text:
    A98A0549, A98A0550.
    NATIONSBANK, N. A. (SOUTH) v. TUCKER; and vice versa.
    (500 SE2d 378)
   Eldridge, Judge.

These actions arose from the guaranty of a promissory note by Jewett W. Tucker, defendant-appellee and cross-appellant, and suit to collect by the holder NationsBank, N. A. (South) plaintiff-appellant and cross-appellee (“NationsBank”).

Case No. A98A0549

1. Plaintiff’s sole enumeration is that the trial court erred in granting defendant’s motion for partial directed verdict as to the issue of attorney fees. The case was tried before a jury on June 4, 1997. At the close of plaintiff’s case-in-chief, defendant made a motion for partial directed verdict as to the issue of attorney fees on the ground that the plaintiff had failed to prove notice. Although the notice of intent to seek attorney fees under OCGA § 13-1-11 was attached to the complaint, the plaintiff did not tender the complaint into evidence or a certified copy of the complaint. The plaintiff moved for leave to re-open evidence to tender the complaint. The trial court denied. the motion and granted the partial motion for directed verdict.

(a) Proof of notice in compliance with OCGA § 13-1-11 (a) (3) at trial is necessary to recover attorney fees in a suit on a note, because notice is an element of the claim. Union Commerce Leasing Corp. v. Beef N Burgundy, 155 Ga. App. 257, 262 (4) (270 SE2d 696) (1980); Carter v. Jenkins, 143 Ga. App. 42, 43 (1) (237 SE2d 440) (1977). Where the plaintiff attached the notice to the complaint, but never tendered such into evidence, the elements of the claim for attorney fees were not proved, and the trial court did not err in granting a directed verdict as to the attorney fees claim. Union Commerce, supra at 262; Carter, supra at 43.

Plaintiff contends that the trial court should have taken judicial notice of the pleadings so that the evidentiary gap would be filled; plaintiff requested on the record that the trial court take judicial notice of the pleadings, which preserved the issue for appellate review. Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 272-273 (7) (105 SE2d 465) (1958); however, the exhibit as part of the pleadings is not subject to judicial notice as to its relevancy, identity, authenticity, and content, because such issues are a matter of proof and a matter for determination by the trier of fact as to weight and credibility after admission.

The judicial notice was requested as to that exhibit to the complaint which purported to be the notice of the intent to seek attorney fees attached to the complaint. Plaintiff wanted judicial notice taken, not that a document purporting to be the notice was attached to the complaint, but that the exhibit was a sufficient notice which satisfied OCGA § 13-1-11. OCGA § 9-11-10 (c) reads: “A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes,” and controls the pleadings over an allegation. See H & R Block v. Asher, 231 Ga. 780, 781 (204 SE2d 99) (1974).

Under OCGA § 24-1-4, the trial court, when timely requested to do so, can take judicial notice of the court records in the action before the court, which includes pleadings. Brown v. C & S Nat. Bank, 245 Ga. 515, 518 (265 SE2d 791) (1980); South America Managers v. Reeves, 220 Ga. 493, 495 (140 SE2d 201) (1965); State Dept. of Revenue v. McCray , 215 Ga. 678 (113 SE2d 132) (1960)¡ A trial court cannot take judicial notice of pleadings and orders of other courts of this State; however, the trial court can take judicial notice of the records of that court in other actions between the parties or their privies. Petkas v. Grizzard, 252 Ga. 104, 105 (312 SE2d 107) (1984); Walker v. McLarty, 199 Ga. App. 460, 461 (405 SE2d 294) (1991). The trial court could take judicial notice of the pleadings and the notice as an exhibit', however, the trial court could not take judicial notice that the exhibit was admissible, relevant, identified, authenticated, or the highest and best evidence, because such issues are a matter of proof that cannot be judicially noticed. The role of judicial notice is to eliminate formal proof as to: (1) “matters of which the general public has common knowledge”; (2) “facts which are readily ascertainable by reference to some reliable source, and are beyond dispute”; and (3) “matters which are within the special province of the judge.” Green, Ga. Law of Evidence (4th ed.), § 4; see also In the Interest of S. M., 169 Ga. App. 364, 366 (312 SE2d 829) (1983); Batson-Cook Co. v. Shipley, 134 Ga. App. 210, 212 (214 SE2d 176) (1975).

In this case, the matter that plaintiff wants judicially noticed falls outside OCGA § 24-1-4. The issue is in dispute and is a matter of proof. Thus, it was proper for the trial court not to take judicial notice of this issue.

Certified copies of such pleadings would have to be tendered into evidence and received as primary evidence for the exhibit to be evidence before the court. OCGA § 24-5-31; Bell v. Cone, 208 Ga. 467 (67 SE2d 558) (1951); Commerce Prop. v. Linthicum, 209 Ga. App. 853 (1) (434 SE2d 769) (1993); Rutland v. City of Dublin, 50 Ga. App. 242 (177 SE 819) (1934); cf. Mason v. State, 197 Ga. App. 534 (398 SE2d 822) (1990); Genins v. Boyd, 166 Ga. App. 843, 844 (2) (305 SE2d 391) (1983); Moody v. Roads &c. of Appling County, 29 Ga. App. 21 (113 SE 103) (1922). When a copy of a trial court record is not tendered into evidence, testimony as to what is contained in such record is subject to a highest and best evidence objection, as well as a hearsay objection. Lipscomb v. State, 194 Ga. App. 657 (391 SE2d 773) (1990).

Judicial notice could be taken that the exhibit purported to be a notice of intent to seek attorney fees under OCGA § 13-1-11 (a) (3) and that it was filed with the court at a particular date attached to the complaint; however, judicial notice cannot be taken that the attached notice was, in fact, what it purported to be, a notice given in compliance with OCGA § 13-1-11 (a) (3).

(b) The plaintiff also contends that the defendant waived proof of the notice to seek attorney fees; however, the complaint, the pre-trial order, and the statements of defense counsel do not constitute either an admission in judicio or waiver of proof.

(c) The plaintiff also argues that the trial court abused its discretion in not granting plaintiff leave to re-open his case-in-chief to prove the notice.

The trial court has the discretion whether or not to allow the party to re-open the evidence in its case-in-chief. Williams v. Lemon, 194 Ga. App. 249, 252 (4) (390 SE2d 89) (1990); Pickelsimer v. Traditional Builders, 183 Ga. App. 709, 711 (4) (359 SE2d 719) (1987). “[Tjhis court will not reverse unless there has been an abuse of that discretion.” Pickelsimer, supra at 711; Newman v. Booker & Co., 133 Ga. App. 209 (210 SE2d 329) (1974). There was no abuse of discretion by the trial court.

Case No. A98A0550

2. The defendant’s first enumeration of error is that the trial court erred in admitting, over timely objection, unauthenticated copies of the note (plaintiff’s Exhibit 1) and the guaranty (plaintiff’s Exhibit 2).

Under OCGA § 9-11-10, plaintiff attached copies of the note and guaranty to the complaint as exhibits. Defendant had a duty to admit, deny, or state that he was unable to do either in his answer, to such exhibits as part of the pleadings under OCGA §§ 9-11-8 (b), (c), (d), (e) and 9-11-12 (a). The note and guaranty, as exhibits, were admitted in defendant’s answer, see OCGA § 9-11-8 (b) and (d), and became admissions in judicio that required no further proof. Further, NationsBank listed the note and guaranty in the pre-trial as having been admitted, which defendant did not dispute.

Such admissions in judicio were never withdrawn with leave of the court or amended. Even if such admissions in judicio were withdrawn, they remain as admissions against interest in the case. Thus, the plaintiff was entitled to rely upon the admissions contained in the answer that the copies were identified and authentic, and the admittance by the trial court was proper. See Stallings v. Britt, 204 Ga. 250 (49 SE2d 517) (1948); Spurlock v. Commercial Banking Co., 151 Ga. App. 649 (260 SE2d 912) (1979).

3. Defendant’s second enumeration of error is that the trial court erred (a) in admitting, over timely objection, hearsay evidence of the merger of Bank South and NationsBank; and (b) in predicating its grant of NationsBank’s motion for directed verdict, and its denial of the defendant’s motion for directed verdict upon such inadmissible hearsay evidence.

Capacity, or lack thereof, is a matter that must be specially pled and which raises the issue of standing. OCGA § 9-11-9 (a). The merger between NationsBank and Bank South was specifically pled in the complaint and goes to the standing to bring the suit as the successor legal entity. Under OCGA §§ 9-11-12 (b) (7) and 9-11-19, defendant was under a duty to raise any defense as to standing or assignment, and it failed to do so. Since there was a merger of the legal identities of the parties into one legal entity, then an OCGA § 9-11-19 defense was not available, because there no longer existed a “Bank South” to be an indispensable party or a real party in interest.

Testimony as to the merger of the corporate entities did not come under the hearsay rule at all. Such testimony by the bank official, who had been previously with Bank South and was now with Nations-Bank, explained the course of conduct of the plaintiff and the corporate “state of mind” after the merger in bringing the action to collect the note by NationsBank instead of by Bank South. See OCGA § 24-2- 1. Testimony regarding the merger by an officer and agent of the successor legal entity was relevant and material to explain the course of conduct and corporate intent of the successor corporation after the merger and how the official came to have custody of the records. OCGA § 24-3-2; Cook Farms v. Bostwick, 165 Ga. App. 692 (302 SE2d 574) (1983); Roberts v. Allen, 31 Ga. App. 660 (122 SE 86) (1924).

Business records made and kept in the ordinary course of business are admissible as an exception to the hearsay rule. OCGA § 24-3- 14. The custodian of such records explained how the records of one corporate entity became the records of another corporate entity through merger and in the ordinary course of business. Thus, under OCGA § 24-3-2, the custodian of records can explain the merger of the corporate entities in order to explain why he is now the custodian of the business records of the predecessor corporation and his right to hold such documents. Further, defendant testified that Bank South was bought out in 1995 and that he dealt with the successor legal entity in regard to the renewal of the note and the giving of his personal guaranty.

