author: Beasley, Presiding Judge. McMurray, Presiding Judge,

text:
    A93A0794.
    ROURA v. THE STATE.
    (447 SE2d 52)
   Beasley, Presiding Judge.

A combined decision in this appeal of Alcibiades Roura and in the appeal of appellant’s co-defendant, his brother Humberto Roura (Case No. A93A0795), was originally issued on July 13, 1993. On reconsideration of the two cases, the court denied the motion of Humberto, but substituted an opinion on July 30, and the remittitur in his case was issued on October 22. In the case of Alcibiades, there arose an equal division of the judges, one judge not participating. The judgment in the combined decision of July 13 was vacated, a new opinion was issued on July 30, and insofar as it related to Alcibiades, Case No. A93A0794 was transferred to the Supreme Court of Georgia in accordance with the Georgia Constitution, Art. VI, Sec. V, Par. V. That Court remanded the case to this court to render a decision when the full court was present.

1. We adopt the opinion set out in the new opinion of July 30, with respect to Alcibiades Roura, except as to Division 2.

First, though, with respect to Division 1 regarding the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we confirm that the evidence against Alcibiades was sufficient to prove he was a party to the crimes of trafficking in cocaine and possession of cocaine with intent to distribute. He drove his brother Humberto’s car to the gas station after Humberto called his home to arrange for the preparation and delivery of the cocaine for the transaction. He was driving the car when the phone call was made en route to inquire about progress. He went into the station when the cocaine package was carried in by his passenger, their nephew, and put on top of a bureau. He went out again to move the car when asked by Carballo, because it was impeding the transaction. Carballo handed the package of cocaine to Arrugueta because Humberto did not want to do it. Alcibiades was standing with his brother Humberto while the exchange between Carballo and Arrugueta took place and immediately thereafter, until the police arrived a few minutes later.

2. With respect to Division 2, further developments and study since the opinion of July 30 convince us that, like Humberto, Alcibiades is not entitled to a new trial. Alcibiades, as did Humberto, asserts that the court erred in failing to give two charges on circumstantial evidence. It refused to charge the rule found in OCGA § 24-4-6, which defendants requested verbatim, that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” The court also rejected what is known as the “two theories” charge. Defendants quoted the version found in Johnson v. State, 159 Ga. App. 497, 499-500 (283 SE2d 711) (1981).

In the charge conference, the court rejected the first after a debate about whether there was any direct evidence involving Alcibiades, it being implicitly conceded that there was direct evidence against Humberto. Defense counsel acknowledged that there was direct evidence that Alcibiades drove the car which transported the cocaine when it was summoned and that he moved that car, which witness Carballo testified was impeding the transaction, and that he was present at the scene. Carballo testified that the car which Alcibiades drove was Humberto’s and that both he and the passenger, a nephew, came into the gas station with the package of cocaine. The package was put on top of a bureau, from which it was taken a few minutes later and given to Arrugueta.

The court did instruct the jury that there were two kinds of evidence, direct and circumstantial, and it charged on the definitions of the two and the distinction between them. In addition it charged on the presumption of innocence, the necessity for the State to prove every material allegation and every essential element beyond a reasonable doubt, and the definition of a reasonable doubt. It charged that such a doubt is one that a fair-minded, impartial juror, who is honestly seeking the truth, would have, based on common sense and reason, after considering all the evidence, the lack thereof, and the conflict in it. It described such a doubt as being what is present when a mind is wavering, unsettled, or unsatisfied.

After the jury was charged, the court asked if there were any objections. Counsel for defendants responded, “No objections, Your Honor.”

New counsel filed a motion for new trial but did not reference the omission of either of the charges as a ground. Trial counsel wrote to the court following the trial and asked to be relieved of representing defendants on appeal. He stated that he knew of no grounds upon which an appeal would likely succeed.

(a) The omission of the two charges was waived. As held in Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980), defense counsel waived the right to raise the issue on appeal “by stating he had no objection to the charge.” He did not avoid waiver, which Jackson prescribes may be done, by stating the objections in response to the court’s inquiry or following “the procedure ... of reserving the right to object on motion for new trial or on appeal.”

