author: McMurray, Presiding Judge.

text:
    A00A0056.
    RAYBORN v. LONG et al.
    (532 SE2d 433)
   McMurray, Presiding Judge.

Walter S. Rayborn brought this action for damages against Stan W. Long and Donald Long, individually and purportedly d/b/a Century 21, Georgia Farm Realty (GFR), alleging that he advised Stan Long he desired to buy a certain 28.5-acre parcel of real property advertised for sale by the Long defendants and that on May 18,1998, he presented an earnest money check and an executed contract to purchase the property “as is” for $38,900.

Raybom further alleged that when he sought to close on the property, he learned that the owner, Newell Yvonne Shaw, had accepted the offer of Mike Sigman on May 7; that for $10,048.50, Sigman assigned to R D. Miller, Jr. the right to purchase the property; and that Miller had bought the property for $33,016.50. Rayborn contended that defendants never advised him of the existence of any other contract for the property. Thereafter, Rayborn purchased the property, less ten acres, from Miller for $55,000. Rayborn seeks to recover $32,000, representing the value of the ten acres retained by Miller, and the difference between the price he offered and the price he paid Miller.

Defendants substantially admitted the chronology but denied all liability to Raybom under theories of breach of contract or fiduciary duty. After limited discovery, defendants moved for summary judgment, supporting their motion with the following evidence:

Donald Long deposed that, in his capacity as a real estate sales agent for GFR, he obtained from Shaw an exclusive listing agreement to sell the property for $1,500 per acre. On April 30,1998, GFR received a contract executed by Sigman, who offered to purchase the property for $33,016.50. This document was signed by Shaw on May 7, 1998, at 4:00 p.m. The next day Donald Long received a contract signed that day by Raybom, offering to purchase the property for $38,500. This document recited that it was “open for acceptance until 12 o’clock p.m. on the 15 day of May 98.” (Underlined terms were handwritten.) Rayborn also submitted a check for earnest money for $500.

When Raybom submitted this contract, Donald Long was unaware that Shaw had already signed the Sigman contract. Donald Long deposed he nevertheless told Rayborn that “another contract was outstanding.” Once he learned that Shaw had signed the Sigman contract, Donald Long informed Rayborn that his contract had not been accepted and instmcted GFR to return Rayborn’s earnest money. Meanwhile, in an undated writing, Sigman conveyed his rights to purchase the Shaw property to Miller for $10,048.50. On June 12, 1998, Miller purchased the property from Shaw for $33,016.50, for which GFR was paid an eight percent commission of $2,641.32. GFR never had a listing agreement with Rayborn, and neither defendant Donald Long nor GFR served as a real estate agent or broker for Rayborn.

Stan Long deposed as follows: in May 1998, he went to erect a GFR “For Sale” sign on Shaw’s property. There, he met a man who identified himself as Raybom. While Stan Long discussed the dimensions of the property, at no time did he discuss with Raybom either the sales price or the submission of a purchase offer. Stan Long had no farther contact with Rayborn.

In opposition to defendants’ motion, Raybom deposed that on May 11, Stan Long told him the asking price was $41,000 while Ray-born was willing to pay $35,000. Rayborn had no checkbook with him but “gave Stan Long $20.00 cash to bind the property.” On May 18, 1998, Rayborn telephoned GFR and was informed that his offer to purchase the property for $35,000 was not accepted but that “seller would accept $38,900.00.” On that day, Rayborn met Stan Long who “presented [Rayborn] one copy of a contract for the amount stated which [Rayborn] signed. . . .” Rayborn also tendered the $500 earnest money. On June 4, 1998, Rayborn spoke with defendant Stan Long and was informed “another contract had been signed. . . .” On June 8, 1998, Rayborn “tendered the balance of the purchase price in accordance with the contract executed by him. . . .” On June 15, the certified check tendered as the balance of the purchase price was returned to Rayborn. On July 3, Rayborn purchased a portion of the property from Miller for $55,000.

The superior court granted defendants’ motion for summary judgment. This appeal followed. Held:

In three related enumerations of error, Rayborn contends the trial court erred in concluding that: (1) the defendants owed no duty to Rayborn to present his offer to Shaw; (2) the defendants owed no duty to reveal material facts about the property; and (3) no genuine issue of material fact existed for jury resolution.

1. Rayborn contends the real estate agents owed him a fiduciary duty after he executed a sales contract for a purchase price that Stan Long told Rayborn the owner would accept. We disagree. “The relationship between the real estate agent and the seller is a fiduciary one, and imposes on the agent the duty of exercising the utmost good faith and loyalty toward the principal.” (Citations and punctuation omitted; emphasis supplied.) Brady v. Dandridge, 190 Ga. App. 543, 545 (3) (379 SE2d 429).

The defendants’ denial of an agency relationship with Rayborn is probative evidence that none existed. Bishopsgate Ins. Co. v. Cactus Club, 176 Ga. App. 354, 355 (335 SE2d 685). No evidence demonstrated that the real estate agents acted in a dual agency that would impose on them any fiduciary obligations owed to prospective purchasers. The fact that one agent presented the prospective purchaser with a form real estate sales contract already filled out with those terms the agent believed acceptable to the seller does not make the real estate agent an agent for the purchaser. That was a mere accommodation or courtesy. See Rules & Regs, of the State of Ga., Chapter 520 (Rules & Regs, of the Ga. Real Estate Commission), Rule 520-1-.40 (5) (a) (10), authorizing even unlicensed support personnel to “[type] contract forms as directed by [a] licensee. . . .”

Rayborn’s reliance on Siler v. Gunn, 117 Ga. App. 325 (160 SE2d 427) is misplaced. Shaw’s acceptance of Sigman’s offer on May 7 preceded Rayborn’s dealings with either defendant on May 11. Shaw could not have accepted Rayborn’s later offer without breaching the existing contract, rendering performance of Rayborn’s contract impossible. For this reason, the real estate agents’ failure to present Rayborn’s contract and earnest money to Shaw after she had already accepted a lower offer renders all factual issues immaterial.

2. Remaining enumerations urge a factual issue remains regarding an alleged duty for the agents to “reveal material facts regarding the sale of the property ... on which plaintiff [had] made a deposit and executed a contract prepared by defendants.” Specifically, Raybom complains that he was never given any notice of another contract until he indicated his desire to close in early June, in violation of a real estate agent’s duty not to make any material misrepresentations imposed by OCGA § 43-40-25 (a) (21).

Donald Long testified that, at the time Rayborn submitted his written offer, Long informed Rayborn that “another contract was outstanding.” But Rayborn’s affidavit states he had no knowledge of the possible sale of the property before May 11. Nevertheless, it remains uncontradicted that when Donald Long received Rayborn’s signed offer on May 8, he did not know that Shaw had already accepted Sigman’s April 30 offer to buy the property for approximately $33,000. Consequently, any misrepresentation by Donald Long that Shaw would accept $38,900 is an innocent one, made without full knowledge of the operative facts, and not an intentional misrepresentation made with the intent to deceive. When Rayborn subsequently inquired about closing, he was informed that the property had already been sold and his earnest money was returned. There is no contention that either defendant, in the face of direct inquiry, made an affirmative misrepresentation of material fact. In our view, the real estate agents did not have an affirmative duty to voluntarily disclose the existence of other bidders when soliciting or accepting written offers from potential purchasers. Compare Ga. Real Estate Comm. v. Peavy, 229 Ga. App. 201, 202 (493 SE2d 602) (real estate agent’s intentional failure to disclose malfunctioning septic system to buyers constituted a gross misrepresentation under OCGA § 43-40-25 (a) (21)). The trial court correctly granted defendants’ motion for summary judgment.

Decided March 24, 2000.

Lehman & Cauley, Thomas L. Lehman, for appellant.

Kirbo & Kendrick, David A. Kendrick, for appellees.

Judgment affirmed.

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

       The contract price offered by Rayborn in writing was only $38,500, which is less than the amount Stan Long allegedly told Raybom would be acceptable. This counteroffer would reject any offer to sell for $38,900, for an offer must be accepted as made. Benton v. Shiver, 254 Ga. 107 (326 SE2d 756).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A2345.
    LANG et al. v. BECHAM et al.
    (530 SE2d 746)
   Barnes, Judge.

Sheryl Ann Lang, the wife of the decedent, Lonnie Raymond Lang, appeals the grant of summary judgment to Peach County Sheriff Johnnie V. Becham and his deputy, Lieutenant Kenneth Cameron, in this wrongful death action. Lang was killed when the car he was driving was struck head-on by a car driven by Thomas Tiraboschi, a fleeing felon who was being pursued by Lt. Cameron.