4. Defendant’s third enumeration of error is that the trial court erred in granting NationsBank’s motion for directed verdict.

The trial court found that there was no consideration for the workout and release agreement between the defendant, Southeast Timberlands, Inc., and NationsBank or Bank South; however, defendant contends that his not filing bankruptcy and paying a part of the amount owed on the note and guaranty was consideration for the agreement.

There was no written evidence in the form of an agreement or release to support any “release agreement.” There was only the testimony of the defendant that there was an oral agreement to release the guaranty. Defendant collateralized the loan with a deed to secure debt for (1) between 4,700 and 9,000 acres of land in Valambrosa Plantation; (2) on Fancy Hall tract; (3) different subdivision lots in Deer Run and Bryan County; and (4) his Macon residence. Defendant contended that he did not want to file bankruptcy and would have filed bankruptcy as a last resort; however, in March 1996, defendant put Southeast Timberlands in a Chapter 11 in bankruptcy court, because he could not pay debts when due.

NationsBank, as a secured creditor, retained the land and the power to foreclose even after the defendant placed Southeast Timber-lands in bankruptcy. To foreclose while under Chapter 11, Nations-Bank would have to obtain release of the property by the trustee in bankruptcy to lift the automatic stay of creditors’ legal actions against the debtor. No purported oral agreement with either Nations-Bank or Bank South stopped the defendant from, in fact, filing bankruptcy in March 1996; nor was there any written agreement by defendant which would have prevented him from, at any time, filing such bankruptcy. Certainly, not filing bankruptcy was not a valid consideration for any oral agreement to release the defendant from the guaranty under the facts and circumstances of this case.

The partial payment of a debt already owed, that was not doubtful but certain, provides no new consideration, because it is a promise to do what one is legally bound to do already. Thus, an oral agreement to release a debt without new consideration is not enforceable. OCGA § 13-3-40; Johnson v. Hinson, 188 Ga. 639 (4 SE2d 561) (1939); Wright v. Threatt, 146 Ga. 778 (92 SE 640) (1917); Jones v. Med. Arts Clinics of America, 187 Ga. App. 702 (371 SE2d 214) (1988); Tallent v. Scarratt, 51 Ga. App. 577 (181 SE 141) (1935); McCowen v. McCord, 49 Ga. App. 358 (175 SE 593) (1934).

Decided March 25, 1998.

Warlick, Tritt & Stebbins, Charles C. Stebbins III, for appellant.

Beckmann & Lewis, John S. Lewis, for appellee.

5. Defendant’s fourth enumeration of error is that the trial court erred in denying defendant’s motion to dismiss and the subsequent re-affirmance of such ruling.

A “long-term note” within the meaning of OCGA § 48-6-60 (3) is a note “when any part of the principal of the note falls due more than three years from the date of the note[.]” OCGA § 48-6-60 (4) defines a “short-term note” as a note in which “the whole of the principal of the note falls due within three years from the date of the note[.]” Here, the note was dated July 31,1994 and was due on July 31,1995. Thus, by its own terms the note sued upon in this case was a “short-term note.”

A renewal of a pre-existing note is a new note and does not become a long-term note by piecing together, in serial fashion all preexisting and subsequent notes for the purposes of OCGA § 48-6-77. See Rules & Regulations of the State of Georgia, Secretary of State, Chapter 560-11-8-.03 (4) (c); 1960-61 Op. Atty. Gen., p. 519. OCGA § 48-6-77 does not apply to the short-term note in this case. Further, OCGA § 48-6-77 does not provide protection to the debtor, but is a method to force the payment of intangible taxes when due. Guthrie v. Bank South, 195 Ga. App. 123 (393 SE2d 60) (1990); Grant v. Oakey, 108 Ga. App. 759 (134 SE2d 499) (1963). Thus, the trial court did not err in denying defendant’s motion to dismiss.

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

       Defendant had been served with the complaint and denied specifically in his answer any obligation for such attorney fees. In the pre-trial order, defendant contested the sufficiency of the notice. Thus, plaintiff was apprised by the pleadings what issues were contested and what had to be proved as part of the plaintiff’s case.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A0758.
    JOHNSON v. WEYERHAEUSER COMPANY.
    (499 SE2d 916)
   Eldridge, Judge.

We granted the discretionary appeal in this workers’ compensation case to determine whether the superior court exceeded the scope of its review in reversing the appellate division’s award of benefits.

Robin Johnson was employed as a technician in a pulpwood factory, and her job duties included unloading and cleaning out rail cars of paper. In January 1995, she injured her.neck at work, and the employer paid medical expenses for treatment of the injury until November 1995. On October 23, 1995, Johnson developed lower back pain while sweeping out a rail car and immediately reported it to her first responder. Following this injury, the employer made light duty work available to her until January 11, 1996, but not thereafter. She returned to work on August 27, 1996, but the employer sent her home because she was demonstrating a neck problem and wearing a neck brace.

Johnson filed a workers’ compensation claim on February 2, 1996, based on the January 1995 neck injury and the October 1995 injury. Noting various inconsistencies in the evidence concerning whether Johnson’s injuries occurred at work or during outside activities, the ALJ denied the claim on the ground that Johnson failed to prove any work-related accidental injury. The appellate division rejected the ALJ’s findings and conclusions as not supported by a preponderance of the competent and credible evidence, resolved the inconsistencies in Johnson’s favor, and awarded benefits. The appellate division further found that the claim for the January 1995 neck injury was timely, as it was filed within one year of the last medical treatment provided by the employer.

However, the superior court reversed the appellate division, holding that (1) the appellate division’s findings were not supported by sufficient competent evidence of record, (2) the appellate division failed to give any consideration to the ALJ’s credibility determinations, and (3) the preponderance of the competent and credible evidence supported the ALJ’s decision.

Before the 1994 amendment of OCGA § 34-9-103 (a), the appellate division’s review of an ALJ decision was de novo. The 1994 amendment changed the scope of review so that the findings of fact made by an ALJ shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence. In Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137 (473 SE2d 166) (1996), this Court held that the new standard still allows the appellate division to make determinations regarding the credibility of the evidence and substitute its own findings of fact based on such.

The Supreme Court has upheld that construction: “Thus, the appellate division must weigh the evidence and assess the credibility of witnesses and if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted. But, if after assessing the evidence of record, the appellate division concludes that the award does not meet the statutes’ evidentiary standards, the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly. [Cits.]” Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997). Where the appellate division does so, the superior court must affirm if any evidence supports the appellate division’s substituted findings. Id. at 508.

Decided March 25, 1998.

Reynolds & McArthur, Katherine L. McArthur, Charles M. Cork III, for appellant.

Ellis, Easterlin, Peagler, Gatewood & Skipper, George M. Peagler, Jr., for appellee.

In the instant case, there were inconsistencies in the evidence regarding the causation or extent of Johnson’s injuries and the ALJ resolved those inconsistencies adversely to her. However, after weighing the evidence and assessing credibility, the appellate division resolved the inconsistencies in Johnson’s favor. The appellate division was authorized to do so, and as there was some evidence supporting the appellate division’s findings, the superior court erred in reversing the appellate division’s final decision.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A98A0803.
    CANTRELL v. THE STATE.
    (500 SE2d 386)
   Eldridge, Judge.

Jeffery Julian Cantrell appeals from a Towns County jury verdict finding him guilty of two counts of aggravated child molestation and two counts of child molestation. His sole enumeration of error challenges the sufficiency of the evidence against him. Appellant does not contend that the state failed to prove the offenses, but, instead, contends that “the only direct evidence was from the alleged victim,” who was “impeached.” Because the evidence was sufficient, we affirm.

Under Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979), the sufficiency of the evidence is measured by determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” It is solely within the purview of the jury to weigh conflicting evidence and judge the credibility of the witnesses. OCGA § 24-9-80; Robinson v. State, 203 Ga. App. 759, 760 (417 SE2d 404) (1992).

Appellant is correct that the victim’s testimony is the only direct evidence proving the essential elements of the offenses.* However, in incidents of child molestation, more often than not the child/victim is the only witness able to provide such direct evidence. Sexual offenses against children necessarily occur in secret. This is one reason that Georgia law does not require corroboration of a child molestation victim’s testimony. Scales v. State, 171 Ga. App. 924 (2) (321 SE2d 764) (1984); see Baker v. State, 245 Ga. 657, 664 (5) (266 SE2d 477) (1980); see also OCGA § 24-4-8. Accordingly, “[t]aking the victim’s testimony as true, as we must, it alone was clearly sufficient to authorize [Cantrell’s] conviction of the [offenses as charged] under the standard set forth in Jackson v. Virginia, [supra].” Bryant v. State, 226 Ga. App. 135, 136 (486 SE2d 374) (1997).

Decided March 25, 1998.

Law Offices of Charles Cory, Cary D. Cox, for appellant.

Darrell E. Wilson, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The state also presented circumstantial evidence through the testimony of witnesses to whom the victim had made outcry.


author: Ruffin, Judge.

text:
    A97A1886.
    KOLLMAN v. THE STATE.
    (498 SE2d 745)
   Ruffin, Judge.

A jury found Bernice Kollman guilty of driving under the influence of alcohol to the extent that it is less safe to drive (OCGA § 40-6-391 (a) (1)). Kollman appeals, asserting that the trial court erred by admitting Intoxilyzer 5000 test results without a proper foundation and that there was insufficient evidence to support the verdict. We disagree and' affirm Kollman’s conviction.