This is an exception to “[t]he general rule . . . that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. [OCGA § 5-5-24 (a).]” Rivers v. State, 250 Ga. 288, 309 (7) (298 SE2d 10) (1982). As stated in Rivers, “[w]here objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge.” Id. at 309. This is true even under the Unified Appeal Procedure and where certain jury instructions were cast in terms of presumptions, a repeatedly disapproved practice, which was the case in Rivers.

This procedural rule has been followed in numerous cases. See, e.g., Fraley v. State, 256 Ga. 178, 179 (1) (345 SE2d 590) (1986); Henderson v. State, 182 Ga. App. 513, 518 (3) (356 SE2d 241) (1987); Taylor v. State, 174 Ga. App. 323 (1) (329 SE2d 625) (1985). The opinion in Allen v. State, 177 Ga. App. 600, 603 (340 SE2d 246) (1986), refers to the declination of an express, court-issued invitation to object as being “the clearest example of waiver.” Id. at 603.

The rule has been applied where, as here, the court rejects requests to charge. Wilson v. State, 259 Ga. 55, 58 (6) (376 SE2d 676) (1989); Seidel v. State, 197 Ga. App. 14, 15 (2) (397 SE2d 480) (1990); Spivey v. State, 193 Ga. App. 127, 131 (3) (386 SE2d 868) (1989). That stands to reason because, after a request is rejected without exception and after the whole charge is actually given and counsel affirmatively indicates no objection to it, there is nothing to preserve the point. This is not waiver by mere silence but rather waiver by active expression. The trial court is given to understand, at a time when there is opportunity to correct any error in the charge, that defendants are satisfied to have the case submitted to the jury for its deliberations on the instructions as given. Thus, invoking the right to request certain instructions in writing, as authorized in OCGA § 5-5-24 (b), does not avoid the waiver which occurs when, after the whole charge is given, express acceptance of it is stated.

It is not a mere technical rule but rather a means to avoid reversible error and so to promote the sound administration of justice by the achievement of a fair trial the first time. Here, then, there was a waiver because counsel did not object or state that the right to object in a motion for new trial or appeal was reserved. White v. State, 243 Ga. 250, 251 (253 SE2d 694) (1979).

(b) Alcibiades contends, as did Humberto, that even if they waived the omission, it is reviewable because it was “a substantial error .. . which was harmful as a matter of law.” OCGA § 5-5-24 (c). What this has been construed to mean is that an omission “fails to provide the jury with the proper guidelines for determining guilt or innocence.” Spear v. State, 230 Ga. 74, 75 (1) (195 SE2d 397) (1973). The erroneous charge must be blatantly apparent and prejudicial to the extent that it raises a question whether the defendant has been deprived, to some extent, of a fair trial. Maynard v. State, 171 Ga. App. 605, 606 (2) (320 SE2d 806) (1984); Ancrum v. State, 197 Ga. App. 819, 820 (2) (399 SE2d 574) (1990) (failure to instruct on the law of possession, an essential element of the offenses, was error); Gaines v. State, 177 Ga. App. 795, 800 (1) (341 SE2d 252) (1986) (“the nature of the charge possibly authorized a conviction for a crime not charged [and] [t]hus . . . the error is of such an egregious nature as to invoke . . . OCGA § 5-5-24 (c)”); Phelps v. State, 192 Ga. App. 193, 195 (384 SE2d 260) (1989) (“ [substantial errors in the charge on the essential elements are usually harmful as a matter of law so as to invoke OCGA § 5-5-24 (c). [Cit.]”) In Barnett v. State, 178 Ga. App. 685 (1) (344 SE2d 665) (1986), the trial court’s failure to instruct the jury to disregard the testimony of appellant’s general character or conduct in other transactions was a “blatantly apparent” and “highly prejudicial” error which, this court concluded, deprived defendant of his right to a fair trial.

