

Our Code has set forth a procedure to be followed in transmitting the record and transcript on an appeal, and for supplementing and amending the record and transcript. It is mandatory that “the notice [of appeal] shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal.” OCGA § 5-6-37. If either party contends the record or transcript does not correctly or fully disclose what happened at trial, the parties can stipulate what occurred, or if they are unable to agree “the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion [of either party] or of its own initiative, may direct that the omission or misstatement shall be corrected and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court.” OCGA § 5-6-41 (f). Hence, if a “supplemental record” is desired, “[defendant's remedy is in the trial court, not the appellate court.” Epps v. State, 168 Ga. App. 79, 80 (308 SE2d 234); accord Bruce v. State, 175 Ga. App. 453, 454 (333 SE2d 394). This is because “. . . the trial court . . . has a necessary control over the designation and transmittal of both record and transcript. . . .” Smith v. Top Dollar Stores, 129 Ga. App. 60 (3) (198 SE2d 690); accord G. E. C. Corp. v. Southern Fabricators, 122 Ga. App. 452, 453 (177 SE2d 497).

The Code also grants to the appellee rights concerning the record and transcript. In OCGA § 5-6-42, where appellant has designated matter to be omitted from the record, appellee may designate “all or part of the omitted matters be included. . . .” Hence, the correct procedure set forth by the Code is that appellant designates what matter he desires included in and omitted from the record and transcript, then the appellee designates any matter he desires forwarded from that omitted by appellant, and the record is set for review before the appellate court. If either party then finds “the transcript or record does not truly or fully disclose what transpired in the trial court,” the parties move before “the trial court” to file a “supplemental record” for correcting the record. OCGA § 5-6-41 (f); Epps, supra; Smith, supra.

What happens if a party makes an “error?” The Code, in OCGA § 5-6-48 (b) says that “[n]o appeal shall be dismissed . . . nor shall consideration of any enumerated error be refused, except” for three stated reasons. This section also provides that no appeal shall be “dismissed” for failure to file the transcript within the allotted time except after a hearing in the trial court for unreasonable and inexcusable delay. Subsection (d) relates to “necessary amendments . . . [by] the trial court to make corrections in the record or transcript or certify what transpired below which does not appear from the record on appeal, [the appellate court may] require that additional portions of the record or transcript of proceedings be sent up, or require that a complete transcript of evidence and proceedings be prepared and sent up ... so that the appellate court can and will pass upon the appeal and not dismiss it.” (Emphasis supplied.) Two stated purposes for this subsection are clear: (1) it is intended to he utilized “to make corrections in the record or transcript. . . [of] what transpired below which does not appear from the record,” and (2) the corrections are allowed “so that the appellate court can and will pass upon the appeal and not dismiss it.” The present motion by appellant to order the trial court to send up the entire transcript is not to “make corrections” nor does it supplement any segment of the transcript presently on file in this court. Further, this subsection provides that “[i]f an error appears in the notice of appeal, the court shall allow the notice of appeal to be amended at any time prior to judgment ... so that the appellate court can and will pass upon the appeal and not dismiss it.” First, there was no “error” in the notice of appeal. Counsel may have made an “error” in judgment when it was affirmatively decided and stated that a transcript would not be included, but this was not a legally correctable “error” as a matter of discretion or law. Secondly, even if the notice had not been amended, the appeal would not have been dismissed and the enumerated errors would have been considered by this court.

2. Our Supreme Court has two decisions which are applicable to the issue under consideration. “ ‘The appellants [have] a choice as to whether or not they would file a transcript of the evidence, and the failure to file such a transcript will not result in a dismissal of the appeal, but no questions can be decided which require a consideration of the evidence.’ ” Aviation Electronics v. U. S. Energy &c. Systems, 242 Ga. 224 (248 SE2d 610); accord Steadham v. State of Ga., 224 Ga. 78, 80 (159 SE2d 397). In the case at bar, appellant had a choice, and affirmatively decided not to include the transcript. The appellee had a choice to include the transcript but declined. An appellate court should not assist either party on an appeal. An appellee has the right to have the appeal decided on the record as designated by the appellant, absent error of law. There was no error of law. Appellant desires to change her mind, to perfect her appeal. Should this court assist an appellant at the expense of the appellee, as in the instant appeal, where there is no legal basis?

The Supreme Court had this issue before them in Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) in which they held “it is well settled that, on appeal, the burden is on the appellant to establish error . . .’’on the record before us, and appellant there “chose to omit this transcript from the record on appeal. Since appellant has failed to meet his burden of showing error, the judgment of the trial court must be affirmed.” Id. The court reasoned that their “position is bolstered by Code Ann. § 6-805 (c) [now OCGA § 5-6-41 (c)] which provides in pertinent part: ‘(W)here an appeal [is] taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared. . . .’ Thus, where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Emphasis omitted.) Id. More importantly to the issue now before this court, it was found that “Code Ann. § 6-809 (b) [now OCGA § 5-6-48 (c) and (d)] does not, in our view, lead to a different result. The statute is concerned with dismissals of appeals. Code Ann. § 6-809 (b) [now OCGA § 5-6-48 (c) and (d)] does not prohibit an affirmance on the ground that the appellant failed to present the appellate court with a record sufficient to enable it to determine whether the trial court has committed reversible error. [Cit.] Clearly it is not the function of the appellate court to prosecute an appeal on appellant’s behalf.” Id. at 464-465. This holding is contrary to the majority, and if there is any doubt, Brown also held that to the extent “Interstate Financial Corp. v. Appel, 233 Ga. 649 (212 SE2d 821) (1975) conflicts] with the views expressed herein, [it] is overruled.” Id. at 465. Appel held: “We think that this statutory language [from OCGA § 5-6-48 (c) and (d)] means that our appellate courts shall pass upon the merits of an appeal from a final judgment on the record before it, and if the record before it is insufficient to pass upon the merits, the appellate court should require the record to be supplemented if the necessary additions are available in the trial court.” 233 Ga. at 650-651. Hence, the procedure used in the majority opinion here is the same as Appel, which was expressly overruled in Brown, supra.

3. I am concerned over the results which the majority opinion portends for future criminal appeals to this court. The majority has refused to recognize the binding nature of OCGA § 5-6-37 which directs that “the notice [of appeal] shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal.” The appellant made her election and chose not to include a transcript. She has changed her mind, not once — but twice, and the majority finds this permissible. I have two concerns: (a) Does an appellee have any right to have an appeal decided on the record forwarded by the appellant, or any change in the record to be made strictly in conformance with the Code? Apparently not, for the dissent raises these issues and the majority has not found it persuasive. (b) How many errors of law by an appellant should an appellate court countenance, and how many times should an appellate court permit an appellant to change her mind, so that an appeal can be perfected?

In the present appeal, appellant has made at least three errors of law, and has had four chances to perfect her appeal. The three errors of law were: (1) There was no compliance with OCGA § 5-6-37 in designating whether a transcript would be filed. (2) Appellant attempted to cure her first error by requesting this Court to let her “adopt” someone else’s record of trial as her own. (3) Next the appellant requested this Court to permit her to “amend” her notice of appeal, even though the statute permits such amendment only “[i]f an error appears in the notice of appeal. . . .” OCGA § 5-6-48 (d). There is no error in the notice of appeal.