1. Kollman asserts that the trial court erred in admitting the Intoxilyzer 5000 test results because there was no evidence the arresting officer informed her of her implied consent rights. See OCGA §§ 40-5-55 and 40-5-67.1. We disagree. The transcript shows that although the arresting officer did not specify the exact language used, he did testify that he read Kollman the implied consent warning. Pretermitting the question of whether such testimony is sufficient evidence to establish that the officer gave the correct warning, Kollman has not shown, and the transcript before us does not reveal, that Kollman objected to the introduction of the test results on this basis below. “ ‘[I]t is well established that grounds not raised by objection below may not be raised for the first time on appeal. (Cit.)’ [Cit.]” Shelton v. State, 216 Ga. App. 634, 635 (2) (455 SE2d 304) (1995).

2. Kollman next asserts that the trial court committed reversible error in admitting into evidence inspection certificates for the Intoxilyzer 5000. According to Kollman, without testimony from the individual who actually inspected the machine, admission of the certificates violated her Sixth Amendment right to confrontation. This same argument, however, was recently addressed and rejected by our Supreme Court in Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997). Accordingly, for the reasons discussed in Brown, we find no merit in Kollman’s argument.

3. Nor did the trial court commit reversible error in admitting a copy of the document certifying that the inspector of the Intoxilyzer 5000 was authorized to perform the inspections. The State met its burden of proving the Intoxilyzer 5000 was properly functioning with the admission into evidence of the inspection certificates addressed in Division 2. The requirement that the testing machines be properly maintained and the related inspection certification provisions are set forth in OCGA § 40-6-392 (a) (1). OCGA § 40-6-392 (f) provides that “[w]hen properly prepared and executed, as prescribed in this subsection, the [inspection] certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section. . . .” (Emphasis supplied.) Other than her contention which we rejected in Division 2, Kollman does not assert that the actual inspection certificates were deficient in any manner. And, our review of the record indicates that the inspection certificates comply with the requirements of OCGA § 40-6-392 (f). Accordingly, the State was not required to introduce a copy of the document certifying that the inspector of the Intoxilyzer 5000 was authorized to perform the inspections. Furthermore, even if the trial court erred in admitting the copy into evidence under the Best Evidence Rule, OCGA § 24-5-1 et seq., an appellant must show both error and harm to prevail on appeal. See Morrow v. State, 226 Ga. App. 833, 835 (2) (487 SE2d 669) (1997). Kollman has not shown how she was harmed by the ruling.

4. Finally, we find there was sufficient evidence to support Kollman’s conviction. “ ‘On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]’ [Cit.]” Tanner v. State, 225 Ga. App. 702, 703 (484 SE2d 766) (1997).

Viewed in this light, the evidence at trial showed that Deputy William Meadows was assisting Georgia State Patrol Trooper James Traylor investigate an auto accident. Kollman, who was not involved in the collision, experienced mechanical problems with her car and pulled to the side of the road near the car accident scene. When she asked Deputy Meadows for assistance, he smelled alcohol on her breath. According to Meadows, he asked Kollman for her license and she became “belligerent.” Upon returning to Kollman’s car to obtain the license, Meadows noticed a small bottle of alcohol near the console. Deputy Meadows went to discuss the situation with Trooper Traylor, and when he looked toward Kollman’s car, he saw her pouring the bottle of alcohol onto the ground. Trooper Traylor testified that he approached Kollman and “could smell a strong odor of alcohol about her person.” Traylor further stated that Kollman had glassy eyes, was “leaning on [her] vehicle at the time [he] was talking to her and [she] appeared to be unsteady on her feet. . . .” According to Traylor, when he asked Kollman if she had anything to drink, she became “belligerent had a lot of cussing and that sort of thing. . . .” Officer Meadows thereafter arrested Kollman, and a subsequent Intoxilyzer 5000 test revealed she had a blood-alcohol concentration of .105 percent. Finally, Trooper Traylor testified without objection that in his opinion Kollman was in a condition in which it was less safe for her to drive.

Decided January 15, 1998

Reconsideration dismissed March 26, 1998

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

John H. Cranford, Solicitor, for appellee.

Even though there was no direct evidence of any unsafe driving, we find that, viewed in the light most favorable to the verdict, the foregoing evidence was sufficient to allow a rational jury to find Kollman guilty of driving under the influence of alcohol to the extent that it was less safe for her to drive. See Rylee v. State, 210 Ga. App. 314 (436 SE2d 52) (1993).

Judgment affirmed.

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


text:
    A97A2178.
    TRI-COUNTY INVESTMENT GROUP, LTD. v. SOUTHERN STATES, INC.
    (500 SE2d 22)
   Ruffin, Judge.

Tri-County Investment Group, Ltd., a Georgia Corporation, (“Tri-County”) sued Southern States, Inc. (“Southern”) for Southern’s alleged groundwater contamination of property located in Henry County, Georgia that Tri-County purported to own. Southern moved for summary judgment, arguing; inter alia, that Tri-County did not have standing to sue because it did not own the property. Southern maintained that even if Tri-County had standing, the action was barred by the four-year statute of limitation for damages to realty. OCGA § 9-3-30. The trial court granted Southern summary judgment without stating upon what grounds the judgment was based. The trial court also denied Tri-County’s motion to add as a party plaintiff Tri-County Investors, a partnership (“the Partnership”), stating that there was no viable cause of action which the Partnership could pursue. Tri-County appealed, and for the following reasons, we reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in a light most favorable to Tri-County, the record reveals the following. In September 1987, the Partnership purchased over 100 acres of property adjacent to Southern’s property in Henry County. Over the ensuing years, the Partnership sold some of the acreage, leaving it with approximately 34 acres (“the subject property”) adjoining Southern’s property.

In 1989, contaminants were found in the city of Hampton’s water supply. The Georgia Environmental Protection Division (“EPD”) contacted Southern to determine if Southern was the cause of the contamination. Southern drilled monitoring wells and concluded that a contamination plume of pollutants extended from a landfill located on Southern’s property.

Also in 1989, cleaning solvents leaked from one of Southern’s drainage pipes and contaminated a pond and groundwater located on Southern’s property. Southern’s drainage system was subsequently redesigned to prevent further leaks from occurring.

Although Southern filed with the EPD a clean up plan for the groundwater and pond contamination, the EPD had not approved the plan at the time Southern filed its motion for summary judgment in this case.

Southern apprised the Partnership of the contamination in 1990 or 1991. In July 1991, consulting engineers employed by Southern to investigate the groundwater contamination requested access to the Partnership’s property for testing. In May 1992, the Partnership permitted the engineers to drill two monitoring wells on its property. Southern then requested, in February 1993, for permission from the Partnership to drill more wells on the Partnership’s property. The Partnership allowed Southern’s engineers to perform a non-intrusion site inspection, but prohibited Southern from drilling any further test wells.

On May 6, 1993, Tri-County was incorporated. The principals in Tri-County were the same principals in the Partnership. While the partners assumed that all the Partnership’s assets were transferred to Tri-County after the incorporation, in actuality the subject property was not conveyed to Tri-County. In June 1993, Tri-County wrote to Southern, stating that the marketability of the subject property had been destroyed and demanding that Southern purchase the land for $419,000.

The engineers employed by Southern to assess the contamination issued a report in November 1993 stating that Southern’s contamination had spread into the groundwater onto the subject property. They concluded that “much of the contaminant plume is expected to extend across onto [the subject property]. . . . This distance would be as much as 200 to 300 feet south of [the subject] property.” The engineers admitted that the Southern “facility is the most likely source of the VOC contamination found in the groundwater . . . [and] spills or releases of contaminants to the land or surface water at the [Southern] facility would naturally progress to [the subject property] over time.” The “[f]ull extent of groundwater contamination . . . cannot be determined from the information available at this time. However, the plume is expected to extend laterally . . . which is 100 to 150 feet west of [the subject property’s] boundary with [Southern].” The engineers gave various possibilities for the source of the contamination, all of which wére located on Southern’s property. Finally, the engineers admitted that it was feasible that the contamination could be spreading in the groundwater.

In May 1995, Tri-County sued Southern seeking, inter alia, damages for continuing trespass and continuing nuisance due to the contamination of the groundwater. After Southern raised the issue of Tri-County’s standing since the corporation did not own the subject property, Tri-County’s attorney prepared and filed a warranty deed from the Partnership to Tri-County conveying the 34 acres. Additionally, in August 1996, Tri-County moved to add the Partnership as a plaintiff pursuant to OCGA §§ 9-11-18, 9-11-20 and 9-11-21. Then, in January 1997, the Partnership filed a separate action against Southern utilizing the same complaint filed by Tri-County against Southern in the instant case.

In its order granting summary judgment the trial court stated that, “having granted [Southern’s] Motion for Summary Judgment, [it] does hereby deny Plaintiff’s Motion to Add [the Partnership] as a Plaintiff since no cause of action now exists to which [the Partnership] could be added.” The trial court further noted that the Partnership has a separate civil action against Southern in Henry County Superior Court.

1. Tri-County asserts that it filed its complaint for continuing trespass and continuing nuisance within the applicable period of limitations. Southern asserts that the tort involved here — the contamination of the groundwater — is not continuing but rather is a permanent nuisance that occurred in 1989. Accordingly, Southern maintains that Tri-County and the partnership are both time-barred from pursuing this action because the suit was filed in 1995, over four years after the onset of the contamination. See OCGA § 9-3-30.