Rejection of the charges here does not require reversal in this case.

(1) The “two theories” charge is not one the absence of which deprives a defendant of a fair trial. In fact, it has been criticized often and severely in that it may confuse or mislead the jury. Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458) (1993); Langston v. State, 208 Ga. App. 175 (430 SE2d 365) (1993). See also Burris v. State, 204 Ga. App. 806, 810 (3) (420 SE2d 582) (1992); Johnson v. State, 209 Ga. App. 632, 634 (4) (434 SE2d 169) (1993) (non-prece-dential). In Kelly v. State, 212 Ga. App. 278 (442 SE2d 462) (1994), the failure to give the “two theories” charge, as requested, was not held to be reversible error. The charge, which the Supreme Court recites is “based on Patrick v. State, 75 Ga. App. 687 (44 SE2d 297) (1947),” is, according to it, “appropriate only when all of the evidence is circumstantial. [Cit.]” General v. State, 256 Ga. 393, 394 (3) (349 SE2d 701) (1986). Note that the Court said it was “appropriate,” not that it is “required.” It is a charge derived from Davis v. State, 13 Ga. App. 142 (1) (78 SE 866) (1913), where, as in Patrick, the appellate court was using the concept as a measure in its considerations of the sufficiency of the evidence to support the verdict and using this rule as a standard of review.

Davis was a case in which the defendant presented his version of the event and his explanation of his involvement, which comported with innocence. The court asked itself: “Does the evidence exclude every reasonable hypothesis save that of the guilt of the accused? Under this evidence [summarized earlier in the case] it is just as reasonable to infer that the accused was agent of the purchaser [of liquor, as he stated] as that he was agent of the seller; and it is well settled that where two theories are presented by the facts in evidence, — one of guilt and one of innocence, — the jury should accept the one which is consistent with innocence, rather than that of guilt.” Id. at 143. In reviewing the evidence, the court was of the opinion that it left “entirely too much for conjecture.” It “[did] not feel justified in permitting a verdict to stand which rests solely upon a bare suspicion of guilt, and which presents a theory as consistent with innocence as with guilt.” It held, therefore, that the verdict was without any evidence to support it. Id. at 144.

As in Davis, likewise in Patrick, the defendant had presented evidence in support of a theory of innocence. The appellate court reviewed “the facts in evidence and all reasonable deductions therefrom” and concluded that it presented “two theories, one of guilt and the other consistent with innocence.” That being the case, the court held that “the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence,” citing Davis and the concept which had become codified as a rule of law, and reversed the judgment “on the general grounds.” Patrick, supra at 691. It said, in effect, that the evidence did not support a finding of guilt beyond a reasonable doubt. At the least, a reasonable doubt was created by a theory of innocence offered by defendant and supported by evidence. What started out as an appellate rule to test the sufficiency of the evidence to support the jury’s verdict, became in time a jury charge. For more of its history, see Langston, supra.

Even if the evidence in this case were entirely circumstantial as to each defendant, and even if either presented a theory consistent with innocence, the absence of the “two theories” charge did not deprive either defendant of a fair trial, particularly in view of the other instructions given to the jury.

(2) The failure to charge the principle contained in OCGA § 24-4-6 also did not constitute such an omission that Alcibiades (or Humberto) was deprived of a fair trial. Of course, it is not merely a different version of the “two theories” charge. Langston, supra; Moss v. State, 209 Ga. App. 293, 294 (433 SE2d 397) (1993); Kelly, supra; Burris, supra. It does, however, stem from the same conceptual root, as it involves a comparison of conflicting versions of an incident.

