author: Birdsong, Presiding Judge.

text:
    A95A1402.
    RICHARD HANEY FORD, INC. v. FORD DEALER COMPUTER SERVICES.
    (461 SE2d 282)
   Birdsong, Presiding Judge.

Appellant Richard Haney Ford, Inc. appeals the order of the state court granting appellee/defendant’s cross-motion for summary judgment and denying appellant/plaintiff’s summary judgment motion. The sole enumeration is that the trial court erred in so ruling.

Appellant brought suit averring appellee’s breach of a contract to provide certain computer services, including both hardware and software computer equipment to assist appellant, inter alia, in preparing reports for warranty work on automobiles to the Ford Motor Company data base. Appellant entered this contract with appellee’s predecessor in interest; pursuant thereto appellant purchased an 800 system, TI 100 series computer. It is averred that appellee breached the contract by failing to continue to support appellant’s computer system as contractually required. Appellant further asserts that certain modified software was defective in that it listed customer complaints in the section of the report where the action taken on these complaints was to be listed and vice versa. Appellant claims that this deficiency has not been timely corrected. Held:

1. (a) The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

(b) “ ‘The cardinal rule of [contract] construction is to ascertain the intention of the parties.’ OCGA § 13-2-3. Contract construction is a three-step process. Initially, the construction of the contract is a question of law for the court. First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. [Cits.] That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. [Cit.] Secondly, if ambiguity does appear, ‘[t]he existence or non-existence of an ambiguity is itself a question of law for the court. [Cits.] [Finally, a] jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction.’ [Cit.] This is true even if the contract is difficult to construe. [Cit.] Further, a contract should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof. [Cits.]” Duffett v. E & W Prop., 208 Ga. App. 484, 486 (2) (430 SE2d 858); compare Orley Enterprises v. Tri-Pointe, 522 NW2d 896 (1, 2) (Mich. App.) (contractual language interpreted according to its plain meaning; where document is unambiguous and unequivocal, its construction is for court to decide as a matter of law). “It is essential to note that this is a rule for construing [contracts] separate from those rules allocating burdens of proof at trial and on motion for summary judgment.” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680); compare Wade v. Crannis, 209 Ga. App. 501, 503 (2) (433 SE2d 669).

(c) The office of the President of Ford Dealer Computer Services is in Detroit, Michigan. The contract at issue is one for the sale of goods within the province of the Uniform Commercial Code. Cf. Advanced Computer Sales v. Sizemore, 186 Ga. App. 10 (1) (366 SE2d 303). Pursuant to an express contractual provision, Michigan substantive law controls the issues pertaining to the terms of this contract. Compare OCGA § 11-1-105 (1) and Michigan Statutes Annotated (MSA) § 19.1105 (1).

2. In November 1989, appellant entered the contract with appellee. Appellee agreed to sell and deliver and appellant agreed to buy and accept selected IDCS computer equipment and, in addition to remedial maintenance for the purchased equipment, certain software programs and services. The contract pertinently provided that: “[Appellee] agrees to provide software programs and other supporting materials for the number and type of IDCS applications selected by the [appellant/dealer]. . . . [Appellee] will also provide to the [appellant/dealer] subsequent modifications or enhancements to these applications as they become available for distribution. . . . [Appellee] agrees to make available the software programs selected ... for a minimum period of five years commencing on the date that the [appellant/dealer] first agrees to accept any of [appellee’s] IDCS software programs. [Appellee] reserves the right to change the specifications and the content of such software from time to time without incurring any liability to the [appellant/dealer] therefor, including any loss or inconvenience incurred by the [appellant/dealer] in the event that the changes to such software are incompatible with any modifications, alterations, additions, enhancements, accessories to the equipment not furnished under this agreement.”

(a) Appellant contends, inter alia, that appellee refused to provide software or other support to appellant for the five-year period provided for in the contract, and that appellee would not support the software provided appellant unless the latter purchased new equipment from appellee. The contract was entered into in November 1989; the five-year period would expire in November 1994; appellant asserted breach and unilaterally terminated the contract as of January 31, 1993.

In July 1992, appellee notified appellant and its other customers that its supplier of computer equipment was selling its computer hardware and that such hardware would within a few years be discontinued by the purchasing company. Certain options were made available to appellee’s customers who had purchased more sophisticated computer systems. On receipt of this notification, appellant immediately wrote appellee asserting that his system was not going to be supported and making certain demands to which appellee refused to agree. This suit for breach of contract resulted. In response to appellant’s motion for summary judgment and in support of its own summary judgment cross-motion, appellee’s vice president of software support executed an affidavit expressly asserting that appellee had “provided [appellant] with support services to the software licensed to [appellant] throughout the entire period of the contract with [appellant], which contract [appellant] canceled effective January 31, 1993. . . . [Appellee] was prepared to continue to provide support services to the software licensed to [appellant] through the rest of the term of the contract, had [appellant] not canceled the contract effective January 31, 1993. ... At no time did [appellee] refuse to provide support services to the software licensed to [appellant]. ... At no time did [appellee] state to [appellant] that [appellee] would no longer support the software licensed to [appellant] prior to the end of the contract term.” Moreover, the letter of notification to appellant regarding the change in appellee’s computer hardware contained an attached series of written questions and answers explaining the effect of appellee’s proposed equipment conversion. Question and Answer no. 6 states: “I own a TI 100 series computer (e.g., a 300, 600, or 800 system). What are my options? You will be able to remain on your 100 series system through December 31, 1995. At that time (or sooner) you can upgrade to an IBM 9370 system for the FDCS price in effect at the time of your conversion. When you move to the IBM 9370, your on-going software and support charges will be the same as they were on the 100 series computer. Your FDCS representative can discuss specific upgrade proposals with you.” (Emphasis supplied.) Question and answer no. 15 states in further clarification of policy as follows: “What if I don’t want to convert? How long will the TI be supported? FDCS has already announced that they will continue support for the 100 series systems through the end of 1995.” (Emphasis supplied.) The evidence of record relied upon by appellee/ movant pierces the averment in appellant’s pleadings that it had been denied support in breach of the contract; the evidence shows that no denial of support was made during the life of the contract. A summary judgment movant/defendant may discharge his burden 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 plaintiff’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, supra. Appellant contends that it carried its burden by way of the affidavit of its president and the supporting documents thereto attached. This affidavit contains the general assertion that appellee breached the contract by failing to continue to support appellant’s computer system, as reflected in appellee’s letter of August 1992. Appellant asserts this letter establishes that appellee would no longer support the computer system which was sold to appellant, “but would only support larger systems, which were sold to larger dealers.” This letter, however, contained the attached, pertinent question and answers above-discussed evidencing that appellee would continue to support the series 800, TI 100 computers through December 31, 1995. Appellant has failed to come forward with specific evidence giving rise to a triable issue regarding its claim of withdrawal of support in violation of this particular provision of the contract. The affidavit of appellant’s president, regarding this issue, is at best generalized and conclusory. On summary judgment, in the absence of substantiating fact or circumstances, conclusory allegations are insufficient to raise a material issue for trial. Brooks v. Boykin, 194 Ga. App. 854, 856 (3) (392 SE2d 46). Also, in response to a summary judgment motion, the non-movant may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial. Appellant has not met its burden to go forward with this claim. Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47).

(b) Appellant further asserts that on or about December 1991, appellee provided a defective software program to appellant and that, as a result, appellant could not prepare warranty reports for the Ford Motor Company data base. Appellant’s president executed an affidavit which, inter alia, attested to these facts, and specifically averred the software program was defective in that it listed customer complaints in the report section pertaining to the action taken on such complaints and vice versa. Unlike appellant’s other claim, the facts recited in this affidavit, pertaining to the defective software claim, are neither conclusory nor generalized within the meaning of Precise, supra, and Brooks, supra.

Examination of appellant’s complaint reveals that it does not meet the notice pleading requirements of the Civil Practice Act of this state (see generally Wade v. Polytech Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468)) sufficiently to aver a claim grounded on breach of warranty; rather, consistent with appellant’s litigative strategy at the trial and appellate levels, only a claim for breach of contract has been averred. Appellee asserts that, as only breach of contract is at issue, evidence which would be relevant only to a breach of warranty cause of action would not support appellant’s claim of error. Appellee further contends that “while there may indeed be a genuine dispute between the parties as to whether or not the . . . software modification was defective, that dispute is not relevant to [appellant’s] professed cause of action for breach of contract.” As to contracts for the sale of goods, MSA § 19.2301 provides: “The obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in accordance with the contract.” Appellee asserts that it met all of these requirements and, that evidence of record does not support appellant’s contention that the grant of summary judgment to appellee was erroneous. Under the terms of the contract, appellee promised, inter alia, to provide software programs and other supporting materials for the various IDCS applications selected by appellant/dealer. It is generally recognized that an obligation of the seller may be stated in the form of a collateral warranty, a warranty implied by law, or “in adjective form as part of the description of the goods.” 5 Williston on Contracts (3d ed.), § 705. The contract in issue created in adjective form an obligation to provide the described software programs and other supporting material. Moreover, in Michigan as in Georgia, there is an inherent duty imposed in all contracts of good faith and fair dealing. See Woody v. Tamer, 405 NW2d 213, 216 (1) (Mich. App.); compare West v. Koufman, 259 Ga. 505, 506 (384 SE2d 664). Good faith and fair dealing would require appellee to satisfy its obligation under the contract by delivering to appellant software programs and other supporting material that were free from substantial defect. Whether the modified software provided appellant contained a substantial defect in breach of the contract constitutes an issue for jury resolution in this case.

Decided August 3, 1995.