While Southern is correct that, ordinarily, such claims are governed by a four-year statute of limitation, the theory of “continuing tort” exists in this state.. Corp. of Mercer Univ. v. National Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988); Tucker v. Southern Wood Piedmont Co., 28 F3d 1089, 1090-1091 [1] (11th Cir. 1994). “Under Georgia law, a cause of action for a tort that is continuing in nature — for example, the frequent runoff of contaminated water across land, or . . . the underground leakage of hazardous waste onto adjoining property — accrues at the time of continuance. [Cit.] Therefore, the plaintiff in a continuing tort suit can recover for any damages that were suffered within four years prior to the filing of the suit. [Cit.]” Id. at 1091 [2, 3]. See also City Council of Augusta v. Lombard, 101 Ga. 724, 727 (28 SE 994) (1897) (“[w]here a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie. [Cit.]”); Southfund Partners v. City of Atlanta, 221 Ga. App. 666 (3) (472 SE2d 499) (1996).

In Tucker, supra, the plaintiffs owned property near defendant’s land on which defendant had for decades treated wood with creosote and other chemicals. The plaintiffs argued that hazardous waste was leaking onto their property from the defendants’ land. The Eleventh Circuit concluded that this was a continuing tort and not a permanent nuisance. Tucker, supra at 1091.

Additionally, in Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727 (426 SE2d 387) (1992), the plaintiffs sued the owner of a pipeline and easement, Atlanta Gas Light Company, and the previous owner of the easement, Plantation Pipeline Company, for contamination of the soil and groundwater caused by leakage of petroleum products from the pipeline during the time Plantation Pipeline was the owner. We ruled that the old leaks in the pipeline, which had been corrected, did not constitute the nuisance. Rather, the nuisance was the “continuing exudation and leaching of chemicals into the ground from the contaminants deposited long ago through the leaks.” Id. at 730. We ruled that summary judgment to Plantation Pipeline on the plaintiffs’ nuisance and trespass claims was error. Id. at 730-731. Furthermore, we concluded that Atlanta Gas Light could be held responsible for the maintenance of a continuing nuisance, and so it was not entitled to summary judgment either. Id. at 731.

A similar analysis was employed in Smith v. Branch, 226 Ga. App. 626 (487 SE2d 35) (1997), where a plaintiff sued a dry cleaning business for contamination of property with dry cleaning waste and chemicals. In Smith, there was evidence that the contamination caused by the defendant business was continuing to migrate, and did so within four years of the plaintiff filing suit. Accordingly, we held the four-year statute of limitation did not bar the plaintiff’s actions for the continuing trespass and continuing nuisance. Id. at 628-629.

The instant case is similar to Smith, Tucker and Hoffman. Southern’s engineering consultants found that the operations on Southern’s properties were the cause of the groundwater contamination. They also admitted that, at the time of the report, the full extent of the groundwater contamination was unclear and that the contamination could easily be migrating in the groundwater.

Accordingly, though the act that originally caused the nuisance might not have been committed within the period of limitations of the action, Tri-County has presented some evidence that the groundwater contamination is a continuing tort that has continued to inflict damages in the four years prior to its suit. Summary judgment was inappropriate in this case on the basis that the suit was time-barred.

2. In its motion for summary judgment, Southern argued that Tri-County did not have standing to file this action. In granting summary judgment, the trial court did not specifically address the issue of standing or conclude that the grant of summary judgment was predicated upon the standing issue.

Southern’s standing challenge is essentially a real party in interest objection. Such an objection does not go to the merits of an action, but rather is a matter in abatement for which summary judgment is inappropriate. Hodgskin v. Markatron, Inc., 185 Ga. App. 750 (365 SE2d 494) (1988); Warshaw Properties v. Lackey, 170 Ga. App. 101 (316 SE2d 482) (1984). A trial court can dismiss an action based upon a real party in interest objection, but only aftervallowing a reasonable time for the real party to be shown by ratification, joinder or substitution. Henry v. Moister, 155 Ga. App. 462 (271 SE2d 40) (1980).

Here, Tri-County moved the trial court to add the partnership as a party after Southern raised the standing issue. If the grant of summary judgment was based on the issue of standing, the trial court erred. Warshaw, supra. Additionally, if the trial court’s resolution of the standing issue was the foundation for the determination that there was no viable action to which the Partnership could be added, then the court erred because it had not first determined whether it was feasible to add the Partnership as a real party in interest. Henry, supra; Warshaw, supra.

3. The trial court’s statement in its order granting summary judgment that the Partnership had filed a subsequent action in Henry County Superior Court also does not support the court’s denial of the motion to add the Partnership as a plaintiff.

OCGA § 9-2-5 (a) provides that “[n]o plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.” Where identical actions are filed at different times, the plaintiff does not have a choice but must proceed with the initially filed action. Clark v. Weaver, 159 Ga. App. 594, 595 (284 SE2d 95) (1981).

In the instant case, under OCGA § 9-11-17 (a), the trial court should have first determined whether the Partnership could be added as a party plaintiff after Tri-County sought joinder or substitution of the Partnership as a party to Tri-County’s 1995 suit. Henry, supra; Warshaw, supra. If the trial court allowed the addition of the Partnership to Tri-County’s 1995 action, the Partnership’s 1997 suit should have been dismissed, assuming it was identical to the 1995 suit. See OCGA § 9-2-5 (a); Clark, supra. Accordingly, the trial court erred if it based its refusal to add the Partnership as a party plaintiff to the 1995 suit on the existence of the Partnership’s 1997 suit.

4. (a) Finally, Tri-County claims that it is entitled to compensatory and punitive damages. However, the parties dispute what are appropriate compensatory damages in this case. In its complaint, Tri-County asserted that because of .the contamination, it “has suffered an extreme loss in value of [the subject property] and ... is unable to sell [the] property. . . .” Tri-County requested an award of $400,000 in “compensatory damages” along with punitive damages of $500,000. On appeal, Tri-County also maintains that it is entitled to special damages.

“ Tn cases of nuisances which cause permanent injury to land, the ordinary rule is that the measure of damages is the depreciation of the market value; in regard to nuisances which are of a non-permanent, abatable, or’ temporary nature, the depreciation in the usable or rental value ordinarily furnishes the measure. But, under some circumstances, there may also be a recovery for special damages.’ [Cit.]” Ward v. Southern Brighton Mills, 45 Ga. App. 262, 264-265 (164 SE 214) (1932). See also City of Warner Robins v. Holt, 220 Ga. App. 794 (2) (470 SE2d 238) (1996) (diminution of fair market value is measure of damages for permanent nuisance while lost rental value is measure of damages for abatable nuisance).

In this case, Tri-County cannot recover special damages since it failed to specifically state what special damages it sought in the complaint. OCGA § 9-11-9 (g) (“When items of special damage are claimed, they shall be specifically stated.”). Furthermore, whether Tri-County’s compensatory damage claim is based on lost rental value, lost market value, or some other measure of damages is dependent upon the evidence produced at trial. Accordingly, summary judgment regarding the propriety of Tri-County’s claim for compensatory damages was not appropriate.

(b) Tri-County also prayed for punitive damages based on Southern’s alleged “bad faith in [refusing] to abate a nuisance after proper notice. . . . OCGA § 51-12-5.1 et seq.”

“Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). “Under OCGA § 51-12-5.1 (b) . . . it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage.” (Punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811) (1991). “Mere negligence, although gross, will not alone support the recovery of punitive damages. [Cit.]” (Punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (1) (389 SE2d 355) (1989).

In the instant case, there is insufficient evidence to support a finding that Southern wilfully or with conscious indifference failed to abate the nuisance. When the city of Hampton contacted Southern in 1989 regarding possible contamination of groundwater, Southern drilled monitoring wells and tested its property to establish the source of the contamination. When Southern found a contaminant plume emanating from a landfill on its property, it agreed to define the extent of the plume and clean it. Southern also changed the design of one of its drainage systems to prevent any further leakages into the groundwater. Southern filed a clean-up plan with the EPD, which was pending approval by the EPD at the time of this suit. There is no evidence that Tri-County demanded that Southern clean the contamination on the subject property or that Southern deliberately ignored any requests to abate the nuisance. Accordingly, there was no evidence supporting Tri-County’s claim of punitive damages. Ivey, supra; Eusery, supra.

Decided March 16, 1998

Reconsideration denied March 26, 1998.

James B. Gurley, for appellant.

Womble, Carlyle, Sandridge & Rice, William A. Capp, Lightmas & Delk, Frank A. Lightmas, Jr., for appellee.

Judgment affirmed in part and reversed in part.

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


author: Judge Harold R. Banke.

text:
    A98A0152.
    In THE INTEREST OF C. N., a child.
    (500 SE2d 400)
   Judge Harold R. Banke.

The juvenile court found clear and convincing evidence that C. N. was a deprived child needing State protection. The court accepted the Department of Family & Children Services’ (“DFCS”) recommendation that reunification services were not appropriate. C. N.’s biological mother disputes those findings.

Over an extended period of time, DFCS received referrals about C. N., born in May 1987, and had maintained a child protective services file on him. In September 1996, DFCS opened a new case based on reports of neglect by C. N.’s maternal grandfather, his primary caretaker. A DFCS investigation confirmed inadequate adult supervision and poor discipline, erratic school attendance, chronically poor hygiene, and repeated problems with lice infestation. At the time of the intervention, C. N., who has a learning disability, was functioning two grade levels below normal and needed special speech services. His communication skills were extremely deficient due to a severe articulation disorder. His 82-year-old grandfather, a loving and caring person, suffers from certain physical limitations, and was admittedly unable to discipline or to provide for C. N.’s special needs. C. N.’s mother was unemployed, on SSI disability, and according to psychological tests is cognitively limited. When C. N. balked at going to school, he was permitted to remain home and watch television or play without any supervision outside the trailer. His mother conceded that C. N. had been exposed to her quarreling and fighting with her boyfriend.