Finding that they were entitled to judgment as a matter of law because of sovereign immunity, official immunity, the application of OCGA § 40-6-6 (d) (2), and general negligence principles, the trial court granted summary judgment to Sheriff Becham and Lt. Cameron. Lang now appeals. Because we find that Lang presented evidence from which a jury could infer that Lt. Cameron recklessly disregarded proper law enforcement procedures in his decision to continue pursuing Tiraboschi, the trial court erred in granting summary judgment to Lt. Cameron pursuant to OCGA § 40-6-6 (d) (2).

We cannot address, however, Lang’s claims against Sheriff Becham. Although Langes enumeration of error alleged that “[t]he trial court erred in granting summary judgment in favor of Lt. Kenny Cameron and Johnny Becham,” she presented no specific argument, cited no authority, and made no reference to the transcript or record to support this enumeration as it concerns Becham. Therefore, any error regarding the grant of summary judgment to Becham is deemed abandoned. Court of Appeals Rule 27 (c) (2); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (3) (328 SE2d 564) (1985). The reference to Becham in Lang’s reply brief does not resurrect the issue concerning the grant of summary judgment to Becham which was not addressed in the initial brief. Cooper v. Commercial Union Ins. Co., 192 Ga. App. 815, 816 (2) (386 SE2d 551) (1989); Bicknell v. Joyce Sportswear Co., supra, 173 Ga. App. at 898 (3).

Summary judgment is appropriate where no genuine issue as to any material fact exists and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56. To prevail on a motion for summary judgment, a defendant must demonstrate “that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs claim.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We review a trial court’s grant of summary judgment de novo, and we view the evidence in the light most favorable to the nonmovant. Taylor v. Gelfand, 233 Ga. App. 835-836 (505 SE2d 222) (1998).

As we recently held:

OCGA § 40-6-6 (d) (2) expressly pertains to those special circumstances where “a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit.” In such circumstances, “the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. . . .” OCGA § 40-6-6 (d) (2). That is, under amended OCGA § 40-6-6, a finding of proximate cause or contributing proximate cause must be supported by evidence that “the officer acts with reckless disregard for proper law enforcement procedures in initiating or continuing the pursuit and this reckless disregard actually causes the damage, injury, or death.” 12 Ga. State U. L. Rev. [295, 298].

(Emphasis in original.) Pearson v. City of Atlanta, 231 Ga. App. 96, 97-98 (2) (499 SE2d 89) (1998).

Viewed in this light, the record reveals that on December 4, 1995, Tiraboschi crossed the centerline of the road and drove his car head-on into Lang’s car, killing him. Sheriff Becham and Lt. Cameron submitted evidence of the Peach County Sheriff’s Department’s standard operating procedures (“SOP”) on the subject of high speed vehicular pursuits of criminal suspects. Lt. Cameron testified in his deposition about the SOP that applied to the pursuit and the many factors he weighed in determining whether to enter the pursuit and whether to continue it. In response, Lang submitted the affidavit of Bill Myers, an expert on law enforcement with 30 years experience in command, investigative, and administrative responsibilities. In Myers’ opinion, “[p] roper law enforcement procedures and regard for the public’s safety both required Kenny Cameron to stop the pursuit” after Tiraboschi entered the two-lane road on which the collision occurred. “Instead, Kenny Cameron acted with the reckless disregard for proper law enforcement procedures (including the policies of the Peach County Sheriff’s Department) as well as in reckless disregard for the public’s safety.”

Decided March 9, 2000

Reconsideration denied March 27, 2000

Reynolds & McArthur, W. Carl Reynolds, Bradley J. Survant, for appellants.

Jones, Cork & Miller, Thomas C. Alexander, for appellees.

Lang therefore presented some evidence that Lt. Cameron acted with reckless disregard for proper law enforcement procedures at the time of the incident. Because a genuine issue of material fact exists, the trial court erred in granting summary judgment to Lt. Cameron.

Judgment affirmed in part and reversed in part.

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


author: Johnson, Chief Judge.

text:
    A00A0283.
    WADKINS v. SMALLWOOD et al.
    (530 SE2d 498)
   Johnson, Chief Judge.

Katina Wadkins claimed the owners of a duplex apartment, Michael and Josie Smallwood, were responsible for her injuries and her child’s death in a fire because they failed to maintain and inspect the “hard-wired” smoke detector in the apartment and failed to install an additional battery-operated smoke detector. Her claims were tried before a jury, which found for the Smallwoods. Wadkins appeals from the judgment entered upon the jury’s verdict. For reasons which follow, we affirm.

The evidence showed that in 1988 the Smallwoods agreed to offer their duplex to low-income families in conjunction with the federal Section VIII housing program. In exchange for leaving the duplex in the federal program for at least ten years, the Smallwoods obtained federal aid to renovate the two apartments in the duplex. The Columbus Housing Authority hired a contractor to renovate the apartments, which included the installation of a hard-wired smoke detector hooked into the apartments’ electrical system. The deal included a continuing arrangement whereby the Housing Authority would periodically inspect the apartments, and the Smallwoods agreed to make any repairs the Housing Authority deemed necessary. No evidence suggested the Smallwoods ever failed to make any repairs requested by the Housing Authority.

The jury was informed of the following regulations regarding the hard-wired smoke detector: (1) federal regulation 24 CFR § 882.109 (r) (1) required that after October 1992 Section VIII housing “must include at least one battery-operated or hardwired smoke detector in proper working condition on each level of the emit.” In addition, the City of Columbus building code required that apartments be provided with an approved smoke detector installed in accordance with the manufacturer’s recommendation and listing.

The evidence showed that the Smallwoods were never told that the hard-wired detector might not be functioning. In fact, a tenant who lived in the apartment prior to Wadkins told them the smoke detector was a nuisance because it would go off when there were too many people smoking in the apartment. Evidence indicated there was power to the hard-wired smoke detector the day before the fire because the doorbell, which operated on the same electrical system, was working properly. While this particular brand of hard-wired smoke detector was actually recalled in 1993 by the manufacturer, the Smallwoods were never informed of this recall.

A 1994 Georgia law called for the installation of battery-operated smoke detectors in apartments. However, the Smallwoods were unaware of the law and were never told that they needed to comply with it. It is undisputed that no battery-operated smoke detector was ever installed in Wadkins’ apartment.

Wadkins and her children moved into the apartment in August 1994. On the night of the fire, Wadkins put her children to bed in the living room and retired to a back bedroom down the hallway where the smoke detector was installed. Another adult who also lived in the apartment stayed up and watched television in the living room. He was a cigarette smoker. About 3:00 a.m., Wadkins was awakened by the sound of children giggling. She went to check on them and noticed an orange glow and heard popping sounds in the living room. She woke the adult in the living room, who awoke two other adults in another bedroom.

One of the adults testified that when he entered the hallway, he saw an orange glow but did not smell or notice any smoke. He saw the fire in the living room. Wadkins took two of her three children outside, then returned to her bedroom, put on a pair of pants and left the house. The other adults had entered and exited the house several times, when Wadkins realized her three-year-old child was missing. She was injured as she tried to enter the living room window to look for her son. The child’s body was later found in a corner of the living room.

A fire investigator testified that the fire began on the couch, apparently from children playing with a lighter or with matches. He further testified that since one of the adults did not smell or notice smoke in the hallway, it was possible that even a functioning smoke detector would not have been activated.

1. Wadkins wanted to introduce evidence at trial showing that not only did the Smallwoods fail to install a battery-operated smoke detector as required by statute, but they also failed to maintain such a smoke detector in good working order as required by another section of the statute. She contends the trial court erred in granting the Smallwoods’ motion for partial summary judgment prohibiting the introduction of evidence of the landlord’s failure to maintain a battery-operated smoke detector. Relying on OCGA § 25-2-40, the trial court’s order on the Smallwoods’ motion permitted Wadkins to prove that the Smallwoods were required to install a battery-operated smoke detector but specifically prohibited any evidence that the Smallwoods were required to maintain the battery-operated smoke detector in good working order. We agree with the trial court’s interpretation of OCGA § 25-2-40.

Two subsections of OCGA § 25-2-40 are applicable in this case. OCGA § 25-2-40 (a) (2) provides that after July 1994,

every dwelling and every dwelling unit within an apartment . . . shall have installed an approved battery operated smoke detector which shall be maintained in good working order unless any such building is otherwise required to have a smoke detector system pursuant to Section 25-2-13.

However, contrary to Wadkins’ contention, evidence of the Smallwoods’ failure to maintain the battery-operated smoke detector is not admissible in a civil case. Subsection (g) of the same statute specifically states:

Failure to maintain a smoke detector in good working order in a dwelling ... in violation of this Code section shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person . . . and shall not diminish any recovery for damages arising out of the ownership, maintenance, or occupancy of such dwelling. . . .