The four chances to perfect appellant’s appeal, sanctioned by the majority are: (1) Appellant chose not to include a transcript of her trial in the record forwarded on appeal. Prior to this case, it was the law that “ ‘(W)here the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.’ ” Acker v. Jenkins, 178 Ga. App. 393, 394 (343 SE2d 160); accord Brown v. Frachiseur, supra at 464; James v. Housing Auth. of Atlanta, 233 Ga. 447, 448 (211 SE2d 738); Beasley v. Lamb, 227 Ga. 266 (2) (180 SE2d 240). (2) Appellant requested this court to permit her to “adopt” the record of another trial as the record for her trial, and this was refused. (3) Appellant requested permission to amend her notice of appeal, and the special concurrence would permit such amendment even though the only basis for amendment is error, and there was no error. (4) Appellant requested the court to order the transcript to be sent up, and finally found a method to perfect the appeal, which the majority finds unobjectionable. I question whether the majority holding violates the orderly procedure for criminal appeals set forth by our Code.

The majority holding will permit a criminal appellant to ignore OCGA § 5-6-37, for we will permit him or her to change his or her mind at a later date. In this connection, we must comply with State v. Pike, 253 Ga. 304 (320 SE2d 355), which the special concurrence finds in conflict with Brown. Pike holds that OCGA § 5-6-48 permits “supplementation” of the transcript (but in our appeal there is no transcript to supplement), and that such “supplementation” may be initiated “‘[a]t any stage of the proceedings [in the appellate court], either before or after argument. . . .’” Id. at 306. Hence, in future criminal appeals an appellant has the right to file the entire transcript or request this court to order it be sent up, at any time prior to our decision. This new appellate procedure may solve the issue involved in this appeal, but I sense the opening of an appellate “Pandora’s Box.”

I respectfully dissent. I am authorized to state that Presiding Judge Deen joins (dubitante) in this dissent.

Decided July 13, 1988.

Howard J. Manchel, for appellant.

C. Andrew Fuller, District Attorney, Michael J. Bowers, Attorney General, George P. Schingler, Senior Assistant Attorney General, for appellee.


author:
Birdsong, Chief Judge.
      Beasley, Judge,

text:
    76449.
    OLLER v. THE STATE.
    (371 SE2d 455)
   Birdsong, Chief Judge.

Appellant was convicted of one count of child molestation and sentenced to ten years confinement. Held:

1. The State has filed a motion to dismiss this appeal on the grounds that the notice of appeal was filed late. Appellant is an indigent defendant. He was sentenced and advised of his right to appeal on April 8, 1987, and this judgment was filed on April 9, 1987. Pursuant to the procedural provisions of OCGA § 5-6-38 (a), appellant was required to file his notice of appeal within 30 days from the date of the appealable decision or judgment complained of. However, as May 9, 1987 fell on a Saturday, the filing time was extended by law to Monday, May 11, 1987. See, e.g., OCGA § 1-3-1 (d) (3); Grant v. State, 157 Ga. App. 390 (278 SE2d 53). On May 5, 1987, appellant who was then incarcerated in jail signed a letter, addressed to the trial judge, which although inartfully worded, clearly expressed his desire to appeal his criminal conviction. This letter was received on May 11, 1987, by the trial judge who filed it in the Office of the Clerk of Courts on the next day. First appellate counsel for the appellant was notified of her appointment on or about July 26, 1987. A formal notice of appeal was filed on August 5, 1987. On September 22, 1987, appellant filed a motion for out-of-time appeal, and a hearing on the motion was held on October 2, 1987. At the hearing the trial judge and appellant’s counsel inserted into the record the chronological chain of events known to them regarding the filing of appellant’s appeal. The trial judge observed that the appellant had dated his request for appeal within the 30-day time period, but that the letter had not reached the trial judge until after the period expired. The judge found this mailing delay to be inexplicable, but concluded that he was “not inclined” to charge the delay against the appellant. After considering the known chain of events and appellant’s letter, the trial judge ordered that the appellant would be permitted to continue with his out-of-time appeal.

“The timely filing of a notice of appeal in accordance with the statutory requirement is essential to confer jurisdiction upon an appellate court.” Mitchell v. State, 157 Ga. App. 181 (1) (276 SE2d 864). However, the statutory time requirement of OCGA § 5-6-38 is to be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as specifically referred to and authorized by applicable statute. OCGA § 5-6-30. Further, it is sufficient if the provisions of OCGA § 5-6-38 are substantially complied with in the notification of appeal process. OCGA § 1-3-1 (c).

As the trial judge concluded that any delay in forwarding appellant’s letter requesting appeal would not be attributable to the fault of the indigent appellant, and as there exists no reason for this court to reverse this finding of the trial court, we are satisfied that appellant’s letter would have reached the trial judge before expiration of the statutory appeal period but for the fault of some person or agency other than appellant. In Douglas v. California, 372 U. S. 353, 355-358 (83 SC 814, 9 LE2d 811), the United States Supreme Court held that an indigent accused who desired to appeal was entitled to the assistance of counsel on appeal. This constitutional requirement comprehends that effective assistance of counsel will be timely provided. See generally Evitts v. Lucey, 469 U. S. 387, 396 (105 SC 830, 83 LE2d 821); see also Conway v. State, 183 Ga. App. 573 (359 SE2d 438). “This right extends to every indigent accused who indicates his desire to appeal.” McAuliffe v. Rutledge, 231 Ga. 1, 3 (200 SE2d 100). Further, we recognize that an unrepresented indigent accused, especially one who has been duly incarcerated following trial, is not always on the same footing, as the rich accused who is continuously represented by counsel of his own choosing, in drafting and submitting a notice of intent to appeal. In fact, one of the important functions of the appellate counsel is to timely “present an appeal in a form suitable for appellate consideration on the merits.” Evitts, supra at 393. Nevertheless, “[w]here the record shows that a criminal defendant voluntarily elects to forego a timely appeal following conviction, it is not error to deny his subsequent motion for an out-of-time appeal.” (Emphasis supplied.) Westberry v. State, 257 Ga. 617 (362 SE2d 346).

In view of the existing state of the law, coupled with the operative facts of this case, we are satisfied that the trial judge did not abuse his discretion in granting appellant’s motion for out-of-time appeal. Accordingly, appellee’s motion to dismiss appeal is denied.

2. Appellant asserts that the trial court “committed reversible error by permitting the introduction and . . . testimony of a crime committed by appellant in 1979 to be admitted into evidence.”

Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. “However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.” Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270). Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. See Rich v. State, 254 Ga. 11, 14 (325 SE2d 761) (evidence eleven years old not inadmissible). Rather, lapse of time is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.