According to C. N.’s foster mother, when C. N. arrived at her home, he was infested with head lice, suffering from an ear infection, and needed extensive dental work including seven fillings, three root canals and crowns, and one extraction. She testified that C. N. was gradually becoming less withdrawn, more outgoing, and that with intensive speech therapy and regular school attendance, his speech had significantly improved. In her view, C. N. had blossomed into a bubbly, warm, and friendly child. Held:

1. C. N.’s mother contends that the deprivation order was not supported by clear and convincing evidence that C. N. is deprived or that she is unfit or unable to retain custody. A “deprived child” is one who is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). A parent may lose custody where the court determines by clear and convincing evidence that the child is deprived and will likely be harmed by such deprivation. OCGA §§ 15-11-33 (b) (1); 15-11-34 (a) (2). Deprivation may be shown to have resulted from parental unfitness that is either intentional or unintentional misconduct resulting in the abuse or neglect of a child by what is tantamount to physical or mental incapability to care for the child. In re D. H, 178 Ga. App. 119, 124 (342 SE2d 367) (1986).

In this case, the State offered evidence that C. N. was a “deprived child” who lacked appropriate parental supervision, proper discipline, and suffered from poor personal hygiene. C. N. missed 16 of 48 school days and his mother was admittedly unable to compel C. N. to attend school because she feared his temper tantrums. The State presented evidence that C. N.’s mother was emotionally and mentally impaired. A licensed professional counselor testified that his mother was unable to comprehend and implement the parenting skills that he attempted to teach her. This counselor, a parent aide, and a DFCS caseworker concluded that C. N.’s mother could not make substantial progress even if additional services were provided. In fact, C. N.’s mother admitted to DFCS and to school personnel that she was not able to effectively parent C. N.

The evidence was sufficient to permit the juvenile court to have found clear and convincing proof of C. N.’s deprivation and that his mother’s misconduct or inability to care for his needs resulted in abuse or neglect sufficient to render her unfit to retain custody. See OCGA § 15-11-81 (b) (4). See In the Interest of J. M. K, 189 Ga. App. 140, 141 (375 SE2d 131) (1988).

2. C. N.’s mother asserts that DFCS’s non-reunification recommendation lacked sufficient particularity as to why reasonable efforts at reunification would be detrimental to C. N. and contained only conclusory statements of possible harm to C. N. She also contends that the court’s order embracing that recommendation lacked the requisite clear and convincing evidence that reunification would bé detrimental to C. N. See OCGA § 15-11-41 (g).

DFCS offered evidence that reunification would subject C. N. to further educational neglect, inadequate supervision, and domestic violence. DFCS presented testimony which demonstrated that C. N.’s mother’s cognitive limitations and inability to exercise control and to adequately supervise C. N. had placed C. N. at risk. Three witnesses testified that C. N.’s mother failed to make any significant progress despite receiving intensive support and professional intervention. A DFCS caseworker testified that the agency could not provide any additional services which would eliminate the risk of harm to C. N. and make the home suitable for reunification. In light of this evidence, the juvenile court, as the factfinder, could have found clear and convincing evidence that the conditions of deprivation were likely to continue and that reunification would be detrimental to C. N. In the Interest of J. M. G, 201 Ga. App. 173, 174 (410 SE2d 368) (1991). See In re B. D. G, 256 Ga. 511, 512-513 (350 SE2d 444) (1986); OCGA § 15-11-41 (i).

Decided March 26, 1998

Kennedy R. Packer, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Stephanie M. Baldauff, Shalen A. Sgrosso, Assistant Attorneys General, Fitzpatrick & Camp, Thomas A. Camp, for appellee.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A98A0515.
    WILCHER v. THE STATE.
    (500 SE2d 397)
   Eldridge, Judge.

Appellant Willie Otis Wilcher appeals a Laurens County jury verdict finding him guilty of possession of cocaine, theft by receiving stolen property (firearm), and possession of a firearm during the commission of a felony. We affirm.

1. First, appellant contends that the state exercised a peremptory strike against juror no. 2 for reasons that were not race-neutral. Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). We disagree.

Following the defense challenge, the prosecution offered its reasons for the exercise of a peremptory strike against juror no. 2. The prosecutor explained that juror no. 2 did not complete the jury information questionnaire handed out prior to voir dire; the juror left off his occupation, prior jury service, and all other requested information; the juror’s name was illegible on the form; and the juror gave only a partial address. In addition, the prosecutor “had trouble during the voir dire of getting information from him” and was concerned about his prior jury service, which the juror identified first as criminal and then as civil’

In response, defense counsel argued that a white juror accepted by the state, juror no. 24, was “similarly situated” in that juror no. 24 had not completely filled out the personal information portion of the questionnaire, although he had legibly and completely filled out the name and address portion thereof. Defense counsel also argued that there were other white jurors who had prior jury service, but were accepted by the state. Defense counsel did not challenge at trial the fact that juror no. 2 was “difficult” in terms of obtaining information and was “not responsive” to questions on voir dire.

The trial court initially disallowed the strike. The prosecution asked for reconsideration and offered the trial court juror no. 2’s questionnaire “to take a look at the Clerk’s questionnaire and to review how it was filled out.” The prosecution argued that the telling questionnaire, “coupled” with the prior jury service and the juror’s non-responsiveness on voir dire, provided sufficient race-neutral reasons to survive the Batson challenge. After reviewing the questionnaire, the trial court allowed the strike, ruling “We’ll take the jury we have.”

Appellant is correct that “[a] prosecutor’s failure to explain the apparently disparate treatment of similarly situated white and black jurors . . . diminishes the force of [the] explanation for striking a black juror.” Ford v. State, 262 Ga. 558, 560 (423 SE2d 245) (1992). However, a review of the record does not support appellant’s contention that the reasons given were not applied evenhandedly. Other than appellant’s bare assertion, there is nothing in the record to support appellant’s contention that juror no. 24 did not fill out his jury questionnaire.* ** Further, appellant points to no other juror with the combined qualities displayed by juror no. 2: confusion as to whether he had served on a criminal or civil jury, complete failure to fill out the jury questionnaire; and unresponsiveness to questions on voir dire. These reasons are race-neutral on their face.

While the opponent of a peremptory strike bears the burden of persuading the trial court that the proponent of the strike acted with discriminatory intent in exercising the peremptory challenge, Turner v. State, 267 Ga. 149 (476 SE2d 252) (1996), this burden of persuasion may be satisfied in a number of different ways, including solely upon the strength of the prima facie case in relation to the reasons given. However, whether this burden of persuasion has been met is a decision that must be made by the trial court. Gardner v. State, 225 Ga. App. 427, 436 (483 SE2d 912) (1997). The trial court’s factual findings in this regard must be given great deference and may be disregarded only if clearly erroneous. Id. at 434-436. From a review of the record, we cannot say that the trial court was clearly in error in finding that the state’s explanations were satisfactorily race-neutral so as to overcome appellant’s challenge. Id. at 438.

2. There was no error in the denial of appellant’s motion for directed verdict as to the theft by receiving (firearm) count. “A directed verdict of acquittal is authorized only when there is no conflict in the evidence and the evidence and all reasonable deductions and inferences that can be drawn from it demand a verdict of acquittal. [Cit.]” Davis v. State, 213 Ga. App. 212 (444 SE2d 142) (1994). During the state’s case in chief, Detective Wayne Cain testified that appellant told him that he “bought the gun off the street.” With regard to firearm sales and all of the attendant rules and regulations therefor, we find that this was sufficient evidence of irregularity to survive a motion for directed verdict and put the issue to the jury.

“Whether or not a defendant’s explanation of his possession of . . . stolen property is satisfactory or reasonable is a question for the jury.” (Citations and punctuation omitted.) Abernathy v. State, 214 Ga. App. 364, 365 (448 SE2d 30) (1994). The jury was authorized to disbelieve appellant’s explanation altogether, or to infer from it that those who traffic in weapons “on the street” are aware that they may be buying stolen property.

3. Appellant contends that his sentence was the result of “judicial vindictiveness” in retaliation for his choice to go to trial. Appellant argues that, even though the jury found appellant guilty of the lesser offense of simple possession, the sentence imposed after trial exceeded the negotiated sentence for a guilty plea on the indictment, which included the greater offense of possession with intent.

Decided March 26, 1998.

Celia Larsen, for appellant.

Ralph M. Walke, District Attorney, Swain A. Lewis, Assistant District Attorney, for appellee.

This Court previously has rejected this contention, which is essentially an attack on the plea bargain process. “While confronting a defendant with the risk of more severe punishment clearly may have a discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices is an inevitable — and permissible — attribute of any legitimate system which tolerates and encourages the negotiation of pleas. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.” (Citations and punctuation omitted; emphasis supplied.) Allen v. State, 193 Ga. App. 670, 671 (388 SE2d 889) (1989).

In this case, the state served appellant with notice of aggravation in sentencing that listed four prior felony convictions, including two for felony drug violations. These would be introduced against appellant, if he were convicted pursuant to a trial. Appellant chose to go to trial. That was his right. Further, the trial court was not a party to any plea agreement or negotiation in this case and was not bound by such. The trial court sentenced appellant well within statutorily permissible bounds on the offenses for which he was convicted, especially in light of the evidence introduced in aggravation. Accordingly, there is no evidence of “judicial vindictiveness” in the sentence imposed.

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

       Appellant was indicted for the greater offense of possession with intent to distribute.

       Following the jury’s verdict, appellant pled guilty to a fourth, bifurcated count of possession of a firearm by a convicted felon.

       Where, as in this case, the proponent of a strike has offered race-neutral explanations therefor and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the opponent of the strike has'made a prima facie showing of racial discrimination becomes moot. Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993).

       The jury questionnaires were not made part of the record and are not before this Court. The trial court’s factual determination to permit the strike, made after reviewing juror no. 2’s allegedly incomplete questionnaire, provides support for the state’s contention that the questionnaire was, in fact, lacking in information.

       The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. St. Mary’s Honor Center v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407, 418-419) (1993); Hernandez v. New York, 500 U. S. 352, 365 (111 SC 1859, 1869, 114 LE2d 395) (1991).