Wadkins cites numerous statutes and cases which prohibit landlords from avoiding duties created by statutes and housing codes. However, none of these statutes and only two of the cases specifically deal with smoke detectors. And all of her citations except the two cases dealing with smoke detectors predate the enactment of OCGA § 25-2-40 (g). Furthermore, Wadkins admits that in one of the cases that do deal with smoke detectors and postdates the enactment of OCGA § 25-2-40, this particular statute was not at issue. And, while the other case specifically held that “[w]hether or not the lack of a smoke detector delayed [the victim’s] rescue and contributed to his injuries is a jury question,” it further noted, as in this case, that “[t]he fault herein involved is the failure to insure the existence of a smoke detector, not its maintenance.”

Wadkins further argues that the OCGA § 25-2-40 (g) exclusion must be held to apply to tenants but not landlords. However, the clear words of the statute belie this argument. While OCGA § 25-2-40 (a) (2) requires the installation and maintenance of a battery-operated smoke detector, OCGA § 25-2-40 (f) calls for a fine of up to $25 for any occupant who fails to maintain the smoke detector. The legislature chose in subsection (g) to declare that the failure to maintain the smoke detector shall not be considered evidence of negligence and shall not be considered by the court on any question of liability. They did not limit this exclusion to tenants.

Wadkins claims that OCGA § 25-2-40 (g) is illegal and violates public policy. However, she does not contest the constitutionality of the statute. Instead, she contends that the landlord’s general statutory and common law duties override this statute. It is well established that specific statutes govern over more general statutes where they are in conflict. And because subsection (g) was enacted more recently than the older statutes, it controls because the legislature is presumed to know what the existing law was at the time and the effects of this change. The trial court did not err in granting the Smallwoods’ motion for partial summary judgment to preclude evidence of their failure to maintain a battery-operated smoke detector in good working order under OCGA § 25-2-40.

2. The trial court did not err in admitting evidence of Wadkins’ claims against BRK Electronics, the manufacturer of the hard-wired smoke detector. The trial court is vested with wide discretion in determining the relevancy and materiality of evidence, and admission is favored in doubtful cases. This court will not interfere with the trial court’s determination unless the trial court abuses its discretion.

The record shows that Wadkins sued BRK Electronics in a separate suit, alleging the smoke detector was defective and caused her injuries and her son’s death. In the present case, the Smallwoods were entitled to have the jury determine the proximate cause of Wad-kins’ injuries and her son’s death. This would include presenting evidence showing that Wadkins blamed the incident on BRK Electronics and its allegedly defective smoke detector.

3. At the conclusion of the evidence, Wadkins moved for a directed verdict on the issue of the Smallwoods’ liability, claiming she was entitled to a directed verdict because the Smallwoods did not install a battery-operated smoke detector as required by OCGA § 25-2-40 and did not maintain the hard-wired smoke detector as required by federal regulation. According to Wadkins, since neither she nor her son caused the fire and since the Smallwoods failed to comply with smoke detector statutes and regulations, she was entitled to a directed verdict on the issue of liability. We disagree.

Whether the lack of a smoke detector caused Wadkins’ injuries and her son’s death is a jury question. Furthermore, there was evidence in the case suggesting that even if the smoke detectors were installed and working, they would not have prevented Wadkins’ injuries or her son’s death. One of the adults in the apartment stated that he saw the fire but neither saw nor smelled smoke. The fire investigator testified that it was possible that even a functioning smoke detector would not have activated since some fires involve flame and very little smoke.

Evidence was also presented that Wadkins had time to get two of her children out of the house, return to the house to put on a pair of pants, and return outside before she noticed her son was missing. Two other adults also exited and reentered the house a number of times. Wadkins received her injuries when flames erupted as she stood near the front window of the duplex.

Under these circumstances, there was sufficient evidence that the alleged failure of the hard-wired smoke detector and the absence of a battery-operated smoke detector did not contribute to the injuries. Both negligence and proximate cause must be present before liability arises. Regardless of the existence of a functioning smoke detector, the evidence does not prove that the absence of such a warning device was the proximate cause of the tragedy in this case. Clearly, Wadkins and the other adults did not sleep through the fire and had sufficient time to remove other children from the apartment and reenter the apartment several times. The trial court did not err in denying Wadkins’ motion for a directed verdict.

4. Based on the reasons stated in Division 3, the trial court committed no error in denying Wadkins’ motion for judgment notwithstanding the verdict or motion for new trial premised on the same arguments as her motion for a directed verdict.

5. Wadkins claims the trial court erred in not giving several of her requested charges. At the outset we note that Wadkins combines two enumerations of error, which include the trial court’s failure to give fourteen requests to charge, into a three-page argument which contains little citation of authority. Despite the generalized argument and lack of authority, we have reviewed each of Wadkins’ claimed errors and have determined that no reversible error exists because in each instance the requested charge involved a principle substantially covered in the court’s general charge, was not adjusted to the evidence, or was argumentative.

It is well established that jury instructions must be read and considered as a whole in determining whether the charge contained error. Moreover, a trial court does not err in refusing to give a requested charge that is not legally accurate and adjusted to the evidence.

A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased so as to have the tendency to confuse and mislead the jury or to becloud the issues in the case.

(a) Wadkins first contends the trial court erred in not reading her request to charge no. 2 to the jury. This request is a ten-page charge entitled “Plaintiff’s Contentions.” A reading of the requested charge shows that the contentions are argumentative and include phrases such as “frantic screams of her son,” and “horrendous personal injuries and excruciating pain and suffering.” The charge also includes detailed assertions which constitute impermissible comments on the evidence and arguably invade the province of the jury in directing findings of fact.

The trial court did not err in refusing to give this charge because it is inadequate, is merely a statement of Wadkins’ contentions, and is an incomplete and inaccurate statement of the law. A trial court does not err in failing to give a requested charge if any portion of the requested charge is inapt, incorrect, misleading, confusing, argumentative, not precisely adjusted or tailored, or not reasonably raised or authorized by the evidence.

Moreover, even if the requested charge is considered appropriate, failure to give it in the exact language requested is not reversible error because the trial court accurately and fully charged the relevant law. Here, the trial court charged the jury regarding Wadkins’ claims, the burden of proof, the allegations of negligence, the alleged violations of statutes and regulations, the landlord’s duties, and damages. The trial court also explained the verdict form to the jury. The trial court’s language was less confusing and less argumentative than the requested charge. A requested charge is properly refused when the principles involved are substantially covered in the court’s general charge. Accordingly, the trial court did not err by refusing to give the ten-page requested charge.

(b) The trial court did not err in failing to give Wadkins’ request to charge no. 3 since the trial court’s charge fully covered the principles contained in her request. Wadkins’ request to charge no. 3 contains a verbatim recitation of OCGA § 51-1-8, which deals with the creation of private duties from statute or contractual relations. The trial court fully charged the jury regarding the statutory and common law duties on which Wadkins based her claims. This charge was substantially covered in the trial court’s general charge to the jury. Thus, it was not error for the trial court to refuse to charge the exact language requested.

(c) Wadkins’ request to charge no. 11 is a quote from the Georgia Law of Torts regarding holding the Smallwoods to a higher standard of care with regard to children. This charge was inappropriate and confusing given the issues of the case: whether the absence of a battery-operated smoke detector or the alleged absence of a working hard-wired smoke detector caused Wadkins’ injuries and the death of her son. Furthermore, if the object of Wadkins’ requested charge was to show that the child could not appreciate the danger, the trial court covered this charge by charging the jury that the child was “conclusively presumed incapable of negligence” and that no negligence of his mother could be imputed to him. The trial court did not err in refusing to give Wadkins’ requested charge.

(d) Wadkins claims the trial court erred in refusing to charge the jury regarding the distraction theory. However, the distraction theory did not apply in this case. No evidence suggests that the Small-woods distracted Wadkins either before or during the fire. This requested charge was not tailored to the evidence.

(e) Wadkins’ request to charge no. 13 informs the jury that the negligence of a parent, which is not attributable to the child, cannot be used as a defense to any negligence of the defendants. The principle underlying this request was fully covered by the trial court in its general charge.

(f) Wadkins’ request to charge no. 15 informs the jury of the purpose of a smoke detector and states that whether the lack of a functioning smoke detector delayed the child’s rescue and contributed to his injuries is a jury question. The trial court gave this portion of the requested charge. The trial court did not err in refusing to give the remainder of the requested charge, which merely repeated the first portion of the charge in a suggestive and argumentative fashion. A trial court never errs in refusing to give an argumentative instruction.