Preliminarily, we assume that this is the principle involved in Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991). What circumstantial evidence charge Robinson requires is somewhat unclear. As pointed out in McGuire v. State, 209 Ga. App. 813, 816 (434 SE2d 802) (1993) (Beasley, P. J., concurring in part and dissenting in part), the Supreme Court merely stated that “a” charge on the law of circumstantial evidence must be given, and the charge requested by Robinson is not set out in the opinion. The problem which this writer saw in McGuire’s charge is that it referred to all of the evidence as being circumstantial, when in fact there was substantial direct evidence as well. Refusing to give a charge which is not adjusted to the evidence is not error. Berry v. State, 262 Ga. 614, 615 (4) (422 SE2d 861) (1992); Hill v. State, 259 Ga. 557, 558 (3b) (385 SE2d 404) (1989); Harris v. State, 202 Ga. App. 618, 620 (4c) (414 SE2d 919) (1992). We have, in at least several instances since Robinson, assumed that the Supreme Court was addressing the principle in OCGA § 24-4-6, at least. That is, that the definitions of direct and circumstantial evidence (i.e., OCGA § 24-1-1 (3), (4)) would not be enough, and that the “two theories” charge, even if the court meant to include such a charge, would not be enough. See Manning v. State, 207 Ga. App. 181, 182 (2) (427 SE2d 521) (1993), where the court charged the definitions but not “the law of circumstantial evidence.” See also Burris, supra, which seems to assume it.

If, then, a charge on OCGA § 24-4-6 were regarded as so fundamental, the Supreme Court in Robinson would not have conditioned the right to have it charged on the making of a request. It held that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” See also Barner v. State, 263 Ga. 365, 366 (1) (434 SE2d 484) (1993). Likewise in Manning, supra, failure to give the charge, which was not requested, did not create reversible error. There was direct evidence in that case, i.e., the testimony of the victim describing the criminal act committed upon him. The charge is not one which is necessarily covered by OCGA § 5-5-24 (c) as a matter of law.

The principle contained in OCGA § 24-4-6 first appears in Georgia recorded case law, according to our research, in Wasden v. State, 18 Ga. 264 (1855), and this is included in Hopkins’ Annotated Penal Laws of Georgia, 1875. Section 484 in Hopkins states: “The Court was requested to charge ‘That the circumstances of the case should not only be consistent with guilt, but inconsistent with any other rational conclusion.’ The Court charged as follows: ‘I will not charge you in the words of the request; but do charge, as I have done, that it is not necessary to prove the fact by positive evidence, but the same may be proven by circumstances; that you must be satisfied, to a reasonable certainty, of the defendant’s guilt from those circumstances.’ The request to charge, was, in the opinion of this Court, a request to charge what was the law. But the Court, although refusing to give the request in the words of the request, gave in other words, as we think, the substance of it. Benning, J. Wasden, 18 Ga. 264, 265.” (Emphasis supplied.)

Wasden involved an indictment for adultery and fornication, and a new trial was ordered because of error in a charge on the doctrine of reasonable doubt. It had strayed from the principle “that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact, to the exclusion of all reasonable doubt.” Id. at 266. This was taken from I Starkie, Ev. 478 and was adopted in Giles v. State, 6 Ga. 276, 285 (6, 7) (1849). The court pointed out that Starkie’s language has other sanctions, such as in 3 Greenleaf’s Ev., § 29 and notes.

There is a similarity between the concept that guilt must be proved beyond a reasonable doubt, that is, to the exclusion of all reasonable doubt, and the concept that the circumstances must not only be consistent with guilt, but inconsistent with any other rational conclusion. Both concepts state the affirmative and then, to give the whole picture, the negative.

As the jury comprehends the evidence, it can adopt the conclusion of guilt only if no reasonable doubt remains. It must consider all doubts, and if it can reject them, and no reasonable one remains, then the conclusion of guilt can be accepted. In comprehending all “the circumstances of the case” (in the words of the request in Wasden, supra), it must consider all hypotheses (“conclusions”) other than guilt, and if the circumstances are inconsistent with any contrary reasonable (“rational”) hypothesis, then the hypothesis of guilt can be accepted. Circumstantial evidence must satisfy the jury beyond a reasonable doubt, “to a reasonable certainty,” to the exclusion of any rational conclusion other than guilt.