       Appellant received a 20-year sentence on this, his fifth felony conviction. The total amount of prison time that could have been imposed was 50 years. See OCGA §§ 16-13-30 (c); 16-8-12 (a) (1); 16-11-106 (b) (5); 16-11-131 (b).


text:
    A98A0531.
    VESTER v. MUG A BUG PEST CONTROL, INC. et al.
    (500 SE2d 406)
   Eldridge, Judge.

On March 28, 1995, Ms. Carmen Mas Vester, plaintiff-appellant, sued Mug A Bug Pest Control, Inc., Randall Piggott, and Ben Satterfield, defendants-appellees, in the Superior Court of Gwinnett County for professional negligence in the failure to properly treat her home for termites and included an affidavit of an expert. On December 1, 1995, plaintiff dismissed the suit.

On July 31,1996, plaintiff filed her second complaint against the defendants but failed to attach an affidavit of an expert. On September 13, 1996, the defendants answered; on November 19, 1996, the defendants filed their motion to dismiss for failure to state a complaint upon which relief could be granted on the grounds that no expert affidavit had been filed with the professional liability action as mandated under OCGA § 9-11-9.1. On November 22, 1996, plaintiff sought to amend the second complaint to add a photocopy of the affidavit of her expert, the same affidavit that she filed with her first suit on March 28, 1995 and to incorporate the original from Case No. 95-A-2086-1 by reference. On February 3, 1997, the trial court granted the motion to dismiss as to Count 2, only.

On May 21, 1997, plaintiff amended her complaint to add a Count 3 for breach of an oral contract. On May 13, 1997, defendants had moved for summary judgment on Count 1 for fraud, emotional distress, punitive damages, and attorney fees. On August 1, 1997, defendants filed a motion for summary judgment as to Count 3 filed by amendment after the first motion. Oral argument was requested in writing on May 13, 1997 and August 1,1997 by the defendants. On September 15, 1997, the trial court granted all the pending defendants’ motions after hearing oral argument on September 11, 1997. Plaintiff filed her notice of appeal on October 1, 1997.

1. Enumerations of error 1 and 3 both go to the issue as to whether the trial court erred in granting summary judgment to the defendants and will be dealt with together. The trial court did not err.

(a) Neither the verified complaint, plaintiff’s affidavit, nor plaintiff’s deposition provided any evidence in the record that the defendants knew the representations made to the plaintiff were false and had been made to deceive her; thus, scienter was never raised by any evidence. Defendants in their verified answers denied any knowledge of the termite infestation and the intent to commit fraud on the plaintiff.

Plaintiff in her verified complaint and her deposition alleges that Piggott knew that there was active termite infestation in her house. However, the complaint stated that the conversation took place on December 7, 1994 after the discovery of the termites, while plaintiff in her deposition did not remember when the conversation occurred. In neither statement did she testify that Piggott said that he knew of the existence of the termite infestation prior to the discovery by the other termite company and at the time that representations were made that there were no termites. Therefore, prior knowledge at the time the representations were made was not shown nor can it be reasonably inferred from the alleged admission. In fact, plaintiff admitted that she had no knowledge that the defendants knew and assumed that the defendants must have known of the termite infestation by the very fact of such infestation. Only plaintiffs testimony set forth any alleged admissions of Piggott. Such testimony by the plaintiff was vague, uncertain, and equivocal as well as being contradicted by plaintiffs earlier testimony that she had assumed knowledge.

Under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (343 SE2d 680) (1986), it must be construed that Piggott was making a statement of knowledge as of December 7, 1994 as to the termite discovery on November 4, 1994, which was after the last representation made and relied upon by the plaintiff. Since plaintiff had no other evidence, except the self-contradictory testimony that supports the plaintiffs claim of admission by the defendant, and this was the only evidence supporting the alleged admission by the defendant of knowledge without any reasonable explanation of the contradictions, then Prophecy Corp. applied. See Korey v. BellSouth Telecommunications, 269 Ga. 108 (498 SE2d 519) (1998); Barrentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994); Goins v. Tucker, 227 Ga. App. 524, 526-527 (2) (489 SE2d 857) (1997); Carrollton Coca-Cola Bottling Co. v. Brown, 185 Ga. App. 588, 590-591 (1) (365 SE2d 143) (1988); Assoc. Hosts of Ga. v. Marley, 184 Ga. App. 352, 353 (1) (361 SE2d 496) (1987).

Plaintiff must prove actual fraud which requires: (1) a false representation made by the defendants; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from acting in reliance by the plaintiff; (4) justifiable reliance by the plaintiff; and (5) damages to the plaintiff. Parsells v. Orkin Exterm. Co., 172 Ga. App. 74, 75 (322 SE2d 91) (1984); Haley v. Ga. Farm Bureau Mut. Ins. Co., 166 Ga. App. 596, 597 (305 SE2d 160) (1983). Plaintiff has failed to produce any evidence that gives rise to scienter. Brookshire v. Digby, 224 Ga. App. 512, 514-515 (481 SE2d 250) (1997); see also Jones v. Cartee, 227 Ga. App. 401, 405 (2) (489 SE2d 141) (1997). The facts and circumstances of this case do not give rise to constructive fraud or fraud by negligence. Lively v. Garnick, 160 Ga. App. 591, 593-594 (287 SE2d 553) (1981); see also Brookshire v. Digby, supra at 516. Thus, the trial court properly granted summary judgment on this theory.

(b) While plaintiff in her complaint raised the issue of intentional infliction of emotional distress, punitive damages, or attorney fees, the plaintiff abandoned such issue by failing in the enumerations of error or initial brief to cite to the record, provide authority, or to argue such issues in compliance with this Court’s rules. Jackson v. State, 213 Ga. App. 420, 421 (444 SE2d 854) (1994); Dimmick v. Pullen, 120 Ga. App. 743, 744-745 (2) (172 SE2d 196) (1969).

Notwithstanding such failure, the record fails to evidence a cause of action for an intentional act directed toward the plaintiff, i.e., a malicious, wilful, or wanton act directed toward her. Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) (1975); Wellborn v. DeKalb County School Dint., 227 Ga. App. 377, 379 (3) (489 SE2d 345) (1997); Sanders v. Brown, 178 Ga. App. 447, 448 (1) (343 SE2d 722) (1986). Furthermore, the “defendant’s conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Turnbull v. Northside Hosp., 220 Ga. App. 883, 884 (2) (470 SE2d 464) (1996). Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. Vidrine v. American Professional Credit, 223 Ga. App. 357, 360 (3) (477 SE2d 602) (1996).” (Citations and punctuation omitted.) Martin v. N. A. Van Lines, 226 Ga. App. 187, 190 (2) (b) (485 SE2d 815) (1997). Thus, summary judgment was appropriate.

(c) The trial court correctly found that there was no consideration for the alleged oral contract. There was no written release by the plaintiff of the defendants of one-half the repair costs; however, plaintiff contended that her payment of one-half the costs of repair was the consideration. The plaintiff remained free to sue the defendants for the entire costs of repair. Thus, the requisite elements of a contract were not shown by the record. OCGA § 13-3-1; Vanguard Properties Dev. Corp. v. Murphy, 136 Ga. App. 519 (221 SE2d 691) (1975).

2. Plaintiff’s second enumeration of error was that the trial court erred in dismissing Count 2, the professional negligence action, for failure to comply with OCGA § 9-11-9.1. We agree.

Plaintiff relied upon two cases which were decided prior to the 1989 amendment to OCGA § 9-11-9.1: St. Joseph’s Hosp. v. Nease, 189 Ga. App. 239, 240-241 (1).(375 SE2d 241) (1988) andReid v. Brazil, 193 Ga. App. 1, 2 (1) (387 SE2d 1) (1989). However, the General Assembly amended such section by Ga. L. 1989, p. 419, § 3, which mandated the contemporaneous filing of the expert affidavit with certain narrow exceptions or the action would be barred as a matter of law. See OCGA § 9-11-9.1 (b); Brake v. Miritz, 193 Ga. App. 662, 666 (388 SE2d 715) (1989); see also St. Joseph’s Hosp. v. Nease, 259 Ga. 153, 155, n. 3 (377 SE2d 847) (1989). Under OCGA § 9-11-9.1 (e), as amended in 1989, if the plaintiff by mistake failed to attach an affidavit to the complaint when filed, then the plaintiff could move the trial court to determine that “the failure to file the affidavit was the result of a mistake.” See OCGA § 9-11-9.1 (e); see also Brake v. Mintz, supra; St. Joseph’s Hosp. v. Nease, supra. Plaintiff failed to have the trial court make such determination to correct the mistake.

The General Assembly passed Ga. L. 1997, pp. 916, 917, § 1, which replaced OCGA § 9-11-9.1 entirely and made the provisions less harsh; under the 1997 revised OCGA § 9-11-9.1 (b), defendants’ motion to dismiss for failure to file the affidavit would not require dismissal, because the motion to dismiss for failure to state a claim based on the absence of the affidavit was untimely. Only the “motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim.” The wording of the amended (d) and (e) is similar. The responsive pleadings were filed on September 13, 1996 and the motion to dismiss was filed on November 19, 1996. Thus, such defense was waived as being untimely.