We are satisfied that sufficient evidence exists to establish that appellant was in fact the perpetrator of the 1979 crimes. As in Glass v. State, 181 Ga. App. 448 (352 SE2d 642), appellant offered no evidence to contradict that he was the person named in the 1979 documents. Concordance of name alone is some evidence of identity; and, in the absence of any denial by the appellant or other proof to the contrary, this concordance of name is sufficient to show that the appellant and the individual previously convicted were one and the same person. Id. In fact, appellant judicially admitted that he was the same person as named in the record of indictment and previous convictions, and that his signature did appear thereon. Appellant, however, did vigorously contest the factual validity of the documents, claiming they did not accurately reflect the offenses to which he had pled guilty. Appellant testified that he had pled guilty only to two counts of incest, and that he had been told that the child molestation and sodomy charges would be dropped. The documents were duly certified as a true and correct copy of the original “indictment, plea and sentence” of record and of file in the clerk’s office by the deputy clerk. Deputy clerks of court are public officers and are presumed to discharge their duties properly, and their signatures speak with verity as to the same. Mash v. State, 168 Ga. App. 491 (2) (309 SE2d 673). Thus, the authenticated records of the office of the clerk of courts likewise are presumed to speak with verity. Brock v. Baker, 128 Ga. App. 397 (2) (196 SE2d 875). Accordingly, appellant’s assertions did not impair the admissibility of the documents, but merely raised an issue which required the jury to weigh duly the evidence before it.

We also are satisfied that there exists a sufficient similarity of connection between the prior independent crimes and the offenses charged. The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible. Keeler v. State, 181 Ga. App. 208 (2) (351 SE2d 731); Phelps v. State, 158 Ga. App. 219, 220 (2) (279 SE2d 513). Moreover, we are satisfied that evidence of a conviction for incest with either a natural child or stepchild of unspecified age involves a lacivious motivation or bent of mind which generally will have some probative value in determining an accused’s motivation or bent of mind in a subsequent trial for child molestation. “The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” Johnson v. State, 242 Ga. 649 (3) (250 SE2d 394). Whether that evidence is admissible, thus depends on the result obtained when applying the balancing test above discussed.

Based on the above, we find that the trial judge did not err in exercising his discretion to admit the evidence of appellant’s 1979 offenses.

3. Appellant’s second enumerated error is that the trial court “committed reversible error in overruling [appellant’s] motion for a mistrial during the closing arguments by [the] Assistant District Attorney.”

At the outset, we note that the content of the closing argument of the prosecuting attorney has not been included in the trial transcript. Normally, we would decline to review the enumeration of error on this ground. See, e.g., Brown v. State, 223 Ga. 540 (2) (156 SE2d 454) (where consideration of an enumerated error is dependent upon a transcript this court has nothing to review without such transcript); White v. State, 174 Ga. App. 531 (2) (330 SE2d 760). Further, in such circumstances, when we cannot determine what argument was presented, and on what factual basis the trial judge’s ruling was based, we normally would affirm peremptorily the trial court’s judgment. See James v. Housing Auth. of Atlanta, 233 Ga. 447, 448 (211 SE2d 738).

In the case at bar, appellant’s counsel objected to certain unrecorded remarks made during the closing argument of the prosecuting attorney, primarily on the grounds that such remarks impliedly shifted the burden of proof to appellant and moved for a mistrial. The trial judge declined to grant the mistrial motion and gave the following admonition in the presence of the jury: “I’m going to admonish counsel for the State not to make any argument that even suggests or implies in the slightest way that there is any burden on this defendant to testify or to produce any evidence or to do anything else, and there’s not any evidence in the case that I think justifies the argument that is often made concerning the production of witnesses. . . . And I’m going to admonish State’s counsel that I believe that that may very well be improper argument and . . . I’ll ask you not to refer to anything that this person could do in defense of themselves because he’s not required to do anything. The presumption of innocence is in his favor and remains with him until the jury decides otherwise.” (Emphasis supplied.) This rebuke of counsel inherently contained a strong cautionary instruction to the jury in substantial compliance with the requirements of OCGA § 17-8-75. OCGA § 1-3-1 (c).

Thereafter, the State’s argument continued until once again appellant’s counsel intervened moving for a mistrial. At this point, the jury was removed. Appellant’s counsel stated that for a second time it had been implied that the burden of proof had shifted to the appellant, notwithstanding the trial judge’s prior admonition to the prosecutor. Following the prosecutor’s denial that her remarks contained any such implication, the trial court strongly censured the prosecutor, as follows: “Well, let me tell you how the Court sees it. I felt, Ms. Benefield, that the Court made a ruling and I felt that you did not accept that ruling in any shape, form or description. I almost felt that you were mocking this Court when you continued the particular line with the vehemence that you did; that you were unable to accept the ruling of this Court in good nature and in good faith, and that’s all I’m trying to do is create a level playing field. . . . But I think that you could not accept the ruling of this Court and then go on with your argument the way you had planned it, and I think that you came — you are so close and the Appellate Court may say that your argument was improper. . . . [T]he Court ruled . . . that the argument you made implied a shifting of burden. Now you didn’t accept that. . . . And I want to tell you that I really and truly don’t understand the attitude that you went back to your argument. I felt mocked. I felt disregarded. I felt disrespect, Ms. Benefield, and frankly this is not the first time. . . . I’ve felt it a great deal that you didn’t respect the ruling that this Court made. And I really regret that. I really deplore that. . . . I’m not going to be mocked in this courtroom.” (Emphasis supplied.) Thereafter, the trial judge overruled the second motion for mistrial and the jury was recalled.

Trial continued without any further cautionary instructions or counsel rebuffs, concerning this matter, being given to the jury. Subsequently, the trial judge expressly charged the jury both regarding the appellant’s presumption of innocence and the State’s burden of proof. Following the charge, appellant’s counsel renewed all of its motions, including its motions for mistrial, but did not request any further cautionary instructions be given regarding the State’s improper argument.

“The refusal to grant a mistrial based on alleged improper remarks of the prosecutor is within the discretion of the trial court. . . and we will not interfere with the decision on appeal unless there is manifest abuse.” Harrell v. State, 253 Ga. 474 (4) (321 SE2d 739). Considering the state of the record and the totality of the circumstances, we are satisfied that the trial judge did not abuse his discretion in denying appellant’s motions for mistrial. Andrews v. State, 254 Ga. 498 (2) (330 SE2d 873).

4. Appellant’s final enumeration of error is that the trial court “committed reversible error when, after completing its charges to the jury, it did not attempt to erase improper comments made during State’s closing argument from the minds of jurors by giving curative instruction as set forth in OCGA § 17-8-75.” Appellant’s counsel at trial did not request any specific curative instructions either after both instances of alleged prosecutorial improper argument or after the trial judge completed his charge. See generally Hall v. State, 180 Ga. App. 881 (3) (350 SE2d 801). A motion for a mistrial is not per se the equivalent of a specific request for a curative instruction to the jury. In fact, the party moving for a mistrial does not normally seek or want a cautionary instruction. If following a denial of a mistrial motion a party wishes the jury to be so instructed, it is in their best interest specifically to request so. This court has held that “if the trial court is not requested to take further curative action [following an objection to repeated improper remarks by the prosecutor], this failure to act cannot be addressed on appeal as error, although the original improper statement may be examined for reversible error.” Miles v. State, 183 Ga. App. 346 (2) (358 SE2d 904).