Smith, Wallis & Scott, Kenneth A. Smith, James W. Wallis, Jr., for appellant.

Tisinger, Tisinger, Vance & Greer, C. David Mecklin, Jr., for appellee.

Accordingly, the trial court erred in granting appellee summary judgment as to appellant’s entire claim of breach of contact; judgment will be reversed and the case returned to the trial court for disposition consistent with this opinion.

Judgment reversed and remanded.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A95A1476.
    MADDOX v. THE STATE.
    (461 SE2d 286)
   Birdsong, Presiding Judge.

Timothy Maddox appeals his conviction and sentence for robbery. Maddox contends his constitutional right to a speedy trial was violated and that his trial counsel was constitutionally ineffective for failing to file a pretrial motion to suppress certain identification testimony. He further claims the trial court erred in failing to give a requested charge on impeachment. Held:

1. Maddox asserts that the trial court erred in denying his motion for acquittal based on a denial of his demand for a speedy trial made pursuant to OCGA § 17-7-170. Maddox’s trial attorney filed an entry of appearance on March 31, 1993. Thereafter, counsel filed no fewer than nine discovery motions on Maddox’s behalf. On June 25, 1993, about two months later, Maddox, even though represented by counsel, filed a pro se demand for a speedy trial. On October 28, 1993, Maddox’s counsel filed a motion for acquittal based on an alleged violation of OCGA § 17-7-170 (b). Following an evidentiary hearing, the trial court denied the motion for acquittal, determining under Goodwin v. State, 202 Ga. App. 655 (415 SE2d 472) that the demand for a speedy trial was “a nullity” because Maddox had filed his pro se demand while represented by counsel.

The trial court was clearly authorized to find that the pro se demand was of no legal effect whatsoever. Goodwin v. State, 202 Ga. App. at 655. On virtually identical facts in Goodwin, we held, “ ‘ “(T)he Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel. (Cit.)” (Cit.) As a result of changes in the Georgia Constitution, a criminal defendant in Georgia “ ‘no longer has the right to represent himself and also be represented by an attorney, i.e., the right to act as co-counsel.’ ” ’ ” Goodwin, 202 Ga. App. at 656, citing Hance v. Kemp, 258 Ga. 649, 650 (1) (373 SE2d 184). Since Maddox did not file a valid demand for a speedy trial, it necessarily follows that the trial court correctly denied Maddox’s motion for discharge and acquittal pursuant to OCGA § 17-7-170. See Goodwin, supra at 656.

Maddox seeks to distinguish Goodwin and claims that State v. Moore, 207 Ga. App. 677 (428 SE2d 815) and Johnson v. State, 203 Ga. App. 896 (418 SE2d 155) provide authority to reverse the trial court. However, Maddox’s reliance on these cases is misplaced. Moore, supra, dealt with compliance with provisions of OCGA § 17-7-171 (b), the demand statute for cases involving capital offenses; therefore, it is not relevant to our analysis here. OCGA § 17-7-171 (b) requires that the defendant be present in court, announce ready for trial, and request a trial on the indictment, provisions which OCGA § 17-7-170 does not contain.

In Johnson, supra, we made plain that strict compliance with OCGA § 17-7-170 is mandatory because the demand statute authorizes such an extreme sanction: discharge and acquittal. Johnson, 203 Ga. App. at 897. See Head v. State, 189 Ga. App. 111 (375 SE2d 46); Matthews v. State, 181 Ga. App. 819 (354 SE2d 175).

Further, OCGA § 17-7-170 (a) specifically requires that “the demand for trial shall be served on the prosecutor.” In the case at bar, however, there is no evidence in the record that the State’s attorney was properly served with Maddox’s demand for trial. The record indicates only that Timothy Maddox mailed the trial court a letter in the form of a “demand by accused for speedy trial” and that the demand was stamped on June 25, 1993, as filed in the clerk’s office. Absent from the record is any copy of a certificate of service showing the State’s attorney had been served with Maddox’s demand for trial.

Thus, even assuming arguendo that Maddox’s demand was not a nullity under Goodwin, supra, the record fails to document compliance with the explicit statutory requirements of the demand statute, OCGA § 17-7-170. Since Maddox cannot demonstrate strict compliance with the demand statute, his claim must fail.

2. Maddox asserts that his trial counsel was constitutionally ineffective because his counsel did not file a pretrial motion to suppress identification testimony based on what Maddox alleges was a coercive and unduly suggestive field show-up. The ineffectiveness issue was presented in the trial court by a timely amendment to his motion for new trial. Although the trial court did not make explicit findings on this issue, implicit in the trial court’s denial of the amended motion for new trial is a finding that Maddox was not denied the effective assistance of counsel.

To prevail on his ineffectiveness claim, Maddox must establish not only that his trial counsel’s performance was deficient but also that this deficient performance prejudiced his defense. Bryant v. State, 204 Ga. App. 856 (420 SE2d 801). As we noted in Bryant, supra at 861, ultimately Maddox “must show there was a reasonable probability the result of his trial would have been different, but for his defense counsel’s unprofessional deficiencies (Baggett v. State, 257 Ga. 735 (363 SE2d 257)), and he must overcome the strong presumption that the representation was effective. Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485).” In addition, we must measure the trial counsel’s performance under the circumstances existing at trial and not with the benefit of hindsight. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362); Bryant, 204 Ga. App. at 861.

Evaluating Maddox’s counsel’s performance in the above manner, we find defense counsel’s performance was not deficient. In the instant case, the victim testified at trial that she had ample opportunity to view Maddox from the time she first detected his presence until the time he grabbed her. The victim testified she watched Maddox come down the sidewalk, walk up her driveway, come up the path toward her porch, and then come up onto her porch. In addition, although it was close to midnight, the victim was able to discern Maddox’s attire, build, and features because he was illuminated by street lights, a security light, and her porch light. Moreover, Maddox spoke with the victim and grabbed her as they struggled, thereby affording the victim the further opportunity to familiarize herself with her attacker’s physical appearance and voice. Prior to the field show-up (counsel’s failure to move to suppress this evidence is the basis of Maddox’s ineffective assistance of counsel claim), the victim had provided police with a detailed description of the robber, including his height, weight, clothing, complexion, and basic stature. Based on this detailed description police picked up Maddox within approximately eight minutes after the victim provided the description, as Maddox was walking about a quarter of a mile from the victim’s home. Police transported Maddox back to the victim’s home for identification. At the field show-up, without any hesitation or reservation, the victim affirmatively identified Maddox as the man who had attacked her. At trial, the victim reiterated her certainty that Maddox was indeed the perpetrator who had struggled with her and robbed her.

Under the facts of this case, there was no substantial likelihood of misidentification. Mattison v. State, 215 Ga. App. 635 (451 SE2d 807). Also, we noted in Mattison that an on-the-scene show-up identification is not impermissibly suggestive when necessary because of the practicalities of the situation. Mattison, 215 Ga. App. at 636. See also Bigsby v. State, 210 Ga. App. 696, 697 (436 SE2d 817). Here, a police officer having the victim’s detailed description of the robber spotted Maddox shortly after the robbery occurred. Believing that Maddox fit the victim’s description, the officer drove Maddox to the victim’s home. At this point, the victim identified Maddox as the man who had assaulted and robbed her.

In State v. Frye, 205 Ga. App. 508, 509 (422 SE2d 915), we used a two-prong test to determine whether a trial court should exclude identification evidence. “ ‘The threshold inquiry is whether the identification procedure was impermissibly suggestive. Only if it was need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification.’ ” (Citations omitted.) Frye, supra at 509. Even assuming arguendo that Maddox can satisfy prong one, the evidence does not satisfy prong two because the evidence does not indicate “a very substantial likelihood of irreparable misidentification.” Frye, supra at 509. Included in the prong two factors are: (1) the witness’s opportunity to view the accused at the time of the crime; (2) the witness’s degree of attention during the crime; (3) the accuracy of the witness’s prior description of the accused; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Frye, supra at 509. Applying these five factors to the case sub judice, we find the evidence does not meet the criteria of prong two. Here, (1) the evidence shows that the victim had sufficient opportunity to view the perpetrator during the commission of the crime; (2) the victim was highly attentive to the perpetrator’s appearance during the commission of the crime; (3) the victim provided police with a detailed description of the perpetrator (prior to the field show-up) which accurately matched Maddox’s appearance; (4) the victim had a high level of certainty when she positively identified Maddox; and (5) relatively little time had elapsed before she identified Maddox at the field show-up. Frye, supra at 509.

Maddox has not shown and cannot show that the outcome of his trial would have been different had his trial counsel challenged the admissibility of the field identification testimony. Having reviewed the transcript and the applicable portions of the trial record, we find no support for appellant’s claim of ineffective assistance of counsel under the standards of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” Warren v. State, 197 Ga. App. 23, 24 (397 SE2d 484). Therefore, since the trial court’s findings in this case are supported by the record, and they are not clearly erroneous, the court’s findings are affirmed. Middlebrooks v. State, 208 Ga. App. 23, 24 (430 SE2d 163). For these reasons, we find that this enumeration is without merit.