The descriptive title provides the purpose of such amendment as: “to change the provisions relating to the time of filing and the contents of such affidavit and the practices and procedures related thereto; to provide for dismissal of complaints; to provide for the curing of defects.” Thus, the General Assembly has through OCGA § 9-11-9.1 (d) legislatively approved Glisson v. Hosp. Auth. of Valdosta & Lowndes County, 224 Ga. App. 649, 655 (481 SE2d 612) (1997), because the amended Act now expressly permits amendments under OCGA § 9-11-9.1 (d) and requires that motions to dismiss be filed contemporaneously with the initial pleadings. See OCGA § 9-11-9.1 (b), (d), and (e). Likewise, OCGA § 9-11-9.1 as amended in 1997 has impliedly overruled Keefe v. Northside Hosp., 219 Ga. App. 875 (467 SE2d 9) (1996) by undermining its holding that the affidavit or complaint, setting forth an exception to contemporaneously filing the affidavit, cannot be amended. However, plaintiff in her second amendment adding the expert affidavit never had the trial court determine under the 1997 revised Act that “plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.” See OCGA § 9-11-9.1 (e). Such failure was not fatal to the plaintiff, because the defendants’ motion was untimely under the revised Act and OCGA § 9-11-9.1 no longer was applicable to the defendants, because they were no longer treated as professionals within the Act.

In the revised OCGA § 9-11-9.1, Ga. L. 1997, p. 916, § 1 added a new subsection, (f), which defined expressly the professionals who came within the ambit of the Act, and thereby excluded many actual or so-called professionals from the effect of OCGA § 9-11-9.1. The caption stated the purpose of the revision as: “to provide for professions to which the affidavit requirement applies,” which does not include termite exterminators.

Decided March 26, 1998

The effective date of this procedural act was July 1, 1997, subsequent to the trial court’s ruling on February 3, 1997. In Ga. L. 1997, pp. 916, 919, § 2, the General Assembly, as part of the effective date, provided that the reenactment “shall apply only to actions filed on or after [the effective] date.” Such language is applicable only to laws that create substantive rights that cannot be given retroactive effect, because the parties are vested with substantive rights. See OCGA § 1-3-5; Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988); Pritchard v. Savannah Street &c. R. Co., 87 Ga. 294 (13 SE 493) (1891). This Court has held that OCGA § 9-11-9.1 is procedural in nature, conveying no vested rights, and can be applied retroactively. Kneip v. Southern Engineering, 260 Ga. 409, 410-411 (4) (395 SE2d 809) (1990); Blackmon v. Thompson, 195 Ga. App. 589 (394 SE2d 795) (1990); Precision Planning v. Wall, 193 Ga. App. 331 (387 SE2d 610) (1989). As a procedural law, notwithstanding the legislative attempt to make the application prospective only, the reenactment has retroactive application. Therefore, although the trial court had dismissed Count 2 prior to the passage of the revision of OCGA § 9-11-9.1 under a correct interpretation of the then existing law, such dismissal on appellate review must be decided based upon the present status of the law.

“(A) reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law.” (Citations omitted; emphasis in original.) In re L. L. B., 256 Ga. 768 (353 SE2d 507) (1987); see also City of Atlanta v. Lee, 262 Ga. 461, 462 (421 SE2d 705) (1992). No party has a vested right in a procedure; therefore, a procedural statute has retrospective application. Hart v. Owens-Illinois, Inc., 161 Ga. App. 831 (289 SE2d 544) (1982); Clary v. State, 151 Ga. App. 301 (259 SE2d 697) (1979). Therefore, the dismissal of Count 2 must be reversed under the 1997 revision of OCGA § 9-11-9.1 for failure to comply with pre-1997 OCGA § 9-11-9.1.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Blackburn, J, concur.

Robert L. Mack, Jr., for appellant.

Lokey & Smith, G. Melton Mobley, Jessica F. Pardi, for appellees.


text:
    A98A0578.
    KROGER COMPANY v. BROOKS.
    (500 SE2d 391)
   Eldridge, Judge.

On September 17, 1993, Ashley Brooks, plaintiff-appellee, was an invitee in a store of the Kroger Company (“Kroger”), defendant-appellant, where she stepped on a “mousse-like substance” on the floor, causing her to slip and fall. Plaintiff sued Kroger for its negligence in allowing such “mousse-like substance” to remain on the floor.

Plaintiff entered the store at 11:30 p.m. on Friday, September 17, 1993. In order to get to the bakery, plaintiff walked through check-out lane five, which was not open but provided access to the main store; lane five had no cashier and was closest to the entrance. Plaintiff walked right behind a friend, who had come with her. She was an arm’s length behind her friend. They were there to get croissants. Neither she nor her friend saw any foreign substance on the floor prior to plaintiff’s fall. On the way through lane five, plaintiff slipped and fell when she stepped on a small, flattened, white paper cup that had mousse both inside and around it. This was on the left side of the aisle. A mousse smeared streak extended several feet in length from the flattened cup. The mousse and the floor tile were the same color, so that the mousse was hidden. About a third of the ceiling lights were off, making the store dimmer than normal.

Plaintiff did not know personally how long the mousse had been on the floor prior to her fall. There was no employee at the check-out lane or on the lanes to either side, although there was a cashier at the only open check-out lane in the vicinity, lane seven, which was two lanes away. Immediately after her fall, an employee came to her aid. The employee sent for the store manager, who arrived within moments.

Mr. Barry Hastings, the store manager, testified that “earlier that day” the pastry chef put out vanilla mousse samples that he had prepared between 5:00 and 6:00 p.m. The pastry chef normally worked until 11:00 p.m. or midnight, but on that night, the pastry chef had already left by 11:00 p.m. After 11:30 p.m. when plaintiff fell, there were still mousse samples at the bakery counter.

Mr. Hastings testified that a store manager did a walk-through inspection every hour prior to 8:00 p.m. and at the end of each shift. This inspection took 15 to 20 minutes to perform. The store was swept and spot-mopped hourly from 7:00 a.m. until 7:00 to 8:00 p.m., when business dropped off, and thereafter, cleaning was done only on an as-needed basis. Logs or charts for cleaning and spot checks were kept daily as to the schedule, but the log was not kept for the evening.

Upon the trial of the case, at the close of plaintiff’s case, the defendant moved for directed verdict, which was denied. The defendant renewed its motion for directed verdict at the close of all of the evidence, which was again denied. The jury returned a verdict for the plaintiff. On February 27,1997, judgment was entered. Kroger filed a motion for judgment notwithstanding the verdict (“j.n.o.v.”). On May 19, 1997, the trial court denied the motion. Kroger filed its notice of appeal.

Kroger enumerates two reasons that it contends the trial court erred: (1) the trial court erred in denying its motion for directed verdict; and, (2) the trial court erred in denying its motion for j.n.o.v. Both grounds will be dealt with jointly, because each arises from the same issues of law and fact and are governed by the samé standards of appellate review. “A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a); Metromedia Steakhouses Co., L.P. v. Ray, 219 Ga. App. 716, 717 (2) (466 SE2d 618) (1995). On appeal, the standard of review of a trial court’s denial of a motion for directed verdict is the ‘any evidence’ standard. F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).” Jet Food Stores v. Kicklighter, 226 Ga. App. 552, 553 (487 SE2d 120) (1997). Under this standard, there was no error in the trial court’s denial of the defendant’s motion for directed verdict and motion for j.n.o.v.

Both OCGA § 9-11-50 and § 9-11-56, which deal with motions for summary judgment, are similar and are governed by similar criteria, so that opinions as to one have application to the other. Hawkins v. Greenberg, 159 Ga. App. 302 (283 SE2d 301) (1981); Southern Bell Tel. &c. Co. v. Beaver, 120 Ga. App. 420 (170 SE2d 737) (1969); Chandler v. Gately, 119 Ga. App. 513 (167 SE2d 697) (1969); Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574 (136 SE2d 505) (1964); McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178 (129 SE2d 408) (1962). Therefore, the landmark decision of Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997) governing slip-and-fall cases on summary judgment controls in determining the same issues at or after trial, when the trial court makes an adjudication on the failure to prove an essential element of the cause of action in a slip-and-fall case.

1. (a) “The court stated [in Alterman Foods v. Ligón, 246 Ga. 620, 623 (272 SE2d 327) (1980)] that an invitee might recover for personal injury suffered in a slip and fall ‘only when the perilous instrumentality is known to the owner or occupant and not known to the person injured. The court concluded that ‘to state a cause of action[,] 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.’ Id. at 623.” Robinson, supra. “When the injured invitee attempted to explain that [she] fell due to a hazard of which [she] was not aware, the focus of the appellate analysis shifted from the plaintiff’s voluntary exposure of [herself] to the hazard to another aspect of the plaintiff’s negligence — the plaintiff’s purported failure to employ all senses in a reasonable measure to discover and avoid that which might cause personal injury. Because either of the two prongs of Alterman Foods was sharp enough to impale a plaintiff’s case, resolution of a defendant’s knowledge of the hazard’s existence was oftentimes pretermitted in favor of an inquiry as to whether the injuries plaintiff had fulfilled the invitee’s duty to exercise ordinary care for personal safety. ... By foregoing a resolution of the owner/ occupier’s knowledge of the hazard in favor of a holding based on the determination that an invitee who did not see a hazard should have seen it in the exercise of ordinary care for personal safety, the courts, in effect, ruled as a matter of law that the invitee had knowledge of the hazard equal to or greater than that of the owner/occupier without knowing the extent of the latter’s knowledge, and implicitly held that an invitee’s duty to exercise ordinary care in looking where one is going is paramount to an owner/occupier’s duty to exercise reasonable care in inspecting and keeping the premises safe for invitees. . . . [T]hese decisions have placed in the limelight an invitee’s duty to exercise reasonable care for personal safety and, in so doing, have relegated to the shadows the duty owed by an owner/occupier to an invitee.” (Citation and punctuation omitted.) Id. Thus, if the plaintiff in her case-in-chief at trial has made out a prima facie case by satisfying the two prong test of Alterman Foods by proving knowledge on the part of the owner/occupier and the exercise of ordinary care for her own safety (or a legitimate reason why she did not discover the hazard), then the defendant has the burden of proof as to any affirmative tort defenses asserted by the defendant. The plaintiff, by making out a prima facie case in her case-in-chief, “placets] on defendants [the burden of proof as to] that which is normally required of a defendant — the establishment of a defense to liability.” Id.