We have already determined that the denial of the mistrial motion was not a manifest abuse of the trial judge’s discretion. We are satisfied that in the absence of specific request made for an additional rebuking cautionary instruction, that it was not error for the trial judge to refrain from giving a cautionary instruction sua sponte, particularly in view of the original explicit rebuking instruction given in the jury’s presence regarding apparently the same type of improper argument. See Foshee v. State, 256 Ga. 555 (1) (350 SE2d 416).

Moreover, assuming arguendo that the argument of the prosecutor did impliedly assert that the burden of proof had been shifted, we are satisfied beyond a reasonable doubt, that in view of the state of the competent evidence of record, the original explicit rebuking instruction and the charge to the jury, this error was harmless. See generally Smith v. State, 182 Ga. App. 623 (1) (356 SE2d 702) (for an error of constitutional magnitude the test for harmless error is that the “error [is] harmless beyond a reasonable doubt in light of the overwhelming evidence of . . . guilt”).

We hasten to add that our holding today is not to be taken as an implied condonation of the prosecutor’s conduct for we consider the findings of the trial judge that counsel’s continued conduct was grounded on an intentional disregard of the judge’s ruling to be most serious.

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 2, 3, and 4 but not in Division 1. This case illustrates the confusion regarding appeals in criminal cases where the simple mechanism of the form notice is not filed with the clerk within 30 days as provided by OCGA § 5-6-38 (a), and other attempts at appeal are made. The basis upon which this court has jurisdiction of this appeal is the defendant’s letter of May 5 to the trial judge.

At the conclusion of the sentencing, the trial court advised defendant in the presence of his appointed counsel that he had a right to appeal if he wished, with counsel to be appointed if defendant could not afford one. The court also advised defendant of the right to sentence review. Then the court stated: “Any appeal that you file or any request for sentence review must be filed within thirty days from today. Do you understand this time limitation?” Defendant responded that he did.

There is no explanation of why his trial counsel did not file an ordinary notice of appeal. It would be incumbent upon him to do so, after ascertaining defendant’s desires, rather than leave especially an incarcerated defendant stranded so that such defendant has to fashion and file a notice of appeal and seek the appointment of appellate counsel by himself. To leave such action to appellate counsel creates an impractical situation, for the prisoner would have to initiate a request for further counsel early within the thirty days in order to allow appointment of counsel and his subsequent filing of the notice.

The trial court apparently considered the prisoner’s letter as a notice of appeal because it filed it and appointed new counsel to represent him. It was the new counsel who about ten days after appointment filed a “Motion for Out of Time Appeal.” The court heard from new counsel and the state’s trial attorney. Neither defendant nor his trial attorney were present at the hearing, so it is unknown whether defendant even conveyed to his attorney that he wished to appeal. The court expressed that it did not know if it had discretion, but if it did, it granted the motion. From the court’s explanation, it appears that it did so because of the receipt of defendant’s letter within the time for filing a notice of appeal.

Defendant’s pro se notification to the court of his desire to appeal substantially fulfilled the requirements of a notice under OCGA § 5-6-37 in that the essentials were either set out or easily ascertainable and the deviations were excusable because it was filed by an incarcerated indigent defendant. Although there was no certificate of service, the state does not claim that it was harmed by the delay in its being informed of the appeal. Besides, a substantially complying notice may be amended, Blackwell v. Cantrell, 169 Ga. App. 795 (1) (315 SE2d 29) (1984), which office the notice later filed by new counsel served.

Decided July 13, 1988.

Mary S. Feeney, Gloria D. Reed, for appellant.

Robert E. Keller, District Attorney, Debra Benefield, Assistant District Attorney, for appellee.

The defendant’s notification was filed with the clerk, who indexed it as a Notice of Appeal, one day late. This was attributable to an unexplained delay in the judge’s receipt of the letter six days after it was written from a nearby place of incarceration, which the trial judge considered material in determining timeliness, and to his having the notification one day before filing it. The judge may permit papers to be filed with him. OCGA § 9-11-5 (e); see Hannula v. Ramey, 177 Ga. App. 512, 513 (1) (339 SE2d 735) (1986). Although the judge did not note the date on the document, he established such in the record.

Since the notice clearly would have been timely had the judge written on it the date of filing or submitted it to the clerk for filing the same day as it was received, it should be regarded as timely within the circumstances of this case.


author: Birdsong, Chief Judge.

text:
    74759.
    SAVAGE v. FLAGLER COMPANY et al.
    (372 SE2d 307)
    Decided July 14, 1988.

      Mike Treadaway, Anthony J. McGinley, for appellant.

      Michael J. Goldman, Lisa H. Ihns, for appellees.

      Jonathan M. Engram, amicus curiae.
   Birdsong, Chief Judge.

Our judgment in Savage v. Flagler Co., 185 Ga. App. 334 (364 SE2d 52), has been affirmed in part and reversed in part by the Supreme Court of Georgia on certiorari. Flagler Co. v. Savage, 258 Ga. 335 (368 SE2d 504). In accordance with the opinion of the Supreme Court, our judgment is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed in part and reversed in part.

Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Pope, Benham, and Beasley, JJ, concur.


author: Beasley, Judge. Birdsong, Chief Judge,

text:
    76122.
    THE STATE v. HAWKINS.
    (371 SE2d 668)
   Beasley, Judge.

The State appeals the sustaining of defendant’s motion to suppress in a case in which the defendant was indicted for possession of marijuana in violation of the Controlled Substances Act. OCGA § 16-13-30.

The charge against defendant resulted from a search, pursuant to a warrant, of Roy Hyde’s home. The warrant was based upon the affidavit of a GBI agent, relying upon a confidential informant who had furnished correct information regarding drugs five times within the previous four years. The informant had seen methamphetamine which was packaged for resale and was sold to other individuals at Hyde’s home. Based upon the proof offered that drug transactions were taking place in Hyde’s home, the warrant issued with a “no knock” provision for reasons of police safety and to avert drugs destruction or concealment. It further provided that “other persons” might be searched without naming or otherwise describing them. The written reason given in the affidavit was the information that drug sales were being transacted there, and at the motion hearing, the officer further stated that the main purpose of frisking the persons present before searching the premises is “[s] imply to protect the officers that (sic) are executing the warrant.”

Defendant and several other men were present in the living room of Hyde’s residence when the officers entered it. A GBI agent was in charge of the operation and gave instructions for a pat-down of all individuals present, before the premises were searched, in order to insure the absence of weapons in the possession of any of them and to prevent the destruction of evidence. A sheriff’s investigator testified that, in performing a pat-down search of defendant, he noticed “a springy type substance” in defendant’s pocket which aroused his suspicion because he had felt marijuana “through pants pockets before.” The officer retrieved a small plastic bag containing a substance later identified as marijuana. In response to questioning, he stated that defendant took no action indicative of either having a weapon or of concealing contraband before he started the pat-down.