In Giles, supra, in discussing the degree of proof necessary to convict, and the degree of certainty which must be reached in the minds of the jurors, the court concluded that “[i]t is enough that the evidence, whatever be its character, whether positive or presumptive, direct or circumstantial, satisfies the understanding and conscience of the Jury.” Id. at 286. The point is, even where the evidence is direct, the body of evidence must exclude all rational conclusions which are inconsistent with guilt, so that the result remaining leaves no reasonable doubt.

According to the Supreme Court, the requirement that what is now OCGA § 24-4-6 be given in charge, even without request, “appears to have been imposed first in Hamilton v. State, 96 Ga. 301 (22 SE 528) (1895). Compare Barrow v. State, 80 Ga. 191 (3) (5 SE 64) (1887).” Germany v. State, 235 Ga. 836, 842 (2) (221 SE2d 817) (1976). In Germany, the court refers to the reasonable hypothesis as “a plausible explanation,” id., and finds crucial the fact that defendant offered no other reasonable hypothesis but basically argued that the State did not carry its burden of proof. Id. at 844. Playmate Cinema v. State, 154 Ga. App. 871, 872 (2) (269 SE2d 883) (1980), applies Germany, noting that “the evidence fails to suggest any reasonable hypothesis save that of guilt.” Id. at 873. This case also chronicles some of the history of the charge subsequent to Hamilton. In Bogan v. State, 158 Ga. App. 1, 2 (279 SE2d 229) (1981), the court, in reviewing the sufficiency of the evidence, wrote that “‘[i]n making a determination of whether any other reasonable hypothesis exists, the defendant’s explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted.’ ” Likewise in Johnson v. State, supra (non-precedential), the court noted that “no reasonable hypothesis of innocence or of a different intent has been suggested.” Middleton v. State, 7 Ga. App. 1, 3 (66 SE 22) (1909), refers to the charge as being appropriate when there is “a question of a comparison of the reasonableness of hypotheses.”

In this case, neither defendant offered any explanatory evidence so as to raise a hypothesis of innocence. They merely relied on the presumption of innocence, the State’s heavy burden of proof as to every element, and the principle, given in charge at their request, that mere presence of a person at the scene of the crime, without more, does not authorize a finding of guilt. This principle is an attack on the significance of the State’s proof, not a contrary theory or hypothesis. It is not an affirmative defense but rather “ ‘a corollary to the requirement that the state prove each element of the offense charged.’ ” Jones v. State, 205 Ga. App. 711, 713 (4) (423 SE2d 393) (1992). Compare, for example, Cato v. State, 212 Ga. App. 417 (441 SE2d 900) (1994), where a plausible explanation was offered to counter the State’s theory of the case. There is no evidence that Alcibiades did not know of his involvement with the cocaine or did not have the requisite criminal intent; he relied instead on the State’s burden to show that he had such knowledge and intent.

As we concluded in Case No. A93A0795, there was uncontro-verted direct evidence against Humberto which overwhelmingly established his participation in the drug trade scheme. The evidence against Alcibiades as a party to the crimes of trafficking in cocaine and possession of cocaine with intent to distribute was in part circumstantial, but there was direct evidence that he drove the car which brought the cocaine after it was summoned, moved the car because it was impeding the transaction, went into the station when the cocaine package was taken in, and was present at the scene of the swap. What was proved by circumstantial evidence was his knowledge that he was transporting the cocaine for a transaction and his intent to do so. Included as circumstantial evidence was that the car was his brother Humberto’s and the cocaine was summoned from Humberto’s house, where it had to be prepared, and that Alcibiades was driving it when the car was called to assure that it was en route and to determine how long it would take to arrive.

The charge is not such that the failure to give it deprived defendants, in this case Alcibiades, of a fair trial. The jury was fully instructed that it had to find guilt beyond a reasonable doubt. It was carefully instructed that “ [t] he mere presence of a person at the scene of the commission of the crime at the time of its perpetration, without more, will not authorize a jury to find a person who is merely present guilty of consent in, and concurrence in, the commission of the crime, unless the evidence shows beyond a reasonable doubt that such person committed the alleged crime, helped in the actual perpetration of the crime, or participated in the criminal endeavor.” This clearly applied to Alcibiades.