(g) Wadkins’ request to charge no. 16 discussed the Smallwoods’ general duties as landlords. The trial court amply covered these principles when it charged the jury as to the landlord’s duties and the purpose of the smoke detector.

(h) Wadkins’ request to charge nos. 17 and 18, regarding the state’s public policies to prevent unsafe low-income housing and in favor of landlord liability, were properly refused. The requests to charge were cumulative of the trial court’s charge. Moreover, “|j]ury instructions should set forth objective legal principles to be applied by the jury in making its determination, and should not include language used by an appellate court to explain the rationale of a legal principle.”

(i) In her request to charge no. 23, Wadkins requested that the trial court charge the jury with OCGA § 25-2-40 (a) (2), which deals with the landlord’s duty to install and maintain a battery-operated smoke detector. For the reasons stated in Division 1, the trial court properly refused to permit evidence regarding the Smallwoods’ failure to maintain a battery-operated smoke detector. Moreover, the trial court did charge the jury regarding the Smallwoods’ duty to install a battery-operated smoke detector. The trial court properly refused to give the requested charge.

(j) Wadkins’ request to charge nos. 29, 31, and 35 all contain principles of law applicable to standard premises liability cases, such as slip-and-fall cases. She makes no argument showing why these requests were warranted. Moreover, to the extent these principles might apply, the principles are more specifically covered by landlord and tenant law, and the trial court fully covered those principles in its charge regarding the duties of the landlord and tenant.

(k) Wadkins’ request to charge no. 42 is a detailed charge on the computation of damages for the wrongful death of her son. Since the jury returned a verdict in favor of the Smallwoods, any alleged error in the charge on damages is harmless.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

On Motion for Reconsideration.

Wadkins has raised several contentions on motion for reconsideration, one of which we find necessary to address. She argues that we overlooked the material fact that she brought an action on behalf of her deceased son for his personal injuries and that facts relating to the negligence of her or others are not imputable to the child. Wad-kins’ allegation is a correct statement of the law which we did not overlook. The trial court properly denied Wadkins’ motion for a directed verdict of liability in her son’s personal injury case based on evidence in the case suggesting that even if the smoke detectors had been installed and working, they would not have prevented Wadkins’ son’s injuries.

As we stated in Division 3 of the opinion, regardless of the existence of a functioning smoke detector, the evidence does not prove that the absence of such a warning device was the proximate cause of the tragedy in this case, including Wadkins’ son’s injuries and ultimate death. One of the adults in the apartment stated that he saw the fire but neither saw nor smelled smoke. The fire investigator testified that it was possible that even a functioning smoke detector would not have activated since some fires involve flame and very lit-tie smoke. Evidence that the alleged failure of the hard-wired smoke detector and the absence of the battery-operated smoke detector did not contribute to her son’s injuries was sufficient to send the case to a jury on the issue of the Smallwoods’ liability.

Decided March 3, 2000

Reconsideration denied March 27, 2000

James D. Patrick, Jr., for appellant.

Self, Mullins, Robinson, Marchetti & Kamensky, Ronald W. Self, for appellees.

       OCGA § 25-2-13 is not applicable to the facts of this case.

       See OCGA §§ 44-7-2 (b) (3); 44-7-13; 44-7-14; 51-3-1; see also Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989).

        Denise v. Cannon, 219 Ga. App. 765 (466 SE2d 885) (1996).

        Housing Auth. &c. of Atlanta v. Jefferson, 223 Ga. App. 60, 61-62, n. 2, 62 (2) (476 SE2d 831) (1996).

       See Glinton v. And R, Inc., 271 Ga. 864 (524 SE2d 481) (1999); Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592 (2) (436 SE2d 219) (1993).

       See Glinton, supra; Mikell v. State, 270 Ga. 467, 468 (510 SE2d 523) (1999).

        Cook v. Partain, 224 Ga. App. 251, 252 (1) (480 SE2d 279) (1997).

       Id.

       See id.; see generally Wilkerson v. Alexander, 208 Ga. App. 83, 86 (2) (429 SE2d 685) (1993).

        Jefferson, supra at 62.

        Wilkerson, supra at 86 (2).

       See Spicewood, Inc. v. Dykes Paving &c. Co., 185 Ga. App. 397, 399 (4) (364 SE2d 298) (1987).

        Lucas v. Love, 238 Ga. App. 463, 464 (3) (519 SE2d 253) (1999).

       Id.

       (Citations and punctuation omitted.) Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 147 (4) (497 SE2d 275) (1998).

       See Valdez v. Power Indus. Consultants, 215 Ga. App. 444, 447-448 (3) (451 SE2d 87) (1994).

       See Petkas v. Grizzard, 253 Ga. 407, 408 (321 SE2d 323) (1984).

        Roberts v. Chapman, 228 Ga. App. 365, 367 (2) (492 SE2d 244) (1997).

        Petkas, supra.

        Shaw v. McDonald’s Restaurants of Ga., 191 Ga. App. 583, 585 (2) (382 SE2d 632) (1989).

       See Roswell Properties v. Salle, 208 Ga. App. 202, 207 (8) (430 SE2d 404) (1993); Ins. Co. of North America v. Smith, 189 Ga. App. 353, 357 (4) (375 SE2d 866) (1988).

       Adams & Adams, Ga. Law of Torts (1998 ed.), § 3-8 (b), pp. 98-100.

       See Morris v. State Farm. &c. Ins. Co., 203 Ga. App. 839, 840 (3) (418 SE2d 119) (1992).

       (Citation omitted.) Bishop v. State, 271 Ga. 291, 293-294 (5) (519 SE2d 206) (1999).

       See Henry v. Watkins, 219 Ga. App. 80, 81 (2) (464 SE2d 215) (1995); Intl. Images v. Smith, 171 Ga. App. 172, 175 (2) (318 SE2d 711) (1984).


author: Eldridge, Judge.

text:
    A00A0565.
    RICE v. THE STATE.
    (531 SE2d 182)
   Eldridge, Judge.

On December 16, 1998, Donny Eugene Rice was convicted of two counts of sexual exploitation of a child, sodomy, and aggravated child molestation. His motion for new trial was denied on September 7, 1999, and he appeals therefrom. Finding no error, we affirm.

1. In his first two enumerations of error, Rice claims that, by charging the jury with the entire statutory language of the indicted offenses of (a) aggravated child molestation and (b) aggravated sodomy, the trial court charged the jury that the offenses could be committed in a manner not specifically alleged under Counts 4 and 5 of the indictment. We disagree.

(a) Rice was indicted for aggravated child molestation under Count 5 in that he committed an act of oral sodomy on the five-year-old victim. The indictment alleged that Rice

did unlawfully then and there an immoral and indecent act to and in the presence of and with [the victim] with the intent to arouse and satisfy the sexual desires of the accused and the child, said act involving the mouth of the accused and the sexual organ of [the victim].

In support of this count, the State presented evidence of the victim’s outcry to Susan Campbell, Director of Harbor House, a child advocacy center. The victim’s outcry included several instances of sexual abuse, including an incident of oral sodomy, as follows in pertinent part:

[Campbell:] Okay. When Johnny — Johnny, when Donny
[Rice] touched your private with his hand what did he do that time?
[Victim:] Suck it.
[Campbell:] He did what?
[Victim:] He sucked it.
[Campbell:] He sucked it? Okay. What part of his body did he use when he was sucking it?
[Victim:] His mouth.

There was no evidence of force or physical injury with regard to this instance of oral sodomy.

At the close of evidence, the trial court instructed the jury with the statutory definition of sodomy in that “[a] person commits the offense of sodomy when the person performs or submits to any sexual act involving the sex organ of one and the mouth or anus of another.” Thereafter, the court charged the statutory definition of child molestation and aggravated child molestation:

A person commits the offense of child molestation when such person does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. [OCGA § 16-6-4 (a).] A person commits the offense of aggravated child molestation when such person commits the offense of child molestation which act physically injures the child or involves an act of sodomy. [OCGA § 16-6-4 (c).]

Rice contends that, because the court charged under subsection (c) that an “aggravated” act of child molestation must either physically injure the child or involve an act of sodomy, the jury could have found Rice guilty for physically injuring the child — as opposed to the act of oral sodomy specifically alleged in the indictment. This contention is meritless.