3. Turning to the question whether the court erred in not giving the requested charge on impeachment, we find no error.

The basis for requesting the impeachment charge was an alleged inconsistency as to whether the victim had ever claimed the robber threatened to kill her. The victim did not testify that the perpetrator told her he was going to kill her. In fact, she testified that her attacker told her, “I am not going to hurt you.” However, the first police officer testified that the victim had told him the robber had threatened to kill her. But after the officer had an opportunity to review his notes from January 9, 1993, he confirmed that he had not written down any such threat and he conceded that it would have been normal procedure for him to have noted such a serious threat. The officer admitted he had not reviewed his notes before making that statement, had hundreds of cases to remember, and that a considerable amount of time had passed since the night of January 9, 1993. He also acknowledged he could have been mistaken about what the victim told him. The second police officer confirmed that the victim had not stated that the robber said he was going to kill her. And the victim, when recalled, also reaffirmed that she had never stated to the police that the robber told her he would kill her. During further cross-examination, the victim also speculated as to why she thought the first police officer might have misconstrued or misunderstood what she had said.

On appeal, Maddox contends the impeachment charge was essential to his defense and that the evidence demonstrated that the victim had been successfully impeached by contradictory and prior inconsistent statements. However, the testimony at trial does not support this claim because there is not sufficient evidence that the victim made any prior inconsistent or contradictory statement. Although the first officer’s testimony did not coincide with the victim’s testimony, the trial court concluded that any lack of consistency did not constitute impeachment of the victim. Having determined that the requested charge on impeachment was not supported by the evidence, the court instead gave a charge on conflicting testimony. Accordingly, we find no error.

Decided August 4, 1995.

William P. Doupé, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Anita T. Wallace, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A1480.
    CAREY v. BRADFORD et al.
    (461 SE2d 290)
   Birdsong, Presiding Judge.

Ransom D. Carey appeals the grant of directed verdict to defendants H. M. Brad Bradford, Sonja Whitaker, Brad Bradford Realty, Inc., and Parkway Properties, Inc., whom Carey sued as the owners and managers of the apartment complex where he lived and where he fell on dark stairs. Carey’s evidence showed that there were three electrical light fixtures in the breezeway in the center of the apartment building over the stairway; all were inoperative, including the light about ten feet above the top stair step. He and other neighbors had made repeated requests to the management to have the lights replaced on the stairway. His evidence also showed that this was the only stairway from his second floor apartment to the bottom. At about 10:00 p.m., as he walked down the stairs, he held the handrail, but his foot missed the step and he tumbled to the concrete at the bottom. The defendants argued that Carey assumed the risk of walking down the dark stairs because he had done so on other occasions and had equal knowledge of the danger. Held:

1. The trial court granted directed verdict to H. M. Brad Bradford as an individual and to Parkway Partners, Inc., as they were not the owners of the apartment building and were not personally liable. Appellant Carey makes no argument on appeal to dispute the ruling of the trial court on this issue, and any contention that these were proper parties to the suit is therefore abandoned. Court of Appeals Rule 27.

2. The trial court erred in granting directed verdict to the remaining defendants. A landlord has a statutory duty to keep premises in repair (OCGA § 44-7-13), and he is liable for damages to invitees for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1. The basis of such liability is the landlord’s superior knowledge of the hazard or defective condition, arid generally if the plaintiff has equal knowledge of a hazard, the landlord will not be liable for the plaintiff’s injury. See generally Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327). Where a portion of leased premises is dangerously out of repair and such condition is known to the tenant who continues to use that area, the tenant cannot recover from the landlord for damages resulting from the condition; but the severity of the doctrine of assumption of risk has been ameliorated in cases where its application would make the plaintiff “ ‘a captive’ ” in his own home. Richardson v. Palmour Court Apts., 170 Ga. App. 204, 206 (316 SE2d 770); see Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269, 270 (235 SE2d 601). When the dangerous area is the plaintiff’s only access or only safe or reasonable access to his home, the tenant’s equal knowledge of the danger does not excuse the landlord of damages caused by his failure to keep the premises in repair. Richardson, supra. The position taken by the landlord and its agent, and the ruling of the trial court in granting them directed verdict in this case, is that Carey was a prisoner in his own home and had no right to go down the stairway at night except at his own risk. The landlord’s argument that the plaintiff cannot recover as a matter of law because he assumed the risk of going upon the dark stairs without providing himself with a flashlight is not well taken. This would remove the landlord’s statutory duty to keep the premises in repair, while at the same time requiring the plaintiff in individual cases to prove that he employed every conceivable means of protecting himself from the landlord’s negligence, or be held to have assumed the risk. The evidence does not demand a finding that Carey did not use ordinary care for his own safety. OCGA § 9-11-50. The trial court erred in its judgment. Generally, where the case has moved to a jury trial and the evidence is extensive, it is better to let the jury hear the facts and then grant a judgment n.o.v., than to court the prospect of having to re-try the entire case. See Hickman v. Allen, 217 Ga. App. 701 (458 SE2d 883).

Decided August 4, 1995.

Michael B. King, for appellant.

McLain & Merritt, William S. Sutton, for appellees.

Judgment reversed.

Johnson and Smith, JJ., concur.


author: Smith, Judge.

text:
    A95A1224.
    McFADDEN v. THE STATE.
    (461 SE2d 542)
   Smith, Judge.

Casey Louis McFadden a/k/a K Dog was indicted by a Richmond County grand jury for possession of cocaine, OCGA § 16-13-30, possession of a firearm while in possession of cocaine, OCGA § 16-11-106 (b) (4), and carrying a concealed weapon, OCGA § 16-11-126. He was tried by a jury and found guilty on all counts. His motion for new trial was denied, and he appeals.

1. McFadden enumerates as error the denial of his motion to suppress evidence. At the hearing on the motion, a Richmond County sheriff’s deputy testified that he was at the county vehicle shop when he was contacted by a confidential, reliable informant who had provided information leading to at least five arrests and seizures of drugs within the past six months. This informant told him that an individual known as Casey was or had been dealing drugs and that he could see Casey “right now” at a known drug area, a car wash located a short distance from the county shop. The informant also stated that Casey was driving a white Oldsmobile with a particular license plate number. The deputy drove to the car wash within “about a minute” and observed the vehicle as described by the informant at the car wash. He approached a man standing by the vehicle and asked his name. The man identified himself as “Casey.” He had his hands in his pockets, and the deputy patted him down before he let him go to his car to retrieve his identification. During the pat-down, the deputy felt and removed a loaded .380 pistol from McFadden’s pants pocket; he then placed McFadden under arrest for possession of a concealed weapon. During the search incident to McFadden’s arrest, the deputy also found cocaine.

McFadden contends the officer’s investigatory stop and search were illegal because the informant did not state that McFadden was dealing drugs at the time he was observed and did not mention the presence of a weapon. These contentions have no merit. “ ‘Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. [Cit.]’ [Cit.]” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991). Officers are not required to refrain from acting on a reliable informant’s tip merely because they are not told by the informant that a drug transaction is in progress at that very moment. See, e.g., Pittman v. State, 208 Ga. App. 211, 218 (7) (430 SE2d 141) (1993) (reliable confidential informant had seen cocaine in suspect’s vehicle “that day”). There need be only a “fair probability” that contraband will be found in a particular place. Id. at 219.

In Samuel v. State, 198 Ga. App. 558, 559 (1) (402 SE2d 325) (1991), this court affirmed the denial of a motion to suppress evidence obtained by means of a tip from a confidential informant with a record of providing reliable information. While not all the information supplied by the informant was verified, verification of the location, vehicle, and general description of the individual was considered sufficient to support an investigative stop. Id. In the case before us, the deputy also confirmed McFadden’s identity before proceeding with his inquiry. See also Bentley v. State, 214 Ga. App. 580 (448 SE2d 479) (1994).

With respect to McFadden’s contention that the deputy had no basis for conducting a pat-down of his person for weapons, “[i]t has long been recognized that an officer with an articulable suspicion sufficient to authorize an investigative detention of a suspect is not constitutionally required to place himself in jeopardy and may, under certain circumstances, conduct a preliminary search for weapons.” (Citations and punctuation omitted.) Tedford v. State, 213 Ga. App. 252, 255 (444 SE2d 156) (1994). It is not unreasonable for officers to anticipate that a suspected drug dealer may be armed, and this court has observed that investigative detentions of suspects involving vehicles are “especially fraught with danger to police officers.” State v. Jarrells, 207 Ga. App. 192, 193 (3) (427 SE2d 568) (1993). This is particularly true when the suspect has his hands in his pockets. Once the deputy discovered the concealed weapon, he was authorized to place McFadden under arrest and conduct the more intrusive search incident to arrest that revealed the cocaine. Tedford, supra.

On review of a decision on a motion to suppress, we will construe the evidence most favorably to uphold the trial court’s findings, and we will adopt the trial court’s determinations on disputed facts and credibility if there is any evidence to support them. State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991). The evidence in the record supports the trial court’s ruling, and the denial of McFadden’s motion to suppress was not error.

2. McFadden acknowledges his enumerations on the general grounds “necessarily are dependent” on a determination that his motion to suppress should have been granted, apparently conceding that the evidence, if admitted, was sufficient to convict him. As noted in Division 1, above, the trial court properly denied McFadden’s motion to suppress. Moreover, “ ‘in making a determination as to the sufficiency of the evidence the appellate court considers the evidence in its entirety, including, not excluding, that admitted on trial but found inadmissible on appeal. (Cit.)’ [Cit.]” Rosser v. State, 211 Ga. App. 402, 406 (2) (439 SE2d 72) (1993). Accordingly, these enumerations of error present nothing for review. Id.

Decided July 12, 1995

Reconsideration denied August 8, 1995.

Sam B. Sibley, Jr., for appellant.