In Moughon v. State, 57 Ga. 102 (1876), defendant enumerated as error the court’s charge on circumstantial evidence and the failure of the court to define circumstantial evidence except by reading “section 3747, et seq., of the Code.” Id. at 104. (Section 3737 relates to the object of evidence. Section 3738 gave sundry definitions including those for direct and circumstantial evidence as recited in section 983 and section 984 of the 1895 Code, and section 985 regarding positive and negative testimony.)

Justice Bleckley cautioned that “[i]n trying a case depending upon circumstantial evidence, very few abstract principles should be given to the jury. Left to exercise their common-sense in their own way, the jury will generally determine correctly what is well proved, and what lacks further support. Furnished with a superfluity of rules, their attention is distracted, and the proffered help only obstructs. The better practice is, to decline charging refined speculations, and give only course, sharp-cut law. What shall come to the jury as evidence, is for the court. What it is worth when it arrives, is for the jury. They can discern its true value with spare assistance from the bench. The judge may well assume that they have a fair aptitude for their share of the common business.” Id. at 106-107.

Thus the concept, which emanates from a commitment to a high level of certainty of criminal act before the State takes away a person’s life or liberty, arose as a means for the appellate courts to measure the sufficiency of the evidence when all of the evidence that this person committed the crime charged is circumstantial and a rational explanation contrary to guilt appears from the evidence or lack of it, or from the defendant’s explanation. When there are conflicting explanations, those which are consistent with innocence must not be rational, in order to be discarded in favor of the explanation which is consistent with guilt.

Requiring the abstract charge in the language of OCGA § 24-4-6 ignores the substantial degree of incomprehensibility to the average juror, for it is not couched in ordinary, lay terms. Using the word “hypotheses” is somewhat misleading, as the jury may not “assume” guilt for the sake of argument; doing so poses an end result at the outset and directs thinking towards that end. It detracts from the presumption of innocence. According to Webster’s Third New Intl. Dictionary, a hypothesis is: “[A] proposition tentatively assumed in order to draw out its logical or empirical consequences and so test its accord with facts that are known or may be determined[;] ... an assumption or concession made for the sake of argument!;] . . . the antecedent clause in a conditional statement. . . .” It is doubtful that the average juror understands this charge.

We cannot say, particularly in the context of the entire charge in this case and the absence of any evidence evincing a plausible explanation or reasonable hypothesis of innocence, that the omission of a charge reciting the principle in OCGA § 24-4-6 was “a substantial error which was harmful as a matter of law” so as to come within OCGA § 5-5-24 (c). Consequently, there is no reversible error in this regard.

Judgment affirmed.

Birdsong, P. J., Andrews, Johnson, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. Pope, C. J., McMurray, P. J., and Blackburn, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I am of the opinion that the evidence against Alcibiades Roura was not sufficient to support his conviction.

The evidence against Alcibiades Roura was sparse, at best: He drove up to the gas station; a passenger exited the car he was driving and carried a package inside the station; he was asked to move a car so the undercover officer could park next to the station. Although these facts give rise to a suspicion that Alcibiades Roura was involved in the deal, they are consistent with the conduct of an innocent person who may have been “duped” into becoming an unwitting accomplice. Thus, it cannot be said that the evidence against Alcibiades Roura is sufficient to enable a rational trier of fact to find him guilty of trafficking in cocaine and possession of cocaine with intent to distribute beyond a reasonable doubt. Haxho v. State, 186 Ga. App. 393, 394 (367 SE2d 282).

Decided June 23, 1994

Reconsideration denied July 15, 1994

John H. Tarpley, Antje R. Kingma, Melissa M. Nelson, Abbi S. Taylor, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Nancy B. Allstrom, Stacy Y. Cole, Assistant District Attorneys, for appellee.