Subsection (a) of the statute defines an act of child molestation, i.e., any immoral or indecent act to or in the presence or with any child under the age of 16 years committed with the intent to arouse or satisfy sexual desires. Here, the indicted act of child molestation was Rice’s placing of his mouth on the penis of the victim. Subsection (c) of the statute defines when an indicted act of child molestation may be considered “aggravated,” i.e., when the indicted act either injures the child or involves sodomy. In this case, the evidence in aggravation was that the indicted act of child molestation was one of oral sodomy. There is absolutely no evidence in the record that, during the incident when Rice placed his mouth on the victim’s penis, the victim was physically injured. By finding the indicted act of child molestation, the jury perforce found the appropriate evidence in aggravation, since the indicted act of child molestation was also an act of oral sodomy. “Therefore, the giving of the entire Code section on aggravated [child molestation] did not mislead the jury or violate [Rice’s] due process rights.” Thomas v. State, 268 Ga. 135, 141 (17) (485 SE2d 783) (1997).

(b) Under Count 4, Rice was indicted for aggravated sodomy in that he “did unlawfully then and there perform and submit to a sexual act involving the sexual organs of the accused and the anus of another person, to-wit: [the victim] . . . said act being done with force and against the will of said other person.” In support of this count, the State offered the outcry testimony of the victim regarding Rice’s forceful sodomy of his anus, pictures of the physical injuries to the victim’s anus caused thereby, and numerous outcry witnesses and expert testimony with regard thereto. After the close of evidence, the trial court charged the jury with the act as alleged in the indictment under Count 4, i.e., forceful anal sodomy. The court instructed the jury on the statutory definition of aggravated sodomy:

In Count 4, the defendant is charged with the offense which describes the allegations which describe aggravated sodomy. A person commits the offense of sodomy when the person performs or submits to any sexual act involving the sex organ of one and the mouth or anus of another. A person commits the offense of aggravated sodomy when the person commits sodomy with force and against the will of the other person.

Before this Court, Rice contends that by charging the entire statute, the trial court charged the jury that they could convict “if Appellant performed or submitted to any sex act involving the sex organ of one and the mouth or anus of another,” and thus, Rice could have been convicted under Count 4 for committing oral sodomy on the victim. This contention is meritless.

The trial court did not instruct the jury to ignore the indictment and convict if appellant performed or submitted to “any sex act” involving sodomy. To the contrary. Prior to charging the statutory elements, the trial court instructed the jury that the offense of aggravated sodomy was as described in Count 4 of the indictment: “In Count 4, the defendant is charged with the offense which describes the allegations which describe aggravated sodomy.” The allegations in Count 4 described forceful anal sodomy. In addition, the court charged that the State must prove all of “the elements set forth in the various allegations of the counts.” The court charged the jury that “[t]he burden of proof rests upon the state to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” The court also charged that only after consideration of all the facts and testimony in regard to the counts as set out in the indictment may they return a verdict thereon. The jury was instructed they must “consider separate and independent verdicts on each of the four counts.” The jury specifically found Rice guilty under Count 4 of the indictment. These instructions were “sufficient to dispel any possible juror confusion about the necessity of convicting [Rice] for the act[ ] charged in the indictment.” McClain v. State, 220 Ga. App. 474, 475 (2) (469 SE2d 756) (1996).

2. In his third enumeration, Rice alleges reversible error in the trial court’s failure to charge an “essential element” of the offense of sexual exploitation of children by giving the statutory definition of “sexually explicit conduct.”

“Sexually explicit conduct” is an essential element of the offense of sexual exploitation of children, but the statutory definition is not. See Phagan v. State, 268 Ga. 272, 277 (486 SE2d 876) (1997); Brown v. State, 233 Ga. App. 195, 197 (504 SE2d 35) (1998). Here, the trial court properly charged the jury on the elements of the statutory offense. OCGA § 16-12-100 (b) (l). The indictment properly charged Rice with the type of “sexually explicit conduct” defined under OCGA § 16-12-100 (a) (4) (F) (condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude). Rice does not allege the existence of any other form of “sexually explicit conduct” that fits within the statutory purpose, i.e., “for the purpose of producing any visual medium depicting such conduct.” So, there could be no jury confusion on this issue. Nor does Rice demonstrate how the instant claim constitutes substantial error which was harmful as a matter of law, so as to require our review under OCGA § 5-5-24 (c). Medina v. State, 234 Ga. App. 13, 15 (2) (505 SE2d 558) (1998). Rice’s counsel failed to object to the charges at trial and failed to reserve objections following the charge. Accordingly, this enumeration of error is waived.

3. In his remaining enumeration, Rice claims that his trial counsel was ineffective for several reasons.

A defendant claiming ineffective assistance of counsel must show (1) that his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.

(Citations and punctuation omitted.) Harris v. State, 234 Ga. App. 126, 129 (3) (505 SE2d 49) (1998). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Austin v. Carter, 248 Ga. 775, 779 (2) (c) (285 SE2d 542) (1982). In fact,

there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.

(Citation and punctuation omitted.) Hamilton v. State, 238 Ga. App. 320, 322 (517 SE2d 118) (1999). “Whether an attorney’s trial tactics are reasonable ‘is a question of law,’ not fact. [Cit.]” Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993). The trial court’s findings on issues of reasonableness and credibility “will be upheld unless clearly erroneous, as will its ultimate determination whether the defendant received effective assistance of counsel.” (Citations and punctuation omitted.) Griffith v. State, 234 Ga. App. 326, 329 (2) (506 SE2d 676) (1998).

Although Rice’s motion for new trial stated simply that trial counsel provided ineffective assistance, appellate counsel was given the opportunity to argue numerous bases for the ineffectiveness claim during the motion for new trial hearing. However, after finding that each complaint of alleged ineffectiveness lacked merit, the trial court specifically rejected the ineffectiveness claim in a comprehensive order denying Rice’s motion for new trial. After reviewing the hearing transcript, we are satisfied “that the trial court’s findings and its determination that trial counsel was not ineffective are not clearly erroneous.” Griffith v. State, supra at 329 (2).

(a) As noted by the trial court, Rice’s claim that trial counsel failed to file various pretrial evidentiary motions is entirely without merit. In the original indictment in this case, Rice was the sole defendant. However, Regina Loveless, the children’s .mother, was subsequently added as a co-defendant in a superseding indictment. The record clearly shows that Rice’s counsel filed his evidentiary motions based upon the earlier indictment and that he took advantage of his complete access to all of the State’s files after that point. As such, the trial court found that counsel was not ineffective for any alleged failure to file such motions pursuant to the second, superseding indictment. There was no error. See Harris v. State, supra.

(b) Rice claims that trial counsel was ineffective for failing to cross-examine the child victims. Rice claims that the older victim recanted some of his testimony during his mother’s subsequent criminal trial and implies that the child might have recanted his testimony in Rice’s trial if he had been properly cross-examined.

However, the trial court in this case took judicial notice that, despite such alleged recantation, the victims’ mother was still convicted at trial. As such, the trial court concluded that the failure to cross-examine the child victims did not affect the outcome of Rice’s trial. This finding was not clearly erroneous.

(c) Finally, Rice claims that his trial counsel refused to allow him to testify in his own behalf. However, his counsel unequivocally testified at the motion hearing that he never prohibited Rice from testifying. Counsel also testified that Rice said that he did not want to be subjected to cross-examination, particularly since his denial of all charges was presented to the jury through the testimony of Detective Ken Jones. After hearing Rice’s claims and counsel’s explanations, the trial court specifically found that Rice’s assertion that he was wrongfully prevented from testifying was not credible. Such finding was not clearly erroneous and will not be disturbed. Griffith v. State, supra.

Judgment affirmed.

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

Decided March 14, 2000

Reconsideration denied March 27, 2000

Cook & Connelly, Bobby Lee Cook, L. Branch Connelly, Rex B. Abernathy, for appellant.

Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

       Although not preserved in the court below, we are constrained to reach this specific issue through the assertion of OCGA § 5-5-24 (c), since we have previously decided that such variation between indictment and jury charge may result in a due process violation. See, e.g., Gresham v. State, 239 Ga. App. 280, 281 (521 SE2d 207) (1999).

       By citing to different portions of the victim’s outcry testimony to Campbell, Rice attempts to establish that the victim also experienced “physical injury” during this indicted act of oral sodomy. For example, Rice cites to trial transcript pages 92, 94, and 102 for the proposition that Rice “whipped” the victim; then cites page 98 for the proposition that the victim’s pants were down at the time of the “whipping”; and then cites page 97 for the proposition that Rice’s hand was on the victim’s penis during this “whipping.” However, a review of the record shows that these were unrelated incidents and did not involve the indicted act of child molestation, i.e., Rice’s oral sodomy of the victim. Moreover, the record shows that Rice’s “whipping” of the victim with a “paddle” was the victim’s euphemism for the acts of anal sodomy that Rice committed on him.

       “It is unlawful for any person knowingly to employ, use, persuade, induce, entice, or coerce any minor to engage in or assist any other person to engage in sexually explicit conduct for the purpose of producing any visual medium depicting such conduct.” OCGA § 16-12-100 (b) (1).