Casey L. McFadden, pro se.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. In McFadden’s final enumeration of error, he contends he is entitled to a new trial because his trial counsel failed to render effective assistance. The trial court heard extensive testimony on this issue at the hearing on the motion for new trial and found that McFadden’s trial counsel was not ineffective in his representation. We are limited in our review of this issue to determining whether the denial of McFadden’s motion for new trial on this basis was clearly erroneous. See, e.g., Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986). “We have reviewed the transcript of that hearing (at which trial counsel testified) and find sufficient evidence to support the trial court’s conclusion that [McFadden] failed to show ineffectiveness under the standards of Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). [Cit.]” Scott v. State, 263 Ga. 300 (2) (432 SE2d 107) (1993).

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A95A1019.
    DUNN v. THE STATE.
    (461 SE2d 294)
   Johnson, Judge.

Johnny Lee Dunn was convicted of three counts of sale of cocaine. On appeal, he argues that the trial court erred in admitting videotaped recordings of the transactions. We disagree. When the first of three videotapes was tendered into evidence, defense counsel objected, arguing that no proper foundation had been established. Specifically, he contended that the foundation witness’s testimony identifying the videotape as the one taken on the date in question was not credible as the witness did not maintain custody of it. Dunn asked the court to accept his same objection as to the other two tapes. In making his objection, Dunn did not state what the proper foundation for admitting the videotape would be. “Objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal.” (Citations and punctuation omitted.) Milford v. State, 178 Ga. App. 792, 793 (1) (344 SE2d 505) (1986). Dunn has therefore waived any right to assert on appeal the failure of the state to lay the proper foundation for the tapes. See Carter v. State, 146 Ga. App. 322, 323 (6) (246 SE2d 378) (1978).

Decided August 9, 1995.

Martin L. Fierman, for appellant.

Joseph H. Briley, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

In any event, we have examined the record and note that Dunn’s objection was properly overruled by the trial court. The chain of custody requirement does not apply to distinct and recognizable physical objects that can be identified upon observation, such as videotapes. Gadson v. State, 263 Ga. 626, 627 (2) (437 SE2d 313) (1993). The undercover officer viewed the videotapes soon after the sales occurred and again the day before trial. He testified that the tapes proffered at trial were the same ones that he viewed before and that they were true and accurate representations of the transactions. Inasmuch as the videotapes could be and were in fact identified upon observation by the witness, no showing of custody was required. Moreover, credibility as it relates to the admissibility of evidence is an issue for the trial court; a trial court’s findings as to credibility will be upheld on appeal unless clearly erroneous. Hall v. State, 176 Ga. App. 428, 429 (1) (336 SE2d 291) (1985). The trial court’s implied finding that the foundation witness was credible was not clearly erroneous. The trial court did not abuse its discretion in admitting the tapes over Dunn’s objection. See Harper v. State, 213 Ga. App. 444, 447-448 (4) (445 SE2d 303) (1994).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A95A1302.
    MITCHELL v. THE STATE.
    (461 SE2d 292)
   Blackburn, Judge.

Vincent Jerome Mitchell was convicted by a jury of aggravated assault. On appeal he contends (1) that a fatal variance existed between the allegations contained in the indictment and the evidence produced at trial and (2) that the evidence was insufficient to support his conviction.

On July 25, 1994, Mitchell fought with Stacy Watkins. As the fight ended, Watkins discovered blood coming from a number of cuts about his neck, chest and arm area. Mitchell left the area and was arrested a few hours later. The indictment charged Mitchell with unlawfully assaulting the victim “with a knife, a deadly weapon, which when used offensively against a person is likely to result in serious injury.”

The evidence varied as to the cause of the victim’s injuries. At the time of the fight, the two men were locked in a standing position, and the victim testified that he could not see a weapon in Mitchell’s hand. Mitchell testified that he stumbled backwards during the fight and managed to retrieve a piece of broken glass which he used to defend himself. The victim’s attending physician testified that the victim’s injuries were inflicted by either a knife, razor or like instrument. The sheriff at the scene, who had 19 years of experience investigating assault and homicide cases, opined that the victim’s wounds were made by means of a razor or knife. During deliberations, the jury asked whether the weapon used to attack the victim had to be a knife, whereupon the judge recharged that if the jury found the defendant used “any” deadly weapon to commit the assault, he could be found guilty of aggravated assault.

Contrary to Mitchell’s contention, reversal is not required. First, as there was some evidence that a knife was used to cause the victim’s injuries, there is no clear-cut variance. See Battles v. State, 262 Ga. 415, 417 (420 SE2d 303) (1992). Further, even if a variance did exist, it does not necessitate reversal. “[N]ot every variance in proof from that alleged in the indictment is fatal. The crucial elements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. Unless the variance subjects defendant to one of these dangers it is not fatal.” (Citations and punctuation omitted.) Id. In Battles, the Supreme Court addressed a similar situation. The indictment stated that the defendant struck and killed the victim with a wrench while testimony at trial indicated that the victim was struck and killed with a gun being used as a blunt object. The Supreme Court stated: “Here, because the indictment charged [the defendant] with killing the victim by striking him on the head, and because a wrench and gun produce similar injuries when used as blunt objects to strike someone on the head, we believe [the defendant] was sufficiently informed of the charges against him so that he could prepare a defense. Moreover, there was no danger that [the defendant] would be prosecuted again for the same offense. For these reasons, we conclude there was no fatal variance.” (Footnote omitted.) Id. at 417-418.

Similarly, we find no fatal variance in the present matter. Here the indictment charged Mitchell with stabbing and cutting the victim repeatedly. Because a knife and a broken piece of glass produce similar injuries, we believe Mitchell was sufficiently informed of the charges against him so as to prepare an adequate defense. Moreover, Mitchell faces no danger of subsequent prosecution for the same July 25, 1994, incident. Thus, we conclude that no fatal variance existed. See Glass v. State, 199 Ga. App. 530, 531 (1) (405 SE2d 522) (1991) (“The true inquiry is whether there has been such a variance as to ‘affect the substantial rights’ of the accused.”); see also Jackson v. State, 158 Ga. App. 702 (282 SE2d 181) (1981) (no fatal variance where the indictment described a shotgun as the weapon but the evidence revealed the weapon to be a pistol).

Decided August 9, 1995.

Kelley A. Dial, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Further, viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Mitchell guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Consequently, this conviction is affirmed.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A1662, A95A1664.
    A95A1665.
    A95A1667.
    A95A1668.
    A95A1669.
    MULLIS et al. v. NC-CNH, INC. (two cases) BURTON et al. v. MACON FAMILY MEDICINE. SAPP et al. v. PHYSICIANS MRI. PARKER et al. v. GEORGIA MAGNETIC IMAGING CENTER, LTD. WILLIAMS et al. v. RADIOLOGY ASSOCIATES OF MACON, P.C.
    (461 SE2d 237)
   Blackburn, Judge.

Plaintiffs appeal the trial court’s orders which dismissed their complaints for lack of jurisdiction and failure to state a claim upon which relief could be granted. The underlying complaints allege that the plaintiffs either had suffered on-the-job injuries or were suffering from workplace-related illnesses and that they had received authorized medical treatment from one of the defendants. Workers’ compensation insurance covered the cost of their medical treatment. Plaintiffs further alleged that they suffered injury to their peace, happiness, and feelings upon receiving bills from the defendants in violation of OCGA § 34-9-205.

OCGA § 34-9-205, in pertinent part, provides that “[n]o physician or hospital or medical supplier shall bill the employee for authorized medical treatment.” Plaintiffs claim that the defendants’ alleged violations of this Code section created a tort entitling them to damages. In a similar case, Delores Dixon brought a civil action against a company which provided copies of medical records, at a cost higher than allowed, to patients for medical offices. Smart Professional Photocopy Corp. v. Dixon, 216 Ga. App. 825 (456 SE2d 233) (1995). The complaint sounded in tort and was based on the copying company’s alleged violation of the rules of the State Board of Workers’ Compensation pursuant to OCGA § 34-9-205. We determined that Dixon’s redress was through the Workers’ Compensation remedies. Id. at 827. See OCGA § 34-9-18.

In the present case, the plaintiffs contend that Dixon is inapplicable because it dealt with a violation of a rule and the present case deals with a violation of a statute. In our view, however, this distinction does not require a different result. OCGA § 34-9-58 provides: “The State Board of Workers’ Compensation shall exercise all powers and perform all the duties relating to the enforcement of this chapter.” Any duty arising from the provision contained in OCGA § 34-9-205 (b) requiring that medical service providers refrain from billing patients directly relates, by necessity, to the enforcement of the Workers’ Compensation Act, because it is the Act itself which created the requirement. Furthermore, we have previously recognized the Board’s authority to enforce statutory requirements consistent with the goals of the Workers’ Compensation Act. See Penn. Nat. &c. Ins. Co. v. O’Berry, 184 Ga. App. 606, 607 (362 SE2d 157) (1987). In O’Berry, this court found that the Board was authorized to enforce a statutory provision unrelated to the Workers’ Compensation Act. As plaintiffs’ complaints are grounded upon an alleged violation of the Workers’ Compensation Act, the trial court properly dismissed the underlying complaints for lack of jurisdiction. See also Bright v. Nimmo, 253 Ga. 378 (320 SE2d 365) (1984).

OCGA § 34-9-18 provides for assessment of general civil penalties upon any violation of the Board’s rules or regulations. Effective July 1, 1995, OCGA § 34-9-18 was supplemented by the Georgia legislature with the addition of subsection (f) which provides: “All penalties and costs assessed under this Code section shall be tendered to the State Board of Workers’ Compensation and made payable to the State of Georgia. All such penalties shall be deposited in the general fund of the state treasury.” Plaintiffs contend this amendment leaves them without a remedy under the Workers’ Compensation Act. We do not agree. It is clear that the Workers’ Compensation Act contemplates a remedy through its provisions allowing punishment for infringements upon its rules, and as the Act contemplates a remedy the Board has exclusive jurisdiction.