Defendant moved to suppress the fruits of the search as unauthorized by the Fourth and Fourteenth Amendments “and the Constitution of the State of Georgia.” He contended that, because he was merely a visitor in the house and was not named in the warrant, the search was unreasonable in that there was absent an independent articulable basis amounting to probable cause. Since defendant never addressed the state constitutional ground, below or here, we do not consider it. State v. Camp, 175 Ga. App. 591, 593 (1) (333 SE2d 896) (1985). His position was and is that OCGA § 17-5-28, construed so as to conform to the Fourth and Fourteenth Amendments, proscribed this search and seizure. The State argues that the federal standards were met in the application of the code’s authority here. These two conflicting views of the federal constitutional requirement form the issue.

OCGA § 17-5-28 provides that the officer executing a search warrant “may reasonably detain or search any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, articles or things particularly described in the search warrant.” The State relies on both of the stated purposes.

1. As to the disposal or concealment of drugs:

Willis v. State, 122 Ga. App. 455 (177 SE2d 487) (1970), held: “On a warrant for the search of a designated apartment, its tenants, and others present who may reasonably be involved in the use, possession and sale of illicit drugs, based on an affidavit showing that the premises have been under surveillance and frequented by known drug users together with other information concerning the sale of drugs on the premises, it is not unreasonable to search persons found in a room with the tenants at the time of the search to whom it would have been possible for the persons named in the warrant to pass on the evidence for the purpose of concealment, since a thorough search of the premises would otherwise be impossible.” See Jackson v. State, 129 Ga. App. 901, 905 (1) (201 SE2d 816) (1973), which permitted the search of “other persons” when so designated in the warrant.

In cases where searches have been approved, there has been recognition of the limitation imposed by law and it was determined that one of the two statutory grounds was present so that the search was within the scope of the warrant. See Campbell v. State, 139 Ga. App. 389, 390 (2-4) (228 SE2d 309) (1976), where there was sufficient evidence to support justification under ground two, disposal of evidence; State v. Shope, 147 Ga. App. 119 (248 SE2d 188) (1978), which permitted the search of “other persons” where a purse was found “ ‘stuck down in a chair like it had been pushed away.’ ” See also Gumina v. State, 166 Ga. App. 592, 595 (305 SE2d 37) (1983), and Morris v. State, 170 Ga. App. 302, 303 (1) (316 SE2d 860) (1984).

Two recent opinions by this court have repeated the theme pronounced by Willis, supra. In Clark v. State, 184 Ga. App. 380, 382 (3) (361 SE2d 682) (1987), the proof offered to the magistrate showed a named individual was “selling, storing and concealing” contraband at the described location. A search of a visitor for the purpose of preventing disposal or concealment of the contraband was authorized. Jenkins v. State, 184 Ga. App. 844, 846 (363 SE2d 35) (1987), involved a residence where drug activity and transactions were taking place and a warrant which authorized the search of “other persons.” Relying upon Willis and Clark, it was held that a search of a visitor not named in the warrant was not unreasonable under the circumstances presented to the officer when the warrant was executed.

Execution of a warrant occurs in a dynamic situation, a fact contemplated by the authority to search. In addition, it is executed after the events which gave it rise occurred and at a time when additional facts are introduced into the picture. This, too, is contemplated by the warrant. To search other persons under subsection two, there must be a nexus between what the officers are authorized to search for, based on the criminal activity which they had probable cause to believe was and/or still is occurring and which prompted the warrant, the nature of the evidence sought, the environment in which the search is authorized, and the person searched. There must be a connection between that person and the activity which logically leads to a belief that the person is in possession of a targeted item. In the words of Willis as quoted and relied on in Jenkins, supra at 846: the person searched must at that time be one “who might reasonably be involved in the crime. . .

What the code and the constitution prohibit when there is a warrant, is a general search. It must be confined to the legitimate purpose. Mindful of the circumscription, we conclude that the officer was authorized under the circumstances to conduct the search of Hawkins for items which were the stated objects in the search warrant. Jenkins, supra; Clark, supra; Willis, supra.

2. As to the safety of the officers:

Were the search deemed not authorized under the principle stated in subdivision two of the code section, it was permitted by the authority to search for weapons as a precaution for the protection of the officers from harm, as permitted by subdivision one. In order to carry out their duty to search the residence, the officer was authorized to assume that he and his colleagues could not be harmed through use of a weapon possessed by one of the occupants. See the discussion of this basis in Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1982).

3. Following through on this alternative basis, during the search for weapons probable cause to search for contraband arose, because of what was detected. Thus the further search of Hawkins’ pocket was also authorized, if not by the warrant as limited by OCGA § 17-5-28, then by the exigent circumstances which would permit a warrantless search of this person unnamed in the warrant for the premises.

Judgment reversed. Banke, P. J., concurs.

Birdsong, C. J., concurs in the judgment only.

Birdsong, Chief Judge,

concurring in judgment only.

I concur with portions of the majority opinion and with the judgment, but I cannot concur with all that is held in Division 1. Analysis of cases cited and of the wording used by the majority in stating what they held, leads me to believe that the majority espouses a search of “other persons” on the premises of a drug dealer without compliance with OCGA § 17-5-28.

Campbell v. State, 139 Ga. App. 389 (228 SE2d 309), cited by the majority, states the general law in Georgia: “With particular regard to the ‘other persons’ clause in this warrant, we note that this language gives police no authority to search persons other than [the specific person named in the warrant] unless such search falls within the ambit of Code Ann. § 27-309 [now OCGA § 17-5-28]. Language identical to that contained in this warrant was considered in our opinion, issued this month, in Smith v. State, 138 [sic] Ga. App. 129, wherein we stated that [OCGA § 17-5-28] ‘describes the maximum extent to which the particularity of description required by the Fourth Amendment may be encroached upon by the practical necessities of the search environment. [Cits.] Thus, if defendant’s search is to be upheld on the basis of the warrant, the state must demonstrate that the officer acted under either of the two justifications provided by [OCGA § 17-5-28].’ See also Wallace v. State, 131 Ga. App. 204 (205 SE2d 523).

“[OCGA § 17-5-28] allows a very limited search of persons present on the premises at the time of the search to look only for weapons or for the items particularly described in the warrant. . . .

“In conjunction with Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), this right is limited to a pat-down of the person’s outer clothing.” Id. at 390-391. This court phrased the general rule very clearly and very succinctly in Wyatt v. State, 151 Ga. App. 207, 208 (259 SE2d 199): “ ‘The courts of this state have often held that searches of persons not named in a search warrant but found on the premises to be searched are illegal absent independent justification for a personal search.’ ”

One further reason for my failure to follow the majority is that contained in Ybarra v. Illinois, 444 U. S. 85, 86 (100 SC 338, 62 LE2d 238). Illinois has an “other persons” statute almost identical to Georgia’s statute. The Supreme Court held: “The Fourth and Fourteenth Amendments will not be construed to permit evidence searches of persons who, at the commencement of the search, are on ‘compact’ premises subject to a search warrant, even where the police have a ‘reasonable belief that such persons ‘are connected with’ drug trafficking and ‘may be concealing or carrying away the contraband.’ ”

Georgia law is in agreement that “ ‘[a] person does not lose the protection of the Fourth Amendment by entering the apartment of another. [Cits.] Neither do a person’s effects.’ ” Hayes v. State, 141 Ga. App. 706, 708 (234 SE2d 360); Campbell, supra at 615. The law in Georgia on this point is well settled, that searches of “other persons” on premises being searched under a warrant are illegal, absent independent justification for a search of the person. Bundy v. State, 168 Ga. App. 90 (308 SE2d 213); Hawkins v. State, 165 Ga. App. 278 (300 SE2d 224); Childers v. State, 158 Ga. App. 613 (281 SE2d 349); Wyatt v. State, supra at 208; Hayes v. State, supra at 708; Smith v. State, 139 Ga. App. 129, 130 (1) (227 SE2d 911); Brown v. State, 133 Ga. App. 500 (211 SE2d 438).