I am authorized to state that Chief Judge Pope and Judge Blackburn join in this dissent.

       In a later, out-of-time pro se motion for new trial, Alcibiades did not reference it either.

        Burris is somewhat in error, however, because the charge was not requested in that case but Burris says the court was “required” by Robinson (and did) give it.

        Wasden preceded the three cases recently referred to as the “first.” See, e.g., McGuire, supra; Johnson, supra.

       Code of Georgia of 1895, § 983 of Volume 3 sets out the definitions of direct and indirect, or circumstantial, evidence: “Direct evidence is that which immediately points to the question at issue. Indirect, or [cjircumstantial evidence is that which only tends to establish the issue by proof of various facts, sustaining, by their consistency, the hypothesis cláimed.”
      Section 984 sets out when circumstantial evidence is sufficient: “To warrant a conviction on circumstantial evidence, the proven facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.” That is a principle of law, not a jury charge as such. A number of cases are included in the annotations to this section, the earliest of which is Newman v. State, 26 Ga. 633 (1859).


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A94A1135.
    AUTO ALIGNMENT SERVICES, INC. et al. v. BRAY et al.
    (446 SE2d 753)
   Johnson, Judge.

In January 1992, Michael Steven Bray and Carol Bray Carter, individually and as executors of the estate of Laura Tucker Bray, brought an action in trover against Auto Alignment Services, Inc. (AASI) and J. Mercer Brown seeking 960.8 shares of stock in the possession of AASI and Brown as a director of the corporation. The stock had been set aside as year’s support for Laura Tucker Bray by order of the probate court of Fayette County dated January 4, 1988. Mrs. Bray subsequently died testate, leaving the stock to Michael Steven Bray and Carol Bray Carter. AASI answered, claiming that, pursuant to OCGA § 11-9-310, it owns the stock by virtue of a prior perfected security interest. According to AASI, the stock secured certain loans made to Charles Harvey Jack Bray, late husband of Laura Tucker Bray, one of the original incorporators of AASI, which were not repaid prior to his death.

Plaintiffs’ motion for partial summary judgment as to the issue of the ownership of the stock was granted by the trial court and treated as a final judgment pursuant to OCGA § 9-11-54 for purposes of appeal. Citing Raper v. Smith, 216 Ga. 326 (116 SE2d 554) (1960), the trial court held that AASI’s failure to assert any claim of lien in the year’s support action constitutes a waiver. Further, the trial court reasoned, even if AASI had a prior perfected security interest in the stock, raising the issue at this juncture constitutes an impermissible collateral attack on the probate court’s judgment in the prior action. Wayne County Bd. of Commrs. v. Reddish, 220 Ga. 262 (138 SE2d 375) (1964). The Georgia Supreme Court held in Wayne County: “A judgment setting apart a year’s support . . . has the same binding force and effect as that of any other judgment rendered by a court of competent jurisdiction and cannot be collaterally attacked. (Cits.)” Id. at 264. Although we agree with the ultimate result obtained by the trial court, we reach it by another route.

“ ‘For sufficient cause, and with proper parties, a court of equity has jurisdiction to set aside a judgment rendered by the court of ordinary in a year’s support proceeding; and such a proceeding is a direct and not a collateral attack upon the year’s support judgment.’ (Cit.)” Lewis v. Lewis, 228 Ga. 703 (1) (187 SE2d 872) (1972). We recognize that this action is not one to set aside the probate court’s award, nor was any such action brought. Nonetheless, the question remains whether the stock was the property of Bray subject to its inclusion in the year’s support award. “It is true as a matter of law that a year’s support for a widow can be set apart to her only from the estate of her deceased husband; and if property included therein does not as a matter of fact constitute a part of his estate, the judgment of the court of ordinary simply will not attach to such property, but will be void as applied thereto.” (Citations omitted.) Johnson v. City of Blackshear, 196 Ga. 652, 659 (2) (27 SE2d 316) (1943). The issue of ownership of the stock, therefore, was validly raised in this trover action. When stock is pledged as collateral, ownership does not change. For example, in Groover v. Savannah Bank &c., 186 Ga. 476 (198 SE 217) (1938), certain stock certificates were being held by a bank as collateral for a loan. Groover brought an action in trover to recover the certificates and the court held that she was the unqualified owner of the stock subject only to the encumber anees which had been placed upon it. Id. at 484 (4). “The pledge creates a lien upon property but not title to it.” Bromley v. Bromley, 106 Ga. App. 606, 608 (127 SE2d 836) (1962). In this case Laura Tucker Bray clearly became an owner of the stock by virtue of the probate court’s award of year’s support. The only remaining question, however, is whether the encumbrance was extinguished by the year’s support award.