Decided July 10, 1995

Reconsideration denied August 14, 1995

Middleton, Mixson, Orr & Adams, Richard H. Middleton, Jr., Peter C. Adams, John C. Peeples, Franc S. Exley, for appellants.

Chambless, Higdon & Carson, Joseph H. Chambless, Emmitte H. Griggs, Anderson, Walker & Reichert, Albert P. Reichert, Jr., Samuel G. Alderman III, for appellees.

Furthermore, plaintiffs’ right to damages, if any, vested at the point in which the medical service providers failed to follow the mandates of OCGA § 34-9-205 (b). The retroactive application of laws affecting or impairing vested rights is constitutionally prohibited. Ga. Const. 1983, Art. I, Sec. I, Par. X; cf. Bituminous Cas. Corp. v. United Svcs. Auto. Assn., 158 Ga. App. 739, 740 (282 SE2d 198) (1981). Therefore, the enactment of OCGA § 34-9-18 (f) directing that all penalties be paid to the state, as opposed to our interpretation of the statute prior to this amendment allowing the Board to direct the payment of penalties to others, cannot be applied retroactively and does not affect the outcome of the decision in this case.

Based on the foregoing, plaintiffs’ remaining enumerations of error are moot.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A95A1234.
    PAWN WORLD, INC. v. ESTATE OF SAM FARKAS, INC. et al.
    (461 SE2d 295)
   McMurray, Presiding Judge.

Plaintiff Pawn World, Inc. (“Pawn World”), brought this action seeking either specific performance of a written agreement to sell real property belonging to defendant, the Estate of Sam Farkas, Inc. (the “Estate”), or else damages for the alleged breach of that agreement. The complaint alleged that Pawn World entered into a binding agreement through defendant Jackson M. Harby, allegedly a “director and shareholder . . .’’of the Estate. Defendants denied the material allegations, and the case was tried before a jury.

The material facts are not disputed. The writing sued on is a preprinted real estate “PURCHASE AND SALE AGREEMENT” form, entered into between “Jackson M. Harby for the Estate of Sam Farkas, Inc.,” as seller and “JAMES N. STRANGE . . . AAA DISTRIBUTORS OR ASSIGN” as buyer. William A. Boston, Jr. “own[s] 80 percent of Pawn World.” He “withdrew the funds from [his] retirement account. . . and tendered a certified check to the closing attorney for the purchase price.” Mr. Boston affirmed that James N. Strange is president of the named buyer, AAA Distributors, which, Mr. Boston explained, is a corporation that is “one and the same . . .” as AAA Pawn, a fictitious name. When questioned by the trial court as to how plaintiff Pawn World fit into the umbrella or structure of AAA Distributors, Mr. Boston explained it was by virtue of the “[s]ame ownership. . . .” He was not certain “which name we were going to put it in at that time.” Mr. Boston “did give the authority to the president of the corporation to assign this [real estate contract] to whatever corporation name we wanted to put here.”

At the close of the plaintiff’s evidence, defendants moved for a directed verdict on the ground that any contract was entered into with AAA Distributors as the buyer; AAA Distributors is “not a party to this suit[; and that plaintiff Pawn World has] failed to show any assignment.” In reply, plaintiff’s counsel referred the trial court to “Paragraph 6 of the pre-trial order[: . . . ‘The names of the parties that are shown in the caption . . . are correct and complete. There is no question of misjoinder or nonjoinder of any party.’ ” The trial court granted defendants’ joint motion for directed verdict, finding no “evidence in the record that indicates that the named plaintiff, Pawn World, Incorporated, has any legal interest in these proceedings.” Plaintiff appeals from the judgment entered on that directed verdict. Held:

1. In its sole enumeration of error, Pawn World contends the trial court erred in directing the verdict in favor of defendants, arguing that they waived any defense based upon misjoinder or nonjoinder of parties by their stipulations in the pre-trial order. We do not agree. Pawn World’s argument confuses the identity of a party with standing to pursue a particular claim. Moreover, plaintiff’s own evidence raised the issue of an assignment.

“The [pre-trial] order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” OCGA § 9-11-16 (b). “Thus, a motion to amend and a proffered amendment filed at the trial cannot, as a matter of law, be untimely. In such instance, a discretion must be reposed in the trial court as to whether to allow such modification or amendment.” Ambler v. Archer, 230 Ga. 281, 288 (196 SE2d 858). Moreover, the “defense of failure to state a claim upon which relief can be granted . . . may be made ... at the trial on the merits.” OCGA § 9-11-12 (h) (2). “Omission of an issue from a pretrial order is not controlling if evidence pertaining to the issue is introduced without objection, the opposing party is not unfairly surprised, and the issue is actually litigated. Carreras v. Austell Box Bd. Corp., 154 Ga. App. 135, 138 (267 SE2d 792) (1980).” Dunkin’ Donuts of America v. Gebar, Inc., 202 Ga. App. 450 (1) (b), 451 (414 SE2d 683). In the case sub judice, defendants were not estopped to argue that the evidence failed to establish Pawn World’s right to the claim it made under a contract to which it is not a party by the stipulations in the pre-trial order.

Decided August 14, 1995.

Saliba & Moore, George M. Saliba II, for appellant.

Farkas, Ledford & Perry, Leonard Farkas, for appellees.

2. The purchaser under an executory written agreement for the sale of real property may sell or assign his beneficial interest to another. Dunson v. Lewis, 156 Ga. 692, 700 (1) (119 SE 846). An assignment of a beneficial interest under such instruments “shall ... be executed with the same formality as is required for the execution of deeds conveying realty.” OCGA § 44-5-32. In the case sub judice, the record is devoid of any writing purporting to assign the interest of AAA Distributors, the purchaser named in the writing sued on, to Pawn World, the only named plaintiff. In the absence of proof of a valid assignment under which Pawn World could stake its claim, Pawn World has no enforceable interest in the land at issue. The trial court correctly directed the verdict against Pawn World.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1324.
    NORTHWEST GEORGIA HEALTH SYSTEM, INC. et al. v. TIMES-JOURNAL, INC.
    (461 SE2d 297)
   McMurray, Presiding Judge.

Times-Journal, Inc. (“Times-Journal”), publisher of The Marietta Daily Journal, filed a “Verified Complaint for Injunctive and Declaratory Relief” against Northwest Georgia Health System, Inc. (“Northwest”), Promina Health System, Inc. (“Promina”), and others, alleging that Times-Journal has “repeatedly requested access to the meetings and records of Northwest and Promina[; that although] Northwest and Promina have provided Times-Journal, Inc. with access to certain documents, Northwest and Promina have taken the position that they are not subject to the provisions of the Open Meetings Act [OCGA § 50-14-1 et seq.] and the Open Records Act [OCGA § 50-18-70 et seq.], and, as a result, Times-Journal, Inc. and the public have not been given the access to records and meetings as required by law.” In addition to demanding a declaration that Northwest and Promina “are subject to the provisions . . .” of these laws, Times-Journal sought mandatory injunctive relief; a declaration that any action taken at a meeting not in compliance with the Open Meetings Act be “null and void”; and reasonable attorney fees incurred in prosecuting this action. Northwest and Promina, in their joint answer, contended that the “Sunshine Laws are not applicable to them, [but averred that] both Northwest and Promina have nevertheless fully complied with [Times-Journal’s] requests for records, opened their meetings to the public, and denfied] that there is currently any outstanding request for records with which they have not complied.” In a supplemental responsive pleading, Northwest and Promina admitted that Promina is the sole member of Northwest and further admitted the authenticity of certain exhibits attached to the amended complaint. These exhibits include the amended bylaws of Northwest; a “Pre-Merger Notification and Report Form” filed by Northwest with the Federal Trade Commission; a letter of intent, contemplating Promina’s “common control” of certain affiliated medical facilities; and a proposed affiliation agreement dated September 26, 1994.

After discovery, Times-Journal moved for a partial summary judgment declaring that defendants Northwest and Promina are subject to the Georgia Open Records Act, OCGA § 50-18-70 et seq., and the Georgia Open Meetings Act, OCGA § 50-14-1 et seq. Northwest and Promina opposed this motion and made their own motion for summary judgment as to “all counts of the Plaintiff’s Verified Complaint for Injunctive and Declaratory Relief and all counts of the Plaintiff’s First Amended Verified Complaint for Injunctive and Declaratory Relief. ...” The following material facts are undisputed: Northwest is a “private, nonprofit Georgia corporation which resulted from a reorganization and merger of two private, nonprofit Georgia corporations, Cobb Health Services, Inc. and Kennestone Health Services, Inc.” According to its bylaws, Northwest was organized “for the benefit of, to perform the functions of, or to carry out the purposes of: the Cobb County Kennestone Hospital Authority,” the Hospital Authority of Cobb County, the Hospital Authority of Douglas County, the Paulding County Hospital Authority, and the Hospital Authority of Cherokee County, as well as Cobb Hospital, Inc.; Douglas Hospital, Inc.; Kennestone Hospital, Inc.; Kennestone Hospital at Windy Hill, Inc.; Paulding Medical Center, Inc.; and R. T. Jones Hospital, Inc., described in the bylaws as subsidiary hospital corporations which are also Georgia nonprofit corporations. Defendant Promina, also a private, nonprofit Georgia corporation, “is the sole member of Northwest” and is characterized by defendants as a holding company which is the parent corporation of Northwest. Members of the “Board of Trustees of Northwest are elected by the Board of Trustees of Northwest and approved by the Board of Trustees of Promina. . . .” Northwest “does not receive a direct allocation of any tax funds from the governing authority of any agency[ . . however,] county tax funds are paid to [certain] Hospital Subsidiaries [of Northwest] to partially offset the provision of indigent care.” This reimbursement for providing indigent care was shown to amount to less than two percent of revenues from all sources. Seven members of the Board of Trustees of Northwest are “also members of five different hospital authorities located in Cobb, Douglas, Paulding, and Cherokee Counties[, representing] the Hospital Authority of Cobb County, Hospital Authority of Douglas County, Cobb County Kennestone Hospital Authority, Hospital Authority of Cherokee County, Georgia[,] and Paul-ding County Hospital Authority.” As authorized by OCGA § 31-7-75 (7), the Hospital Authority of Cobb County entered into a 40-year lease and assignment of all hospital authority assets to Cobb Hospital, Inc., one of the subsidiary hospital corporations of Northwest. In return for “One Dollar ($1.00) in hand, plus other good and valuable consideration,” the subsidiary hospital corporation would undertake operation of Cobb General Hospital for the benefit of the general public. This includes providing emergency care and “all of the indigent care obligations of [the Hospital Authority of Cobb County].” Similar 40-year leases were entered into whereby hospital subsidiary corporations of Northwest would take an assignment of hospital authority assets to operate Kennestone Hospital and Kennestone Hospital at Windy Hill.