Herein, it was shown in plaintiff’s prima facie case that Kroger gave out samples of mousse after 5:00 p.m., within 75 feet of where the mousse ended up on the floor; that there was a trash can placed next to the bakery counter that showed Kroger’s foreseeability as to the need regarding trash from the samples; that samples were still available until 11:30 p.m. at the bakery counter; and that most customers had stopped coming into the store around 8:00 p.m. The last time that check-out lane five was swept and mopped was around 8:00 p.m., and, thereafter, there was only the night cashier on lane seven. At 8:00 p.m., when the customers dropped off, Mr. Hastings stopped making an hourly walk-through. The night cashier was supposed to check each check-out lane and to restock merchandise on each such lane when she was not waiting on customers; however, there was no evidence that the night cashier ever inspected check-out lane five or restocked it prior to the plaintiff’s fall. The store manager did not know when check-out lane five had been last inspected or at what time he did his own walk-through inspections of the store prior to the fall; all that he could testify to was that he was sure that he had done one or several walk-throughs after 8:00 p.m., in the hours prior to the plaintiff’s fall at 11:30 p.m.

Plaintiff’s evidence showed that the paper cup of mousse had been flattened. A jury could infer from this that someone had previously stepped on the cup before the plaintiff stepped on it as well. In addition, the flattened cup and mousse were to the left side of the aisle from where plaintiff fell. The mousse was smeared over several feet of the floor around the flattened cup. The jury could find that this was consistent with someone, in addition to the plaintiff, stepping on the mashed cup in order for the mousse to be spread over such an extensive area. Further, the plaintiff had mousse on her pants as well as her shoe; there still was some mousse in the flattened cup, as well as mousse around it to plaintiff’s left side, and there was a two-foot-long smear near the cup, although plaintiff fell to the right of the cup. Ms. Meineke, the friend, stated the opinion that the cup looked like someone had stepped on it and that the contents were spread around on the floor, but she could not state whether the cup was smashed by someone before the plaintiff’s fall or by the plaintiff, herself. The jury could find that someone besides the plaintiff stepped on the cup before the plaintiff.

Mr. Hastings testified that he and the night cashier had been on check-out lane seven most of the time between 8:00 p.m. and 11:30 p.m. that evening, although they were supposed to inspect and see that the entire store was maintained.

“Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. [Cit.]” Hughes v. Hosp. Auth. of Floyd County, 165 Ga. App. 530, 531 (301 SE2d 695) (1983); accord Blake v. Kroger Co., 224 Ga. App. 140, 142 (1) (480 SE2d 199) (1996); Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3 (432 SE2d 230) (1993); Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988); see also Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (4) (226 SE2d 142) (1976), which case first set forth this standard. Winn-Dixie Stores v. Hardy, supra, based its constructive knowledge standard upon S. H. Kress & Co. v. Flanigan, 103 Ga. App. 301, 303 (119 SE2d 32) (1961), where the employee was six feet away, and Sharpton v. Great A & P Tea Co., 112 Ga. App. 283 (145 SE2d 101) (1965), where the employee was several check-out aisles away, restocking merchandise on a different check-out aisle. Thus, whether an employee was in the “immediate vicinity” is a factual question for the jury’s determination, i.e., whether or not “the defendant had an opportunity to discover the defect [because] one of defendant’s employees was in a position to see the defect ... by casual observation.” Sharpton v. Great A&P Tea Co., supra at 285. The jury could find that when the night cashier or the manager left check-out lane seven and went towards check-out lane five, the hazard was observable to them, so that they were in a position to discover the hazard.

In this case, the night cashier and the manager were two checkout lanes away, lane seven, from check-out lane five, where plaintiff fell. They had been at lane seven from 8:00 p.m. to 11:30 p.m. and were supposed to inspect the area where the fall took place, either while restocking or while doing a walk-through inspection. Another employee saw plaintiff fall and went to her assistance within moments after her fall. It was a jury issue whether these employees could be considered in the “immediate vicinity” and whether they were in a position to see the mousse on the floor from where they were at various times between 8:00 p.m. and 11:30 p.m. when they were away from lane seven. “The existence of such [constructive] knowledge is a matter for the jury when there is evidence from which it may be inferred. [Cit.]” Gold & White, Inc. v. Long, 159 Ga. App. 259, 260 (283 SE2d 45) (1981); Piggly-Wiggly Southern v. Tucker, 139 Ga. App. 873 (1) (229 SE2d 804) (1976). Therefore, the directed verdict and j.n.o.v. were properly denied.

(b) “Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. [Cits.]” Hughes v. Hosp. Auth. of Floyd County, supra at 531. “To sustain plaintiff’s cause of action in the [failure to inspect] case it is necessary that [she] prove a period of time the dangerous condition has been allowed to exist. Without such proof[,] it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard. Banks v. Colonial Stores, 117 Ga. App. 581 (161 SE2d 366) [(1968)]. WinnDixie Stores, Inc. v. Hardy, [supra at 345].” (Punctuation omitted.) Piggly-Wiggly Southern v. Tucker, supra at 875. Where there was a conflict in evidence between five minutes and several hours, this created a jury issue. Id. A specific amount of time must be “alleged or proved that the foreign substance was permitted to remain on the floor” to create a duty on the owner/occupier to discover and remove it. Winn-Dixie Stores v. Hardy, supra at 345. “The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case[, i.e.,] the nature of the business, size of the store, the number of customers, the nature of the dangerous condition and the store’s location.” (Citation and punctuation omitted.) Alterman Foods, supra at 623; accord Food Giant v. Cooke, supra at 256. Further, “[a] correct rule is that in the absence of evidence^] ... a reasonable inspection would have discovered the foreign substance, no inference can arise that defendant’s failure to discover the substance was the result of its failure to inspect.” Blake v. Kroger Co., supra at 144. Conversely, where the evidence raises the inference that the foreign substance was discoverable pursuant to a reasonable inspection, a jury issue arises as to whether the defendant had constructive knowledge of what reasonable inspection would have revealed and a directed verdict is not appropriate.

In this case, the evidence was that the last known scheduled sweeping, mopping, and inspection of check-out lane five occurred at 8:00 p.m., following routine inspection procedures, and that the area would be swept and mopped only on an as-needed basis after that time, which did not occur prior to the fall. Both the manager, who was bagging groceries on the only open check-out lane, lane seven, and the night cashier had the responsibility of inspecting check-out lane five after 8:00 p.m., when there were no customers checking out. In the incident report filled out immediately after the fall, the store manager did not know the last time check-out lane five had been inspected, mopped, or cleaned up. Mr. Hastings testified that he could not remember specifically what time he did the last walk-through inspection of the store, but he was sure that he had done at least one, and possibly two, inspections during the hours prior to plaintiff’s fall. The mousse samples had been out since 5:00 p.m., but the number of customers dropped off around 8:00 p.m. so that only one night cashier was needed and the lights could be dimmed. This factual scenario raises an inference that the jury could draw that the mousse had been dropped earlier in the evening, when there had been more customers sampling the mousse.

Further, the paper cup was flattened and mousse was spread all over the left side of check-out lane five, as if someone had stepped on it prior to the plaintiff stepping on it; the jury could find that the area over which the mousse was spread would require more than the plaintiff stepping on it to smear it over such area. The jury could infer that the mousse had been on the floor anywhere from 8:00 p.m. to 10:30 p.m. and that the mousse had been on the floor long enough for someone else to step in it and to track it around. Thus, there existed a jury issue as to the length of time that the mousse had been on the floor and whether the defendant had exercised ordinary care in its inspection of the premises during such time period. See Jet Food Stores v. Kicklighter, supra; Newell v. Great A & P Tea Co., 222 Ga. App. 884, 887 (1) (476 SE2d 631) (1996). Accordingly, a directed verdict or j.n.o.v. could not be granted on this basis.

2. “By encouraging others to enter the premises to further the owner/occupier’s purpose, the owner/occupier makes an implied representation that reasonable care has been exercised to make the place safe for those who come for that purpose, and that representation is the basis of the liability of the owner/occupier for an invitee’s injuries sustained in a ‘slip-and-fall.’ Prosser, Law of Torts (4th ed.), p. 422, § 61; Begin v. Ga. Championship Wrestling, [172 Ga. App. 293, 294 (322 SE2d 737) (1984)]. An invitee who responds to the owner/ occupier’s invitation and enters the premises does so pursuant to an implied representation or assurance that the premises have been made ready and safe for the invitee’s reception, and the entering invitee is entitled to expect that the owner/occupier has exercised and will continue to exercise reasonable care to make the premises safe. Id. It is in this light that an invitee’s exercise of ordinary care for personal safety must be examined.” Robinson, supra. “The invitee is not bound to avoid hazards not usually present on the premises and which the invitee, exercising ordinary care, did not observe . . . , and the invitee is not required, in all circumstances, to look continuously at the floor, without intermission, for defects in the floor. An invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects. [L]ooking continuously in all directions is not required in all circumstances to exercise ordinary care for personal safety.” (Citations and punctuation omitted.) Id.

Plaintiff met the second prong of Alterman Foods by making out a prima facie case of her exercise of ordinary care for her own safety by showing that the color of the mousse and floor tiles camouflaged its presence, which was known or should have been known by Kroger; that her friend’s body, an arm’s length ahead of her, obstructed her view; and that she had been looking where she was going without talking or looking at displays. Also, the manager had dimmed the lights to save energy, which added to the obscuring of the mousse on the floor.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided March 26, 1998

Webb, Carlock, Copeland, Sender & Stair, Douglas A. Wilde, James R. Doyle II, for appellant.

Ashley Brooks, pro se.

The Ford Law Firm, James L. Ford, Sr., Christopher G. Moor-man, for appellee.