       Although this trial originally included Loveless as Rice’s co-defendant, the trial court declared a mistrial as to Loveless after inappropriate testimony was given regarding Loveless’ criminal history. The trial court sua sponte instructed the jury that they should not allow such mistrial to affect how they viewed the remaining case against Rice.


text:
    A00A0782.
    BARNES v. GREATER GEORGIA LIFE INSURANCE COMPANY.
    (530 SE2d 748)
   Johnson, Chief Judge.

Leila Barnes sued Greater Georgia Life Insurance Company when it failed to pay accidental death benefits under her son’s life insurance policy. Greater Georgia Life moved for summary judgment, contending accidental death benefits were excluded because the deceased was killed while driving under the influence of alcohol. The trial court granted Greater Georgia Life’s motion for summary judgment, and Barnes appeals. Because driving under the influence of alcohol is a crime which falls within the exclusion in the group policy at issue, we affirm.

The facts in the present case are undisputed. James Ford was insured under a group life insurance policy issued by Greater Georgia Life, and Barnes was the named beneficiary of the life insurance policy. While driving, Ford began to swerve and then drive on the wrong side of the road. Despite attempts from another motorist to flash his lights and warn Ford he was on the wrong side of the road, Ford continued and collided head-on with a car being driven in the opposite direction. Ford was killed. Blood and urine samples drawn at the hospital indicated a blood alcohol level of 0.27 grams and the presence of marijuana in Ford’s blood.

Greater Georgia Life paid Barnes life insurance proceeds under the policy. However, it refused Barnes’ request for an equal additional sum of proceeds under the accidental death provision of the policy. This denial was based on language in the accidental death portion of the policy which states: “The Insurer will not pay for any loss caused directly or indirectly, wholly or partly, by: . . . committing, or attempting to commit a crime.” Barnes contends the trial court erred in applying this exclusion and granting summary judgment to Greater Georgia Life.

1. Barnes argues that the trial court erred in granting Greater Georgia Life’s motion for summary judgment because a question of material fact exists regarding whether the “crime” exclusion in the life insurance policy is ambiguous. We disagree.

The construction of an insurance contract is a matter of law for the court. When an exclusion is unambiguous and capable of but one reasonable construction, the trial court must expound the contract as made by the parties. “Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage.”

The word “crime” is unambiguous. “Ambiguity is duplicity, indistinctness, an uncertainty of meaning or expression. A word or phrase is ambiguous when it is of uncertain meaning and may be fairly understood in more ways than one.” Since the word “crime” is plain and obvious, it must be given its literal meaning.

“A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” The plain and ordinary meaning of the word “crime” includes any violation of the law for which punishment may be imposed. While Barnes cites a Sixth Circuit case finding the word “crime” ambiguous because the insured is more likely to understand the word to mean burglary, armed robbery or murder than drunk driving, we are not persuaded by this case. Having selected and received the benefits of a group policy, Ford must therefore be bound by its terms.

2. Barnes next contends that the trial court erroneously granted the insurance company’s motion for summary judgment because there is a question of material fact concerning whether Ford’s acts constitute a crime in the context of the life insurance policy. We find no error.

Based on the undisputed evidence, Ford violated OCGA § 40-6-391 (a) (5) when he drove his car with a blood alcohol level of 0.27 grams. The violation of this statute is a crime. Moreover, the Supreme Court of Georgia has previously held: “The notice that driving under the influence of alcohol is a crime is adequate.” And this court has previously held that driving under the influence of alcohol is a crime of general, not specific, intent; the only intent required is proof of the commission of the act itself. Thus, it is clear that driving under the influence of alcohol is a crime and that one who commits it can reasonably foresee that he will bear the consequences of a crime. The trial court did not err in granting Greater Georgia Life’s motion for summary judgment.

Decided March 9, 2000

Reconsideration denied March 27, 2000.

Adams & Jordan, Donald J. Jordan, Cedric B. Davis, for appellant.

Michael R. Hurst, for appellee.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

        Jenkins v. Lanigan, 196 Ga. App. 424, 425 (1) (396 SE2d 28) (1990).

        Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385, 388 (2) (414 SE2d 521) (1991).

       (Citation omitted.) Burnette v. Ga. Life &c. Ins. Co., 190 Ga. App. 485 (1) (379 SE2d 188) (1989).

       (Citations and punctuation omitted.) Jefferson Pilot, supra at 387 (2).

       OCGA § 16-2-1.

       See American Heritage Dictionary of the English Language (3rd ed. 1996), p. 441; Merriam Webster’s Collegiate Dictionary (10th ed. 1993), p. 274.

        American Family Life Assurance Co. v. Bilyeu, 921 F2d 87 (6th Cir. 1990).

        Jefferson Pilot, supra at 388.

        Head v. State, 246 Ga. 360, 362 (3) (271 SE2d 452) (1980).

        Prine v. State, 237 Ga. App. 679, 680 (2) (a) (515 SE2d 425) (1999).


author: Miller, Judge.

text:
    A99A1888.
    A99A1889.
    MARKOWITZ et al. v. WIELAND et al. JOHN WIELAND HOMES, INC. v. MARKOWITZ et al.
    (532 SE2d 705)
   Miller, Judge.

. Jacob and Charlene Markowitz sued John Wieland, John Wieland Homes, Inc., Wieland Realty Associates, Inc., and Jeff Akin (collectively the “Wieland Group”) alleging conspiracy to defraud, breach of contract, and Georgia Racketeer Influenced & Corrupt Organizations Act (“RICO”) violations. The Wieland Group moved for summary judgment, arguing (1) that the Markowitzes did not prove the alleged predicate acts necessary to establish a RICO violation, (2) that the merger clause in the sales contract precluded any claim of fraud, and (3) that they did not breach the contract provisions as alleged. The trial court granted summary judgment in favor of the Wieland Group on the fraud and RICO claims but denied their motion for summary judgment on the breach of contract claim against John Wieland Homes. John Wieland Homes and the Markowitzes appeal.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The Wieland Group as the movants 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.

Viewed in this light, the relevant facts are as follows. The Markowitzes, desiring to purchase a home, paid a $2,000 deposit to select a lot in a subdivision where John Wieland Homes was the builder. They subsequently selected lot 13 and engaged in discussions with a representative of John Wieland Homes, Jeff Akin, as to the future location of the amenities. They were given two maps which showed the amenity area without notations of the lots, one subdivision map that had “amenity area” typed below lots 13 and 14, and another subdivision map which indicated the lots without reference to the amenity area. Akin assured them that the amenities would not be located behind their lot but would be behind adjacent lot 14 and completely out of view from their property. After this assurance, the Markowitzes signed the contract and purchased the home.

More than a year later, the amenity area was constructed behind the Markowitzes’ home. The parking lot and the cabana were expanded, and the entire amenity area was shifted closer to their home. The Markowitzes were subject to noise, headlights from cars, trash behind their home, and a lack of privacy. The Markowitzes also contend that John Wieland Homes failed to repair certain items under warranty, including paint on the siding of the home, and that it used inferior grade lumber.

Case No. A99A1888

1. The Markowitzes argue that defendant Akin’s representations induced them to enter into the sales agreement. They also claim that the subdivision lot map was a fraudulent misrepresentation because when shown to them at closing, it did not show notice of a pool, parking area, or cabana that was to be located behind their property.

The Wieland Group points to paragraph 28 of the contract, which states:

Purchaser acknowledges that current development plans for this community are subject to change without notice and no guarantees are made that any of the components presently proposed will be part of the development, or that additional components will not be added to the development. If some or all of such components are provided, no guarantees are made as to the date of availability for use or that current plans will accurately reflect actual construction. The provisions of this paragraph shall survive this agreement.

The contract also provides that:

This contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. NO REPRESENTATION, PROMISE, OR INDUCEMENT NOT INCLUDED (WHETHER MADE BY AN AGENT OR REPRESENTATIVE OF SELLER OR OTHERWISE) IN THIS CONTRACT SHALL BE BINDING UPON ANY PARTY HERETO. The provisions of this paragraph shall survive this agreement.

They argue that paragraph 28 of the contract precluded any claim of fraud by the Markowitzes and that Akin never represented the exact location of the amenities. They further argue that the map to which the Markowitzes refer was not part of the contract and that the lot diagram attached to the contract plainly shows that the amenities were to be developed behind their lot.