The trial court granted the motion of Times-Journal and denied that of Northwest and Promina. From the summary judgment declaring that Northwest and Promina “are subject to the provisions of the Georgia Open Records Act, O.C.G.A. § 50-18-70, et seq. and the Georgia Open Meetings Act, O.C.G.A. § 50-14-1, et seq.” this direct appeal followed. Held:

1. Northwest and Promina enumerate as error the grant of Times-Journal’s motion for summary judgment and the denial of their opposing motion. Article 4 of Title 50, Chapter 18 is captioned: INSPECTION OF PUBLIC RECORDS. “The first question in an Open Records Act suit is whether the requested records are ‘public records.’ Napper v. Ga. Television Co., 257 Ga. 156, 160 (356 SE2d 640) (1987).” Clayton County Hosp. Auth. v. Webb, 208 Ga. App. 91, 93 (1) (430 SE2d 89).

OCGA § 50-18-70 defines a “public record” generally to mean “all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, or similar material prepared and maintained or received in the course of the operation of a public office or agency. ... As used in this article, the term ‘agency’ or ‘public agency’ or ‘public office’ shall have the same meaning and application as provided for in the definition of the term ‘agency’ in paragraph (1) of subsection (a) of Code Section 50-14-1. . . .” OCGA § 50-14-1 (a) (1) (E), in turn, defines an “Agency” to include: “Any nonprofit organization to which there is a direct allocation of tax funds made by the governing authority of any agency as defined in this paragraph and which allocation constitutes more than 33 1/3 percent of the funds from all sources of such organization; provided, however, this subparagraph shall not include hospitals, nursing homes, dispensers of pharmaceutical products, or any other type organization, person, or firm furnishing medical or health services to a citizen for which they receive reimbursement from the state whether directly or indirectly; nor shall this term include a subagency or affiliate of such a nonprofit organization from or through which the allocation of tax funds is made.” Northwest and Promina contend that sub-paragraph (E) of this Code section is “the controlling definition of ‘agency’ in this case,” because it expressly refers to any “nonprofit” organization. They argue that neither entity is a public agency, since Northwest and Promina as private, nonprofit corporations, do not receive the threshold amount of tax dollars as a percentage of operating revenue. Therefore, they cannot be made subject to the Sunshine Laws. Conceding the factual premise that neither Northwest nor Promina receives substantial support in tax dollars, we do not agree with Northwest and Promina that only those private, nonprofit corporations which meet that tax-support test must comply with the Open Records Act and the Open Meetings Act. Rather, we interpret this subparagraph to apply to all nonprofit organizations which receive substantial tax-based revenue. Such an interpretation does not mean, however, that this subparagraph is the exclusive authority for subjecting otherwise private, nonprofit organizations to the requirements of the Sunshine Laws.

“All public records of hospital authorities shall be subject to this article except for those otherwise excepted by this article or any other provision of law.” OCGA § 50-18-72 (c) (1). “ ‘Public records’ shall also mean such items received or maintained by a private person or entity on behalf of a public office or agency which are not otherwise subject to protection from disclosure. Provided, further, this Code section shall be construed to disallow an agency’s placing or causing such items to be placed in the hands of a private person or entity for the purpose of avoiding disclosure.” (Emphasis supplied.) OCGA § 50-18-70 (a). In Red & Black Publishing Co. v. Bd. of Regents, 262 Ga. 848, 852 (3), 853 (3) (b), 854 (427 SE2d 257), the Supreme Court of Georgia determined that an entity to which a public agency had delegated its official responsibilities and authority was the vehicle by which the agency carried out its responsibilities and held that the student Organization Court of the University of Georgia was subject to the Open Meetings Act even though that entity did “not fit within the literal language of the Act. . . .” In Jersawitz v. Fortson, 213 Ga. App. 796, 798 (1), 799 (446 SE2d 206), this Court applied Red & Black Publishing Co. v. Bd. of Regents, 262 Ga. 848, 852 (3), supra, and held that the “Olympic Task Force Selection Committee[, . . .] formed with the knowledge and approval of [the Atlanta Housing Authority], . . . was a vehicle for [that] agency to carry out its responsibilities . . . [and therefore was subject to] the Open Meetings Act. [Cit.]” In the case sub judice, Northwest’s subsidiary hospital corporations contractually agreed to operate public hospital authority assets for the public good and Northwest’s statement of corporate purpose is (in part) to operate those assets for the benefit of and performing the function of the several public hospital authorities. Without question, these private, nonprofit corporations became the vehicle through which the public hospital authorities carried out their official responsibilities. Consequently, despite the private, nonprofit status of defendants Northwest and Promina and their subsidiary hospital corporations, the trial court in the case sub judice was authorized to conclude on the facts before it that Northwest and Promina, as vehicles for public agencies, were “subject to the [Open Meetings] Act, and that the requested documents were ‘public records’ under the [Open Records] Act. [Cits.]” Clayton County Hosp. Auth. v. Webb, 208 Ga. App. 91, 93 (1), 95, supra.

Decided August 14, 1995.

Brock & Clay, D. Glenn Brock, King & Spalding, Frank C. Jones, Richard L. Shackleford, Glen A. Reed, for appellants.

Long, Aldridge & Norman, F. T. Davis, Jr., Bruce P. Brown, David Balser, Ann-Marie N. McGaughey, for appellee.

Michael J. Bowers, Attorney General, Stephanie B. Manis, Deputy Attorney General, John E. Hennelly, Assistant Attorney General, Dow, Lohnes & Albertson, Peter C. Canfield, James W. Kimmell, Jr., Powell, Goldstein, Frazer & Murphy, James C. Rawls, Sara K. Sledge, Heyman & Sizemore, William H. Major, William B. Brown, Alston & Bird, Jack S. Schroder, Jr., Lance P. Dunnings, Langley & Lee, C. Richard Langley, Donald W. Lee, Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., Leo E. Reichert, Oliver, Duck-worth, Sparger & Winkle, David P. Winkle, Layfield, Rothschild & Morgan, Jerome M. Rothschild, amici curiae.

2. The remaining contentions have been considered and are found to be without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1722.
    WEST v. THE STATE.
    (461 SE2d 300)
   Birdsong, Presiding Judge.

Charles A. West appeals his conviction of burglary; he enumerates two errors. Held,-.

1. Appellant asserts the trial court erred in allowing the burglary victim to identify him as the perpetrator when previously she had failed to identify him from a photo spread. In determining whether the trial court erred in denying the motion to suppress identification testimony, this court may consider evidence adduced at trial as well as evidence adduced at any pretrial hearing on. the motion. Davis v. State, 216 Ga. App. 580, 581 (1) (455 SE2d 115).

The fact that the victim failed to identify appellant in a prior photo spread or photo line-up raises merely an issue of the weight to be given the identification by the jury and does not per se render the subsequent in-court identification inadmissible. “[A] witness’ failure to make a pretrial identification of the accused is not grounds for striking a subsequent in-court identification. A line-up identification, or identification from a group of photographs, is not a prerequisite to every in-court identification.” (Citations and punctuation omitted.) Ralston v. State, 251 Ga. 682, 684 (2) (309 SE2d 135). In-court constitutional safeguards and trial procedures provide adequate protection to an appellant for testing and impeaching the accuracy of an in-court identification, under the circumstances here attendant. Compare Ralston, supra.

Additionally, there exists evidence in the record from which it can be concluded that even if an inherently suggestive pretrial identification had resulted, the subsequent in-court identification would have had an “independent origin” therefrom. See generally Munn v. State, 208 Ga. App. 674, 676 (5) (d) (431 SE2d 447). “[T]he fact that a witness may have only a ‘ “fleeting” opportunity to observe’ a perpetrator at the crime scene does not per se render the in-court identification inadmissible.” Brown v. State, 192 Ga. App. 187, 189 (1) (384 SE2d 254); accord Phillips v. State, 204 Ga. App. 698, 702 (2) (420 SE2d 316); Munn v. State, supra. The burglary occurred at about 11:30 or 11:35 a.m. on August 30, 1994. The victim testified she had been sleeping and awoke to see appellant standing at her bedroom door; he was turned a little to the side. He had his right hand on her doorknob and was carrying something long in his hand — something long like a tire iron or long screwdriver. He was holding the tool down at his side at waist level. He was of medium build and had a receding hairline; he had about a three-day growth of facial hair; he needed to shave. The room was dark but not pitch dark. However, there was a light behind appellant coming from the back door window of the trailer; it was “sort of like a glow behind him.” The victim screamed, and appellant shut the door and ran through the house. The victim wrapped herself in a towel and fled the trailer; she noticed that the trailer front door was bent where the chain lock had been removed and the metal trailer door had pry marks on it. The victim admitted that she had been unable to identify her assailant from a prior photo spread. The victim made an in-court identification of appellant as her assailant; she made this identification based on appellant’s build, shape, head and hair. She admitted that she had not seen appellant’s face, but saw “the face hair, the receding hairline, [and] the flat forehead.” When considering the totality of the circumstances, the record establishes that the victim’s in-court identification of appellant would have had such an “independent origin” as to render such testimony admissible in any event. Munn, supra.