Decided July 14, 1988.

Roger G. Queen, District Attorney, for appellant.

George J. Thomas II, for appellees.

Accordingly, I concur in judgment only as to Division 1, and concur specially as to Divisions 2 and 3.


author: Banke, Presiding Judge.

text:
    76839.
    DeSOTO FALLS, INC. et al. v. BROWN et al.
    (371 SE2d 462)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case sustained a compensable injury to his back on November 28,1983, while attempting to stop the fall of an 800-pound rack during the course of his employment as a spinning frame operator for DeSoto Falls, Inc. He was subsequently paid disability benefits by DeSoto Falls and was given a “light duty” job assignment as a quality control inspector. He continued to work for DeSoto Falls in that capacity for approximately the next two years, although he continued to experience back pain. On April 29, 1986, he secured the services of an attorney and requested a change-in-condition hearing. On or about June 23, 1986, before such a hearing could be held, the plant where the claimant worked was purchased from DeSoto Falls by Douglasville Spinners, Inc. For several weeks following this change in ownership, the claimant continued working at the plant as a quality control inspector. However, on July 20,1986, Douglasville Spinners increased the length of the work shifts from eight hours to twelve hours, and the claimant was thereafter unable to work an entire shift due to his back injury. Douglasville Spinners consequently terminated his employment on July 30, 1986.

The board determined that the claimant had suffered a change in condition as of the date of his termination and ordered DeSoto Falls both to begin paying him income benefits as of that date and to compensate him for certain time he had lost from work prior to the sale of the plant to Douglasville Spinners. In addition, DeSoto Falls was ordered to pay the claimant’s attorney fees. We granted a discretionary appeal from an order of the superior court affirming this award in order to address the contention of DeSoto Falls and its insurance carrier that, pursuant to this court’s decisions in Beers Constr. Co. v. Stephens, 162 Ga. App. 87 (2) (290 SE2d 181) (1982), and Certain v. U. S. Fidelity &c. Co., 153 Ga. App. 571 (266 SE2d 263) (1980), the board should have treated the claimant’s current disability as the product of a fictitious “new accident” attributable to his employment with Douglasville Spinners, rather than as the product of a change in condition attributable to his original injury. Held:

1. Although the claimant in Certain had been assigned “light work duties” by his original employer subsequent to his initial injury, he later went to work for a new employer performing “the same type strenuous work which he had been medically forbidden to do at the first employer’s, and from which he had been relieved to perform light work duties.” Id. 153 Ga. App. at 572. After five months in the new job, his condition deteriorated to the point that he became totally disabled. This court held that because of the “new circumstances” which characterized his work for the new employer, the claimant’s disability must be considered the product of a “new accident” rather than a change in condition.

The claimant in Beers had returned to normal work duties with the original employer after suffering a back injury but had been laid off several months later. He subsequently found another job which required him to work exceedingly long hours at tasks involving repeated bending and lifting. After seven months in the new job, he was no longer able to work, again due to a back injury. However, the administrative law judge determined that this new injury was “in a different area of the spine from the previous injuries.” This court reversed an award against the first employer, holding that the claimant’s disability must be presumed, under such circumstances, to be the product of a “new accident” arising from his work with the new employer rather than the product of a change-in-condition attributable to his original injury. See generally Central State Hosp. v. James, 147 Ga. App. 308 (248 SE2d 678) (1978); Hartford Accident &c. Co. v. Troglin, 148 Ga. App. 715 (252 SE2d 213) (1979).

The case before us is distinguishable from Certain and Beers in that the condition of the claimant in the present case never stabilized following his initial back injury but continued to worsen to the point where, some two months prior to the sale of the plant to the new owner, he had already requested a change-in-condition hearing. While it is true that the immediate reason for the termination of his employment by the new owner was his inability to complete the extended, 12-hour work shifts which the new employer had implemerited, that inability obviously was not caused by the work which he had been performing for the new owner, which was identical to the work he had been performing for DeSoto Falls prior to the sale of the plant, for it was shown he was never able to complete an entire shift after the change went into effect. It can hardly be inferred under such circumstances that the lengthening of the work shifts precipitated the physical condition which resulted in his disability. We conclude that the evidence in the present case “clearly and undisputedly shows that the claimant’s condition was not affected by . . . more strenuous, aggravating, supra normal work at the second employer but was undisputedly related only to the previous injury,” Beers, supra, 162 Ga. App. at 91, with the result that the board was authorized to award benefits based on a change in condition rather than on the basis of a “new accident.”

2. The board also was authorized to assess attorney fees against DeSoto Falls and its insurer pursuant to OCGA § 34-9-108 (b) (1) for defending the claim “in whole or in part without reasonable grounds. ...” The claimant testified that upon his return to work for DeSoto Falls following his original back injury, he was notified that the rental expenses of a “TENS” unit and a traction apparatus which he had been using to relieve his back pain would no longer be covered by worker’s compensation insurance, with the result that he was forced to discontinue using these devices. He further testified that when he inquired about seeing another doctor to get relief from his pain, he was told that he could not see any more doctors. Based on this evidence and on the fact that the claimant had already requested a change-in-condition hearing prior to the sale of the plant to Douglasville Spinners, the reasonableness of the appellants’ efforts to avoid liability on the claim was certainly called into question.

We reject the appellants’ contention that reasonable grounds for defending the claim were established as a matter of law by the report of an orthopedic specialist who, upon examining the claimant at the request of the appellants’ counsel approximately a month after the termination of his employment, found “no objective medical basis which would prohibit [the claimant’s] return to normal work activities based on my physical exam and radiographic exam.” (Emphasis supplied.) It is apparent that this report did not take into account the results of a “CT scan” which had been performed on the claimant some two years earlier and had revealed the bulging of disc material at multiple locations in his spine. In the context of all the medical evidence in the case and of the claimant’s testimony regarding the extent and nature of his pain and the efforts he had made to obtain relief from it without ceasing work, the board was authorized to find that the appellants had failed to put forth a reasonable defense to the claim. See generally American Motorist Ins. Co. v. Corbett, 144 Ga. App. 845, 847 (242 SE2d 748) (1978).

Decided July 14, 1988.

Daniel C. Kniffen, for appellants.