The tort of fraud has five elements: (1) false representation by the defendant, (2) scienter, (3) an intention to induce the plaintiff to act or to refrain from acting, (4) justifiable reliance by the plaintiff, and (5) damages. But where a purchaser affirms a contract which contains a merger or disclaimer provision and retains the purchased item, he is estopped from asserting that he relied upon the seller’s misrepresentation, and his action for fraud must fail. The presence of a merger clause in the contract is determinative if the defrauded party has not rescinded but has elected to affirm the contract. Paragraph 28 in this contract informs the purchaser that community development plans may change without notice, and the merger clause precludes any reliance on oral representations.

Although the Markowitzes attempted to negotiate a “swap” of their home for one on a more expensive lot, when this did not develop, they sued only for money damages. The Markowitzes’ reliance on Crews v. Cisco Bros. Ford-Mercury is misplaced as the plaintiffs in that case sued for rescission of contracts. Even if the request to “swap” their home for another were considered an attempted rescission, the Markowitzes sought only money damages and failed to seek rescission in their complaint. They have therefore affirmed the contract. Thus, the court did not err in granting summary judgment to the Wieland Group on the fraud claim.

2. The Markowitzes contend that there were sufficient facts to sustain a Georgia RICO violation. OCGA § 16-14-4 (a) provides that:

[i]t is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.

Georgia defines a pattern of racketeering activity as engaging in at least two interrelated acts that have the same or similar intents, results, accomplices, victims, or methods of commission indictable under certain categories of state or federal law. The Markowitzes claim that the Wieland Group committed three crimes constituting predicate acts under Georgia RICO: theft by deception, federal mail fraud, and influencing witnesses.

(a) Theft by Deception. OCGA § 16-8-3 (a) provides that a “person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” First, the Markowitzes claim that the Wieland Group deprived them of property by creating a false impression of the future location of the amenities. They claim that they relied on the Wieland Group’s representation that the amenities would be behind an adjacent lot and out of view from their property. But because the Markowitzes affirmed the contract (see Division 1), the Wieland Group correctly argues that paragraph 28 and the merger clause foreclose the Markowitzes’ claim of theft by deception since any reliance on oral representations is superseded by the words of the affirmed contract.

Second, the Markowitzes argue that they were given a warranty agreement which provided that structural defects in the home would be covered for ten years and that the Wieland Group failed to repair the defects as warranted, causing a decrease in the market value of their home. But to sustain an action for theft by deception the Markowitzes must show that the Wieland Group obtained their property. An unrealized diminution in the value of the property does not equate to the Wieland Group obtaining the property as the Markowitzes are still the owners. Therefore, the theft by deception claim fails as a predicate act.

(b) Mail Fraud. The Markowitzes contend that their receipt of a lot reservation agreement from John Wieland through the mail (for which they submitted a deposit of $2,000) constitutes mail fraud because it was part of the overall scheme to defraud. When an alleged predicate act is mail fraud, “ ‘the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme.’ ” Pretermitting whether the action meets the definition of mail fraud, the contract language precludes a showing of reliance; thus, no mail fraud can be shown.

(c) Influencing Witnesses. A person who does the following violates OCGA § 16-10-93 (a):.

A person who, with intent to deter a witness from testifying freely, fully, and truthfully to any matter pending in any court, . . . communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness. . . .

The Markowitzes claim that John Wieland Homes influenced James Griggers, a former warranty technician with the company, to recant his original affidavit in which he stated that he was instructed to minimize his reports of damage to homeowners and was taught to “roll the ball,” a method of manipulating the customer until the expiration of the warranty period. They contend that Griggers was threatened with a lawsuit and changed his testimony as a result. But we find no authority that the threat of a lawsuit amounts to conduct prohibited by OCGA § 16-10-93. We hold that such does not constitute a threat of injury or damage under the statute. Because the Markowitzes have failed to establish any of the alleged criminal violations as predicate acts, their Georgia RICO claim fails, and the court did not err in granting summary judgment on this claim.

Case No. A99A1889

3. John Wieland Homes contends the court erred in failing to grant summary judgment in their favor on the breach of contract claim. The court found that issues of fact remain as to whether John Wieland Homes breached two provisions of the contract. First, the contract provided that:

If items or materials are not available when needed, Seller may substitute items or materials of equal or better grade, in Seller’s reasonable discretion. Seller may also make substitutions of equal or better grade where such substitutions would be consistent with Seller’s general practice. Purchaser acknowledges that the color and grade of certain materials used in the home may vary from the selections made by Purchaser due to factors beyond the control of Seller. Purchaser agrees that industry standards, as determined in the reasonable exercise of Seller’s discretion, shall govern the acceptability of any particular variance. ... If Seller reasonably determines that any such variation is within industry standards, Purchaser shall be bound by such determination. Purchaser further acknowledges that Seller shall not be required to obtain Purchaser’s consent for changes, deviations or omissions to the home during construction which do not adversely affect the value of the home and which are necessitated by: action of governmental authorities; lender; FHA or VA requirements; or particular job site conditions.

The Markowitzes claim that John Wieland Homes’ use of No. 3 grade lumber instead of No. 2 grade lumber for support beams and floor joists is a breach of contract because industry standards required the better grade and that this failure to use the proper type of lumber adversely affected the value of their home. John Wieland Homes contends that it could not have breached the contract because this provision refers only to changes, deviations, or omissions from the original plans and that No. 3 grade lumber was called for by the original plans and is entirely permissible. This interpretation is not readily apparent from the contract language, which appears ambiguous. As the rules of contract construction do not resolve the ambiguity, we hold this is a jury question.

John Wieland Homes next contends that use of the No. 3 grade lumber is within industry standards, while the Markowitzes have submitted affidavits from two inspectors and an engineer, explaining that the Council of American Building Officials (CABO) code requires No. 2 grade lumber for portions of the construction at issue. To succeed on the motion for summary judgment, John Wieland Homes must show an absence of evidence to support the contention that inferior lumber was used, which they failed to do. If indeed an inadequate grade of lumber was used that established a deviation that could adversely affect the home, then it would be in breach of the contract. Thus, the court did not err in denying summary judgment to John Wieland Homes on this provision of the contract.

Decided March 27, 2000.

McKenney & Froelich, William J. McKenney, for appellants.

Alston & Bird, Robb E. Hellwig, Richard R. Hays, for appellees.

Second, an addendum to the contract provided that:

Purchaser and Seller acknowledge that John Wieland Homes will be responsible for a period of 5 years from closing date to the original owner of 4536 Rutherford Drive, for any claim against the manufacturer of siding due to inadequate paint coverage. John Wieland Homes will be responsible for. labor and material changes as deemed necessary within the 5 year period.

Charlene Markowitz testified that “the paint is wearing away and the siding is wearing away and it needs to be replaced,” and Max Croft, a home inspector, stated in his inspection report of the Markowitzes’ home that the edges of the siding do not have the recommended application of paint for protection from the elements. Because the Markowitzes háve submitted evidence creating a question of fact as to whether the deteriorating paint on the home is due to inadequate paint coverage, the court also properly denied John Wieland Homes’ motion for summary judgment on this portion of the breach of contract claim.

Judgments affirmed.

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

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

       Id.

        Buford-Clairmont Co. v. Cato Corp., 241 Ga. App. 50, 53 (2) (526 SE2d 104) (1999); Westminster Holdings, Ltd. v. Weatherspoon, 237 Ga. App. 819, 822 (2) (517 SE2d 80) (1999).

        Estate of Sam Farkas v. Clark, 238 Ga. App. 115, 118 (1) (517 SE2d 826) (1999); Roth v. Bill Heard Chevrolet, 166 Ga. App. 583-584 (305 SE2d 31) (1983).

        Owens v. Union City Chrysler-Plymouth, 210 Ga. App. 378, 379 (436 SE2d 94) (1993).

       201 Ga. App. 589 (411 SE2d 518) (1991).

       OCGA § 16-14-3 (8), (9); see Roth v. Connor, 235 Ga. App. 866, 872 (4) (510 SE2d 550) (1998).

        Estate of Sam Farkas, supra, 238 Ga. App. at 118 (1); Hamilton v. Advance Leasing &c., 208 Ga. App. 848, 850 (2) (432 SE2d 559) (1993).

        Gentry v. Volkswagen of America, 238 Ga. App. 785, 791 (4) (521 SE2d 13) (1999), quoting Pelletier v. Zweifel, 921 F2d 1465, 1499-1500 (11th Cir. 1991).

        Gentry, supra, 238 Ga. App. at 791 (4); Longino v. Bank of Ellijay, 228 Ga. App. 37, 41 (2) (491 SE2d 81) (1997).

       Cf. Rolleston v. Huie, 198 Ga. App. 49, 50-51 (2) (400 SE2d 349) (1990) (threatening civil suit does not violate OCGA § 16-8-16 nor does it state a tort claim).