Decided August 14, 1995.

James C. Wyatt, for appellant.

For each of the above reasons, the trial court did not err in admitting the in-court identification testimony of the victim.

2. Appellant contends the trial court erred when it failed to grant a directed verdict of acquittal on behalf of appellant. As a general rule, a motion for directed verdict in a criminal case should be granted only where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). However, the proper test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367). A reviewing court can consider all the evidence in the case in determining whether the trial court erred in overruling the motion. Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743).

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. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, supra. Applying both of the above-discussed directed verdict tests, we find that the trial court did not err in denying appellant’s motion for directed verdict of acquittal.

Judgment affirmed.

Johnson and Smith, JJ., concur.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.


text:
    A95A0975.
    MULL et al. v. MICKEY’S LUMBER & SUPPLY COMPANY, INC.
    (461 SE2d 270)
   Birdsong, Presiding Judge.

Appellants/defendants Ricky E. Mull and Karen S. Mull appeal the order of the superior court granting partial summary judgment to appellee/plaintiff Mickey’s Lumber & Supply Company, Inc., and denying appellants’ cross-motion for summary judgment.

Appellee lumber company filed a materialmen’s lien purportedly against the home of appellants Mull for building supplies used in construction of the home, and for which supplies appellee has not been paid.

Appellants purchased lots 20 and 21 in the Camelot Subdivision in Walton County; the subdivision was platted in county Plat Book 41, page 135. The lots were side by side and located at the end of a cul-de-sac. It was determined that lot 20 could not be built upon, so appellants’ home was constructed on lot 21. A building permit for lot 21 was obtained and appellants entered a construction contract with the general contractor, Waterport Construction Company, whose president has since filed for bankruptcy. Both on the date of closing on the lots and the date of filing of the lien, each lot was taxed independently and separately by the county tax commissioner. No construction was performed on lot 20 and all materials purchased from appellee subcontractor were delivered to lot 21 where all construction occurred.

On November 25, 1992, within five days prior to the closing of the permanent loan on the property by appellants, appellee recorded the materialmen’s lien. The lien document pertinently stated that appellee, a subcontractor and materialman, “hereby claims a lien ... on the below described building and real estate on which it is erected, or built, owned by [appellants], for satisfaction of a claim . . . for furnishing of material and labor for the improvement of the following described property, said materials provided at the request of Waterport Builders. . . . 4th District . . . Land Lot 148, Camelot Subdivision, Unit 2, Lot 20, Walton County, Georgia, and being more particularly described on a certain deed recorded in Deed Book 423, page 144, Walton County, Georgia Records, (Plat Book 41, page 135).” (Emphasis supplied.) The warranty deed referred to in the lien document provides the following legal description of the two properties: “ALL THAT TRACT or parcel of land lying and being in Land Lot 148 of the 4th District Walton County Georgia designated as Tract No. 20 containing 1.028 Acres more or less and Tract No. 21 containing 1.021 Acres more or less on plat titled final plat of Camelot Section Two per plat thereof recorded in Plat Book 41, Page 135, Walton County Records, which plat is made part hereof by reference.” (Emphasis supplied.) The lien document contained no street address for the properties at issue, although each lot had a separate mailing address.

The trial court found the lien description to be legally sufficient notwithstanding that lot 21 rather than lot 20 was the lot location of the building against which the materialmen’s lien was being filed. In so ruling, the trial court held, inter alia, that: “Essentially the lien described the correct county (Walton), land district (4th), land lot (148), subdivision name, deed book and page number. However, in the lien’s land description, [appellee] plaintiff mistakenly described the subdivision lot number as 20 instead of the correct number 21. [Appellants] defendants own both lots 20 and 21, which are side by side, with the home being built on lot 21. The single deed, recorded in the book and page contained in the lien, describes both lots 20 and 21, providing the acreage of the lots individually. . . . The addition of the incorrect subdivision lot number is surplusage and does not render the lien void.”

Appellants’ sole enumeration is that the trial court erred in granting appellee’s partial summary judgment, as to the sufficiency of the legal description of the materialmen’s lien sought to be foreclosed upon by appellee, and in denying appellants’ cross-motion for summary judgment which was based on a claim of inadequacy of the legal description. Held:

1. “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).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). In ruling on a motion for summary judgment, an opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

2. The sufficiency of a property description in a legal document gives rise to a question of law for the court. Peoples Bank of Bartow County v. Northwest Ga. Bank, 139 Ga. App. 264, 266 (1) (228 SE2d 181). Appellants contend that the lien is void as the inclusion within the property description of the erroneous lot number “20” establishes that the lien was applied to and attached to the wrong property.

Minor v. Neely, 247 Ga. 253 (275 SE2d 333) is distinguishable and is not persuasive under the circumstances of this case. Also distinguishable is King v. Rutledge, 208 Ga. 172 (65 SE2d 801), concerning an appeal of an order sustaining a general demurrer and dismissing an amended equitable petition grounded solely on a claim of a special equitable lien.

OGGA § 44-14-361.1 prescribes in pertinent part the statutory procedure for filing a materialmen’s lien; this statute is in derogation of the common law and must be strictly construed. Womack Indus. v. B & A Equip. Co., 199 Ga. App. 660, 661 (1) (405 SE2d 880). Failure to follow the mandatory procedures of OCGA § 44-14-361.1. would render the lien unenforceable. OCGA § 44-14-361.1 (a); compare D & T Glass v. Barrow Enterprises, 172 Ga. App. 797 (325 SE2d 170). The filing for record of a claim of a materialmen’s lien “shall be in substance” as provided in OCGA § 44-14-361.1 (a) (2); thus, the filing of a claim of lien need not be identical in content to the form prescribed in this subsection. The test for sufficiency of a description in a legal document is whether it makes possible the identification of the real or personal property described. Compare OCGA § 44-14-361.4 (a) (4); see Guthrie v. Pilgrim Realty Co., 156 Ga. App. 692 (1) (275 SE2d 686); see also OCGA § 11-9-110. If the description meets this basic test, the lien is not rendered unenforceable. Compare Broxton &c. Stone Works v. Jowers, 4 Ga. App. 91 (60 SE 1012). The issue therefore is whether the property description in question failed to identify sufficiently the real estate against which the lien was claimed. A description in a deed, contract for the sale of land, or a claim of lien on real estate, in order to be valid must identify the land or must contain a key by the use of which the description may be applied by extrinsic evidence. Brasher v. Tanner, 256 Ga. 812, 814 (1) (353 SE2d 478); Blumberg v. Nathan, 190 Ga. 64, 65-66 (8 SE2d 374). The concept of a “key” has been subject to misapplication; basically, any descriptive words in the claim of lien on real estate or other legal document requiring a legal description of land which will lead definitely to the land therein will constitute a key. Id. However, “ ‘[i]f such words, when aided by extrinsic evidence, fail to locate and identify a certain tract of land, the description fails and the instrument is void.’ ” (Emphasis supplied.) Brasher, supra at 814 (1). Thus, key words do not stand or fall exclusively of their own weight but can be “aided by extrinsic evidence,” so long as such process leads definitely to the land being described in the legal instrument.

We must now determine whether the claim of lien did contain an adequate key, when aided by extrinsic evidence, so as to render the property description sufficient. In this regard, it suffices if the “key” leads definitely to the identification of the property being described when aided by extrinsic evidence. Brasher, supra. In the case sub judice the “key,” even when aided by extrinsic evidence, fails to lead definitely to the identification of lot number 21 as the property subject to the lien. Although the lien document references a deed which has two lots on it, the document also references a plat which clearly identifies lot 20 as a separate lot, and does not infer that the lot 20 in the lien document could apply to any other lot but lot 20 of the plat.

Decided July 24, 1995

Reconsideration denied August 15, 1995

Davidson & Fuller, Stephen P. Fuller, for appellants.

Michael J. King, for appellee.

Courts are not at liberty to revise contracts under the guise of professing to construe them. Brigadier Indus. Corp. v. Pippin, 148 Ga. App. 145, 146 (251 SE2d 114). Moreover, statutes involving a materialman’s lien must be strictly construed in favor of the property owner and against the materialman. Palmer v. Duncan Wholesale, 262 Ga. 28, 29-30 (1) (413 SE2d 437). Here the lien document, due to a unilateral mistake by the appellee, inaccurately described the property subject to the attempted lien, and no adequate “key” can be found in this instance to remedy this fatal deficiency. Accordingly, grant of partial summary judgment to appellee must be reversed. The appellate process affords this Court no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortune of the unlucky. Floyd S. Pike Elec. Contractors v. Williams, 207 Ga. App. 86, 89 (2) (e) (427 SE2d 67).

We decline to determine whether appellee may still amend its complaint to seek recovery against appellants on a claim of unjust enrichment.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A1567.
    HOWARD v. THE STATE.
    (461 SE2d 274)
   Birdsong, Presiding Judge.