Charles T. Bass, H. Durance Lowendick, Susan V. Sommers, for appellees.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


text:
    76926.
    THACKER v. WORLD CARPETS, INC.
    (371 SE2d 464)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case sustained an on-the-job back injury on July 11, 1985, and has not resumed working since. The board awarded her disability benefits; however, that award was ultimately reversed by the superior court based on a determination that her disability was not caused by the injury she sustained at work but by a subsequent injury. The case is now before us pursuant to our grant of the claimant’s application for a discretionary appeal.

The board initially awarded the claimant income benefits for the period from July 11, 1985, through February 11, 1986, and also granted her request for attorney fees. The superior court reversed the award of attorney fees outright and ordered the board to reconsider the award of income benefits, based on certain perceived discrepancies between the evidence of record and the board’s findings of fact. In particular, the court found the decision to terminate the claimant’s benefits on February 11, 1986, to be “baffling,” no finding having been made either by the board or by the administrative law judge that her disability had ceased on that date. Upon remand, the board deleted the award of attorney fees while reaffirming the claimant’s entitlement to income benefits, this time awarding her such benefits on a continuing basis from July 11, 1985, “until altered or terminated according to law.” However, the superior court reversed this award for lack of evidence, concluding from the testimony of the emergency room physician who had seen the claimant immediately following her initial accident that the injury from which she was suffering on that date was different from the disabling low back injury from which she was suffering some two weeks later, on July 24, 1985, when the physician again treated her. Held:

1. “The superior court, when sitting as an appellate body, is ordinarily bound by the ‘any evidence’ standard of review. (Cits.) In this posture, the superior court is not authorized to substitute its judgment for that of the Board, (cits.) and where there is conflicting evidence, then the resolution of discrepancies and the determination of witnesses’ credibility is ordinarily for the ALJ or the Board as finders of fact.” Carroll v. Dan River Mills, 169 Ga. App. 558, 562 (313 SE2d 741) (1984).

Decided July 14, 1988.

James I. Parker, William L. Lundy, Jr., for appellant.

Warren N. Coppedge, Jr., Joseph T. Leman, for appellee.

The emergency room physician, testifying with reference to hospital reports, stated that when he treated the claimant immediately following her on-the-job injury, she was suffering from a muscle pull in the left rib cage and from pain in the flank area, whereas when he saw her on July 24, 1985, she was complaining of low back pain caused by “lifting heavy object P.T.A.” He defined the term, “P.T.A.,” as meaning “[t]hat it just happened.” It appears, however, that the notation, “P.T.A.,” was not placed on the hospital report by the emergency room physician but by a student nurse who had interviewed the claimant prior to the second visit and who testified that she interpreted the term to mean “probably within a week.” Moreover, there was evidence that on July 18, 1985, i.e., between the two emergency room visits, the claimant was treated by a company physician for “spasm in the left lower paraspinal muscles” and “low back strain.” Thus, the testimony of the emergency room physician does not conclusively establish that the low back pain which the claimant was experiencing on July 24, 1985, stemmed from an injury other than the one she sustained at work on July 11, 1985. It follows that the trial court erred in reversing the board’s award of income benefits.

2. We do not reach the appellant’s second enumeration of error, as it was withdrawn by counsel during oral arguments in the case.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Beasley, J., concur.


author: McMurray, Presiding Judge. Pope, Judge,

text:
    75875.
    BAGGS v. CHATHAM COUNTY HOSPITAL AUTHORITY.
    (371 SE2d 653)
   McMurray, Presiding Judge.

Plaintiff brought this “rainy day” slip and fall case against the Chatham County Hospital Authority, d/b/a Memorial Medical Center. In her complaint, as amended, plaintiff alleged she sustained injuries when she slipped and fell in a puddle of water three to four feet inside the front door of the hospital (Memorial Medical Center). The liability of the hospital was predicated upon the negligent construction or negligent maintenance of the lobby entrance. Defendant answered the complaint, denying that it was liable to plaintiff for the injuries which she sustained. Following discovery, defendant moved for summary judgment.

In support of its motion for summary judgment, defendant submitted the affidavit of its hospital director of engineering and maintenance. In pertinent part, he averred: “It is not unusual for water to be tracked into the lobby ... on a rainy day. If the hospital’s Housekeeping Department is notified or is aware that water has pooled or puddled anywhere in the hospital, the procedure is to mop all floors in the hospital where water has accumulated. There is no record of any reports of water puddling in the front lobby on [the day in question] nor do I have any personal knowledge that would indicate that it did so.”

Defendant also offered the affidavit of an architect who was involved in the design of the hospital lobby. He averred that the hospital entrance was designed and constructed with the degree of care and skill ordinarily applicable to the design and construction of such buildings.

Plaintiff submitted her own affidavit in opposition to defendant’s summary judgment motion. She averred that it stopped raining for 20 or 30 minutes before she entered the hospital; that the area between the entrance and the puddle of water was dry; that she saw no evidence of water on the lobby floor until she slipped in the puddle; and that defendant’s employees were “in the immediate area where the water was located and they were in a position where they saw or should have saw [sic] the danger.” In a deposition, plaintiff made it clear that she did not see the water before she fell. With regard to the presence of defendant’s employees, plaintiff deposed that they were positioned at or near an information desk in the lobby.

Following a hearing, the trial court granted defendant’s motion for summary judgment. Plaintiff brought this appeal. Held:

1. On motion for summary judgment, “ ‘The burden is upon the moving party, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442).’ Internat. Brotherhood v. Newman, 116 Ga. App. 590, 592 (158 SE2d 298). The movant ‘has this burden even as to issues upon which the opposing party would have the trial burden. And the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.’ 6 Moore’s Federal Practice, (2d Ed.) 2853, § 56.23.” Colonial Stores v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672).

2. “[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). Thus, in order for a defendant to successfully move for summary judgment in a foreign substance slip and fall case, it must come forward with evidence tending to show that (1) it had neither actual nor constructive knowledge of the foreign substance or that (2) plaintiff had knowledge of the substance. See Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79 (363 SE2d 291); Carder v. K-Mart, 185 Ga. App. 143 (363 SE2d 593). See also Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523).

3. In the case sub judice, a genuine issue of material fact exists with regard to defendant’s actual or constructive knowledge of the water puddle. The affidavit of defendant’s hospital director of engineering and maintenance establishes that no report was made about the water puddle and that he himself did not have personal knowledge about the puddle. Do these facts tend to show that defendant did not have actual knowledge of the water puddle? We think not. The evidence shows that several of defendant’s employees were in the immediate vicinity of the puddle. The mere fact that reports were not made about the puddle or that the director of engineering and maintenance did not know about the puddle does not demonstrate that those employees did not have actual knowledge of the puddle. After all, the issue here is actual knowledge of the puddle on the part of defendant. The knowledge of one employee (the director of engineering and maintenance) is not conclusive in this regard since other employees were in the immediate vicinity of the puddle. Likewise, the absence of a report about the puddle does not demonstrate an absence of actual knowledge. See generally Favors v. Alco Mfg. Co., 186 Ga. App. 480, 483 (3) (367 SE2d 328). Compare Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga. App. 891 (318 SE2d 514), in which no employees were in the vicinity when that plaintiff slipped and fell.