       See Thornton v. Kumar, 240 Ga. App. 897, 898 (525 SE2d 735) (1999).

        Lau’s Corp., supra, 261 Ga. at 491.

       See id.


author: Pope, Presiding Judge.

text:
    A99A1898.
    JOHNSON v. ATLANTA HOUSING AUTHORITY.
    (532 SE2d 701)
   Pope, Presiding Judge.

Willie Cleve Johnson sued the Atlanta Housing Authority after he was shot while sitting on a bench outside the AHA apartment building in which he lived. Johnson alleged that AHA failed to provide reasonable means of safety and security to protect its tenants from third-party criminal acts. The trial court granted summary judgment to AHA, and Johnson appeals. We affirm.

Construed in the light most favorable to Johnson, the record shows that Johnson was shot at approximately 10:30 p.m. as he sat on a bench in front of Roosevelt House, an AHA apartment building located on Techwood Drive in Atlanta, where he lived. The bench was adjacent to a bus stop on Techwood Drive and had been installed so that apartment residents would have a place to sit while waiting for the bus. Johnson was on his way out to buy cigarettes when he stopped to talk with Anthony Pitts, another Roosevelt House resident. Johnson said they had been talking for about ten minutes before he was shot. Earlier, they had noticed a man walking past them. The first time the man passed them, Pitts noticed he was dripping with sweat even though it was a cool night, and he mentioned something to Johnson about it. Johnson testified that he did not remember whether Pitts had said anything or not. He said he saw the man but that he did not pay much attention to him. The man turned around and passed them again on his way up to the street corner. Neither Johnson nor Pitts paid any further attention to him until Pitts saw the man coming toward them with a gun in his hand. Pitts told Johnson that the man had a gun, and Pitts got up and ran to the door. Johnson stayed on the bench, and the man walked up to him. Johnson says the man asked him if he knew a particular person who lived in the building. When Johnson said “no,” the man called him a liar and shot him.

A landlord’s duty to its tenants arises under OCGA § 51-1-3, and in Georgia that duty extends to protecting tenants from third-party criminal acts under certain circumstances:

The general rule is that a landlord is not an insurer of his tenant’s safety; however, the landlord does have a duty to exercise ordinary care to prevent foreseeable third-party criminal attack upon tenants. A tenant will be precluded from recovery, however, as a matter of law against the landlord when he or she has equal or superior knowledge of the risk and fails to exercise ordinary care for his or her own safety.

(Citations omitted.) Jackson v. Post Properties, 236 Ga. App. 701-702 (513 SE2d 259) (1999). A landlord’s duty to guard against crime generally arises when “the landlord has reason to anticipate a criminal act from prior experience with substantially similar types of crimes.” (Citations and punctuation omitted.) FPI Atlanta, L.P. v. Seaton, 240 Ga. App. 880, 882 (1) (524 SE2d 524) (1999). Georgia law does not require that the prior crimes be identical in nature, but only that the incidents be sufficient to put the landlord on notice of a dangerous condition. Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997). And in determining whether prior incidents are similar, courts must look to various factors:

In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. [Cits.]

Id.

1. In this case there was no evidence of any crime in the specific area immediately surrounding the bench where Johnson was shot. But Johnson’s expert testified that he reviewed sixty-four police reports, which he said reflected crimes in and around Roosevelt House in the two years prior to Johnson’s shooting. Johnson produced no evidence, however, that AHA was aware of any of the incidents reflected in the reports, and the law in Georgia is that a property owner has no duty to investigate police files to determine whether criminal activities have occurred on its premises. SunTrust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207) (1995).

Nevertheless, Johnson argues that AHA should be charged with knowledge of at least five of those reports because they reflect assaults on AHA security guards. Those reports reflect incidents where, under various circumstances, either tenants or nonresidents attacked security guards working at Roosevelt House or in the vicinity. None of these assaults involved either a gun or serious injury. Although Johnson provided no direct evidence that AHA received notice of these incidents, under Georgia law notice to the agent is notice to the principal. OCGA § 10-6-58. Therefore, AHA must be charged with knowledge of the incidents involving its own security guards. Millon v. Residence Inn &c., 226 Ga. App. 826, 827 (487 SE2d 431) (1997).

In addition to the reports, there was evidence that in the months before Johnson was shot, AHA had increased surveillance of the building’s parking lots because AHA had received reports about a number of car break-ins. And it was generally known that Roosevelt House was in a high crime area. While these factors standing alone may be insufficient to put AHA on notice of a dangerous condition, when combined with the incidents involving AHA security guards, they are sufficient to raise a jury question as to whether AHA was on notice of a dangerous condition. Compare Lau’s Corp. v. Haskins, 261 Ga. 491, 492-493 (1) (405 SE2d 474) (1991), and Woodall v. Rivermont Apts. L.P., 239 Ga. App. 36, 40 (1) (520 SE2d 741) (1999), with Doe v. Prudential-Bache/A. G. Spanos Realty &c., 268 Ga. 604, 606 (492 SE2d 865) (1997), and Carlock v. Kmart Corp., 227 Ga. App. 356, 358 (1) (489 SE2d 99) (1997).

2. Even assuming that AHA should have foreseen the danger, however, Johnson admitted that he also knew of the danger. He had lived in Roosevelt House for three years prior to the shooting. He testified, “I don’t hang around too much at night in my neighborhood. It’s not kosher.” He explained that there were “dope peddlers, prostitutes and all kinds of people up and down that block.” He also indicated that he was “used to that environment [on Techwood], guns and whatever.” He admitted that he had heard of shootings on the block on Techwood and that he considered it dangerous to sit out on the bench in front of Roosevelt House after dark. And although Johnson often sat out there during the day, he said he normally did not sit out there at night —just that one time on the night he was shot. In summary, Johnson was aware that it was dangerous to sit on the bench at night and that prior shootings had occurred on the block. Therefore, his knowledge of the danger was at least equal to that of AHA. See Whitmore v. First Fed. Sav. Bank &c., 225 Ga. App. 768, 770-771 (484 SE2d 708) (1997).

3. The question , then becomes whether Johnson exercised ordinary care for his safety. A landlord is not liable for a plaintiffs injuries caused by a dangerous condition if the plaintiff had equal or superior knowledge of the danger and failed to exercise ordinary care to avoid the danger. Reid v. Augusta-Richmond County Coliseum Auth., 203 Ga. App. 235, 239 (416 SE2d 776) (1992). “Although the issue of a plaintiff’s exercise of due diligence for his own safety is ordinarily a question for the jury, it may be summarily adjudicated where the plaintiffs knowledge of the risk is clear and palpable. [Cit.]” Rappenecker v. L.S.E., Inc., 236 Ga. App. 86, 87 (1) (510 SE2d 871) (1999).

Here, Johnson was clearly aware of the dangers of lingering after dark on a bench adjacent to Techwood Drive. He was aware that “all kinds of people” came up and down that block. Yet while he stayed for ten minutes talking in an area he knew to be dangerous and that he generally avoided after dark, he admits he failed to pay attention. Although Johnson saw the man pass, and Pitts remarked upon the man’s unusual appearance, Johnson failed to pay attention to the man because he was talking to Pitts. Thus, Johnson admits he was focusing on his conversation and not his surroundings. During the time the men were talking, the man passed them two times and then came back with a gun. We find that Johnson failed to exercise ordinary care under the circumstances and that the trial court properly granted summary judgment to AHA. See Rappenecker v. L.S.E., Inc., 236 Ga. App. at 88 (1); Reid v. Augusta-Richmond County Coliseum Auth., 203 Ga. App. at 239.

Decided March 27, 2000.

Gill, Peterson & Harris, Allen F. Harris, Slappey & Sadd, James N. Sadd, for appellant.

Gleaton, Persons, Eagan & Jones, W. Seaborn Jones, Elizabeth Knight, Roger K. Whitesides, for appellee.

4. Johnson claims, however, that summary judgment is precluded under the “necessity rule.” That rule precludes summary judgment against a landlord where the tenant had no alternative but to traverse a known hazard in order to enter or leave his home. McCullough v. Briarcliff Summit, L.P. II, 237 Ga. App. 630, 632 (2) (516 SE2d 353) (1999); Hart v. Brasstown View Estates, 234 Ga. App. 389, 391 (506 SE2d 896) (1998). But the rule does not apply under the facts of this case. Johnson had other alternatives. If Johnson wanted to sit outside talking to his friend, AHA provided a fenced courtyard on the side of Roosevelt House that was intended for residents to use as a more secure outside environment. Moreover, Johnson may have had to use the front door of Roosevelt House to come and go, but he was not required to linger in front of the building at a time and place he knew to be dangerous.

Judgment affirmed.

Smith and Miller, JJ, concur.