John Howard appeals his conviction for trafficking in cocaine and conspiracy to traffic in cocaine.

Candace Harper was arrested for speeding in Dooly County on August 28, 1993. She gave permission to search and more than 400 grams cocaine were found in her vehicle. Harper testified she was told in Atlanta by a person known as “Quick” to take a package of cocaine to “John” in Waycross. She told investigators she had met John in Waycross in July 1993, when she picked up some money “for Quick.” She had called John from a store; he came to the store, led her to his house, and gave her $8,000 to take back to Atlanta. She did this at least four times, bringing cocaine to John and returning with money for Quick. After she was arrested she was taken to Ware County, where she identified John Howard from a photographic lineup and took officers to Howard’s house at 1415 Thomas Street. She gave police John’s telephone number, and it corresponded to that house. She agreed to assist police in apprehending John. She registered at a motel where video cameras were installed in a room and in the parking lot. About an ounce of the cocaine was placed in the trunk of the car in a paper bag. She called John Howard and told him to “come pick up this [stuff], the car is tore up.” He first asked her if she had called Quick. He then agreed to meet her. This call was recorded. Appellant came to the motel about ten minutes later. Harper told him it was in the trunk and gave him the car keys; he removed a paper bag from the trunk. When police tried to arrest him, he threw down the paper bag and fled.

Appellant testified he knew Quick from playing ball in Atlanta and that he “knew of” Candace Harper as Quick’s friend, but that there was no drug deal; that Harper called him late at night saying her car was broken; and that he first suggested she call Quick and then agreed to come help her. He looked in the trunk of the car to get tools to fix the car, and when he saw several men rush toward him, he panicked and ran. Defense counsel attempted to discredit Candace Harper as a convicted felon and drug dealer who received probation by agreeing to implicate appellant. Held:

1. Appellant contends the jury did not reach a unanimous verdict but merely agreed to a conviction so as to expeditiously terminate the matter.

The jury began deliberation at 2:00 p.m. At 2:17 they asked to see and hear the tapes again, and a juror asked what time of day Candace Harper made her telephone call to John. The court replied: “If it’s in the evidence, it’s in the evidence. If it’s not, we can’t answer it.” The court replayed the videotapes.

The jury again withdrew at 2:27 p.m. At 3:15 the jury returned a verdict of guilty on both counts. When asked if that was his verdict, Juror Deane said, “Judge, can I be honest. . . Beyond a reasonable doubt, no. THE COURT: Are you telling the Court this is not your verdict? JUROR: We had to come to a unanimous decision, and there were, to be honest, a couple of us who have some reservations about what we’ve heard and seen. THE COURT: . . . Well, then the Court will not accept this verdict because it is not unanimous. The jury will go back to their jury room and continue with your deliberation. Give them their papers back. The verdict, ladies and gentlemen, must be a unanimous verdict. It must be a verdict that each one agrees on.” (Emphasis supplied.)

At 3:20 p.m. the jury retired again. At 3:43 the jury sent a note saying one juror would like to speak to the judge. The court declined to conduct individual conversations. Defense counsel made a motion for mistrial, saying “the jury seems to be hopelessly deadlocked.” The court overruled that motion. The jury was brought in. Juror Roach said: “The [only] question I had was whether the law could do what. . . . It’s my opinion and my opinion only, like he was being, you know, trapped into this thing; like it being a controlled thing . . . whether he was actually, you know, trapped into this situation. . . . If this lady hadn’t got stopped in Dooly County, would he have got in, you know, the rest of this going on. . . . That was the [only] question that was on my mind. Is that lawful? THE COURT: You used the word entrapment. I didn’t give you any charge on entrapment. JUROR: Well, I’m just saying that’s just what I felt a little like it was. . . . THE COURT: The only thing I can tell you is I did not charge the jury on entrapment. JUROR: That’s the only thing that I didn’t really understand. THE COURT: I can’t answer your question any further. . . . [Y]ou’re asking about a question of fact, anyway. JUROR: Yes, sir. . . . There’s still a big question mark on my mind about that. THE COURT: All right, sir. Was that the question of anybody else? All right. . . . I’m going to let you stay here till four o’clock, and then I’m going to have to go, but we’re not going to mistry this case. Oftentimes . . . the jury can . . . come back refreshed somewhat, and be able to decide a case, if you can. Of course that’s entirely your responsibility. It’s out of my hands, it’s out [of] the attorneys’ hands, it’s out of everybody’s hands. You are the judges of it all. I can try to answer a question, if I can, but that’s all I can do. We can play those tapes back like you asked, we can do little things like that, but, really, it’s with you, and that’s all there is to it. Do you want to go back for a few minutes, or do you all want to just go ahead and adjourn now until in the morning? THE FOREPERSON: Could I get the legal definition of entrapment?” (Emphasis supplied.)

The court conducted a bench conference, whereat the prosecutor said: “[Entrapment is not a defense in this case. . . . [I]f [Howard says he was entrapped] he opens up his record. That’s the reason entrapment is not a defense here. . . . DEFENSE COUNSEL: [T]hey seem to have a question about volitional will and knowledge, and perhaps a recharge on knowledge would be proper, Your Honor. PROSECUTOR: . . . The Court should just inform them that entrapment is not applicable. . . . DEFENSE COUNSEL: . . . That may honor the letter of what they’re requesting, but the spirit seems to be [that] they have some disagreement — PROSECUTOR: Well, no sir, they’re supposed to apply the Court’s charge.”

The trial court recharged the jury that appellant must have reasonably believed he went to the motel to receive a package of cocaine, and recharged as to the law of conspiracy and the requirements of knowledge and intention to commit conspiracy and trafficking in cocaine. Juror Roach asked again: “What is the definition of the law on entrapment? THE COURT: No, I’ve already answered that to begin with. I said I did not charge you on entrapment. That’s all I can tell you about that.”

The jury withdrew at 3:58 p.m. At 4:07 the jury published a verdict of guilty. One juror answered “[y]es” before she was polled, and then said: “Yes ... it is my verdict. . . . And I’m sorry I was so hasty and ready to go.”

After the jury was polled, defense counsel said: “Based on the comments of the lady that’s in such a hurry, Your Honor, I’m questioning whether or not they just want to get out of here or if that’s really their verdict. Could they be instructed that they really need to take their time on this and reach a verdict that is unanimous?” (Emphasis supplied.) The court did not give such an instruction.

The upshot is that the jury deliberated 88 minutes before returning a verdict which was not unanimous; and after being told the trial court would not declare a mistrial and that the responsibility to reach a verdict was entirely theirs “and that’s all there is to it,” the jury deliberated only nine minutes more before returning guilty verdicts. (Emphasis supplied.) In total, the jury deliberated only 97 minutes. Only minutes before this guilty verdict was rendered, a juror expressed a “big question mark” as to whether the defendant was “trapped,” but the jury was told a mistrial would not be declared: “[I]t’s with you, and that’s all there is to it.” These remarks instructed the jury that it would be required to reach a verdict “one way or the other,” as in McMillan v. State, 253 Ga. 520, 523 (4) (322 SE2d 278). The instructions were “tantamount to charging that even in the event of any conscientious and irreconcilable difference of opinion between the jurors, one or more jurors would be required to surrender his view in order to reach a verdict,” as in Sanders v. State, 162 Ga. App. 175, 177 (290 SE2d 516). The entire circumstances indicate the jury believed it was required to reach a verdict, as in Stephens v. State, 261 Ga. 356 (405 SE2d 470). With its first verdict the jury showed they believed they all “had to come to a unanimous decision” even if some privately disagreed with it. The jury then showed the basis of their fundamental disagreement, but reached its second verdict minutes later, with no instruction how to resolve their differences. With no instruction in the nature of an Allen charge, it is highly probable these jurors believed they had no choice but to acquiesce in the conclusions of their fellows. Taken together, the trial court’s instructions and remarks were such as “to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” McMillan, supra; Stephens, supra at 357. The final verdict was premature, and we are of the opinion that some jurors abandoned honest convictions for reasons other than those based on the trial or the arguments of other jurors. Harris v. State, 263 Ga. 526, 528 (435 SE2d 669). The trial court was not required to accept the second verdict, but should have given instructions in the nature of an Allen charge. See Romine v. State, 256 Ga. 521, 526 (350 SE2d 446). These guilty verdicts must be reversed.

Decided July 27, 1995

Reconsideration denied August 15, 1995

Martin H. Eaves, for appellant.

Richard E. Currie, District Attorney, Kathy L. Register, Alexander J. Markowich, Assistant District Attorneys, for appellee.

2. The trial court could have thrown light on the jury’s dilemma about whether the defendant was “trapped,” by explaining that the defense of entrapment is relevant where the defendant concedes that a crime was committed but contends he was “entrapped” into committing the crime (see Finley v. State, 214 Ga. App. 452, 453 (448 SE2d 78)); whereas, Howard contends he did not commit a crime and that his actions were consistent with innocence.

3. Appellant contends the State put his character in issue by Harper’s testimony that she delivered cocaine to him on previous occasions. This enumeration is without merit. The State gave notice of intent to produce evidence of similar transactions according to Williams v. State, 261 Ga. 640 (409 SE2d 649). Moreover, this testimony did not have as its only probative value the implication that because of his bad character appellant was more likely to have committed this crime. It explained how Harper knew John Howard, his voice, and the location of his house, which tended to prove he was the intended recipient of the cocaine. See Carroll v. State, 155 Ga. App. 514 (2) (271 SE2d 650).

Judgment reversed.

Johnson and Smith, JJ., concur.