Even if it can be said that defendant demonstrated a lack of actual knowledge of the water puddle, it is clear that defendant has not demonstrated an absence of constructive knowledge. “A lack of actionable constructive knowledge is normally established in such cases by evidence of compliance with reasonable inspection and/or cleaning procedures. [Cits.] No such evidence was presented in this case.” Shiver v. Singletary, supra, 747. Besides, in her affidavit, plaintiff averred that defendant’s employees were so situated that they either saw or should have seen the puddle. Given this averment, one must conclude that a genuine issue of material fact exists with regard to defendant’s constructive knowledge of the water puddle. Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79, supra; Carder v. K-Mart, 185 Ga. App. 143, supra.

4. A genuine issue of material fact also remains with regard to plaintiff’s knowledge of the water puddle. Plaintiff averred that it had stopped raining for a period of time before she entered the lobby of the hospital and that she was unaware that water accumulated in the lobby until she slipped. “Accordingly, this case is governed by Weight Watchers of Greater Atlanta v. Welborn, 165 Ga. App. 290, 291 (299 SE2d 760). In Weight Watchers of Greater Atlanta v. Welborn, supra, as was done in Telligman v. Monumental Properties, Inc., 161 Ga. App. 13 (288 SE2d 846), this court ‘rejected the argument that the equal knowledge of the parties as to weather conditions would bar the plaintiff from recovering, holding that the plaintiff would be barred only if she knew of the specific hazard which caused her fall.’ Since plaintiff averred she did not know of the water puddle, the grant of summary judgment to defendant was improper.” Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79, supra at 80. Accord Carder v. K-Mart, 185 Ga. App. 143, supra at 144.

Judgment reversed.

Deen, P. J., Banke, P. J., Carley, Benham and Beasley, JJ., concur. Birdsong, C. J., Sognier and Pope, JJ., dissent.

Pope, Judge,

dissenting.

This is a typical “rainy day” slip and fall case. In such a case, it is difficult for the plaintiff to show the premises owner had superior knowledge of the allegedly dangerous condition, which is a necessary prerequisite to recover from the owner. This is because “[i]t is common knowledge that when people enter any building in rainy conditions, moisture is tracked in and the inside of the door is likely to be wet . . . .” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (332 SE2d 304) (1985). Plaintiff argues she has met the burden of creating a genuine issue as to the hospital’s liability (1) by establishing she did not have equal knowledge of the likelihood of water at the entrance; (2) by alleging the negligent construction or maintenance of the entrance; and (3) by establishing defendant had or should have had constructive knowledge of the existence of the puddle in which she fell.

First, plaintiff argues she did not have equal knowledge of the likely existence of water on the floor of the hospital entrance, because, she claims, it stopped raining twenty to thirty minutes before she arrived at the hospital. She argues that the hospital should have had sufficient opportunity to discover and remedy any water left on the floor in this period of time. Even if the rain had ceased while plaintiff was en route to Savannah from Ludowici, this does not establish when it stopped raining in and around the hospital in Savannah. Moreover, plaintiff admits the ground and pavement outside the hospital were still wet. “Even if the rainfall had ceased completely it seems obvious that the defendant, and others in a like position, must be afforded a reasonable opportunity for mopping the water from the floor. Until such time as one who enters might reasonably expect to find the floor free of water he should expect to find water present.” Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 177 (138 SE2d 77) (1964). In Gibson, the expectation to find the floor free of water was negatived by plaintiff’s admission that the rain was still “drizzling.” Here, the expectation is negatived by plaintiff’s admission that outside conditions were still wet. The reliance of the majority opinion upon Weight Watchers of Greater Atlanta v. Welborn, 165 Ga. App. 290 (299 SE2d 760) (1983), and Telligman v. Monumental Properties, 161 Ga. App. 13 (288 SE2d 846) (1982) is misplaced, for in both those cases defendant admitted having knowledge of the existence of the hazardous condition. In those cases plaintiffs’ general knowledge of weather conditions did not bar their recovery from a defendant with knowledge of the specific hazard which caused the fall.

According to Gibson, a premises owner is not liable for the tracking in of water due to outside weather conditions “ ‘except, perhaps, in some circumstances, as where it is shown that the construction of the entranceway was inherently dangerous ....’” Id. In reliance upon Gibson, plaintiff alleged in her complaint that the lobby entrance was negligently constructed. She testified there were no wet tracks leading from the door to the puddle three to four feet inside the door where she fell. She argues this is evidence that the puddle was not caused by the tracking in of water but accumulated as a result of the faulty construction of the entrance. Plaintiff offers no evidence to explain how water would have accumulated three to four feet inside the door as a result of negligent construction. On the other hand, in support of its motion for summary judgment, defendant offered the affidavit of a licensed architect who testified he was involved in the design of the front entrance and lobby and that it was designed and constructed with that degree of care and skill ordinarily applicable to the design and construction of such buildings. He also testified that because the entrance slopes upward, it would be impossible for rain water to flow into the lobby. Where defendant produces evidence supporting the conclusion that the surface in question was not defective in any manner, and plaintiff fails to produce any evidence showing negligent design, construction, installation or maintenance, summary judgment is proper. Joyner v. Sandefur Mgt. Co., 168 Ga. App. 854 (3c) (310 SE2d 578) (1983).

Decided June 22, 1988

Rehearing denied July 15, 1988

Richard D. Phillips, for appellant.

Lee C. Mundell, Anne C. Marscher, for appellee.

Defendant presented the sworn affidavit of its director of engineering and maintenance attesting that the hospital had no notice of the existence of the puddle on which plaintiff fell. The fact that employees were positioned at various desks across the lobby from the spot where the plaintiff fell on a puddle which she described as smaller in diameter than a basketball does not establish defendant hospital had actual or constructive knowledge of the existence of the puddle. If the presence of water should have been obvious to employees stationed in another area of the entrance, it should also have been equally obvious to plaintiff who walked directly toward the puddle. See Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 SE2d 680) (1950).

In those cases cited by the majority in which this court held an issue was raised concerning the defendant’s knowledge of the hazard, some evidence other than the mere presence of defendant’s employees was presented. In Carder v. K-Mart, 185 Ga. App. 143 (363 SE2d 593) (1987), the assistant manager whose job it was to check the condition of the floor was standing five feet away from the puddle in which plaintiff fell and was heard to say just after the fall he “ ‘was afraid that this was going to happen.’ ” Id. at 144. In Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79 (363 SE2d 291) (1987), a mop and pail were standing nearby the spot where plaintiff fell and there was testimony the store employees had been mopping up rainwater all day. In Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523) (1988), the plaintiff’s testimony was consistent with the hypothesis that an employee of the grocery store was responsible for the presence of moisture allegedly on the floor where he fell. By contrast, no evidence exists in this case to contradict the sworn affidavit stating defendant had no actual knowledge of the puddle. If by their mere presence in the room defendant’s employees should have noticed the puddle, then by the same token plaintiff had equal opportunity to notice and avoid the puddle. I would affirm the grant of summary judgment to the defendant.

I am authorized to state that Judge Sognier joins in this dissent.