OCGA § 53-7-91 provides that the year’s support to the family takes precedence over any other claim on a decedent’s estate. The year’s support statutes provide that property is passed stripped of all inferior claims except purchase money mortgages in land and chattel and a landlord’s lien for crops. OCGA § 53-5-17 et seq. Under these sections, AASI’s interest in the stock certainly would have extinguished at the time the year’s support award was made.

Decided June 24, 1994

Reconsideration denied July 15, 1994

Grizzard, Simons, Martin & Wills, Warren W. Wills, Jr., Kyle D. Sherman, for appellants.

. Donald O. Nelson, for appellees.

AASI relies on OCGA § 11-9-310, which states that a perfected security interest in collateral takes priority over all liens described in OCGA §§ 44-14-320 and 53-7-91 except that a “[yjear’s support to the family, duly set apart in the collateral prior to the perfection of the subject security interest, takes priority over such security interest.” OCGA § 11-9-310 (a). They argue that a perfected security interest in the stock existed prior to Bray’s death. In order to perfect a security interest in corporate stock, the stock certificate must be delivered to the secured party, accompanied by a stock pledge agreement. Although a security agreement relating to the stock is alluded to in corporate minutes which are part of the record on appeal, the agreement is not. Therefore, we have no competent evidence before us establishing if a security agreement existed prior to his death and cannot conclude that a perfected security interest existed in the stock.

A judgment that is right for any reason will be affirmed by this court. Turner v. MCI Telecomm. Corp., 203 Ga. App. 71, 76 (416 SE2d 370) (1992). Accordingly, the trial court’s ruling in favor of Michael Steven Bray and Carol Bray Carter is affirmed.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A0782.
    THRASHER v. COX ENTERPRISES, INC. et al.
    (447 SE2d 347)
    Decided July 15, 1994.

      Walbert & Hermann, Paul D. Hermann, William K. Day, Wil

      liam J. Cobb, for appellant.
   McMurray, Presiding Judge.

Our prior judgment in Thrasher v. Cox Enterprises, 209 Ga. App. 716 (434 SE2d 497), having been reversed by the Supreme Court of Georgia in Cox Enterprises v. Thrasher, 264 Ga. 235 (442 SE2d 740) our judgment is vacated and the judgment of the Supreme Court of Georgia is made the judgment of this court.

Judgment affirmed.

Beasley, P. J., and Senior Appellate Judge

Harold R. Banhe concur.


author: Pope, Chief Judge. Smith, Judge,

text:
    A94A0040.
    (446 SE2d 785)
    BARTON MALOW COMPANY et al. v. METRO MANUFACTURING, INC.
   Pope, Chief Judge.

Defendants, a general contractor on a county construction project and its surety, appeal from the trial court’s grant of partial summary judgment for plaintiff, a company which supplied materials used in the project, on plaintiffs claim for recovery under a statutory payment bond. See OCGA § 13-10-1 (b) (2). Concluding that this case is controlled by Tom Barrow Co. v. St. Paul Fire &c. Ins. Co., 205 Ga. App. 10 (1) (421 SE2d 85) (1992), we affirm.

Defendant Barton Malow Company was hired by DeKalb County to complete the Scott Candler Filter Plant Expansion Project, and defendant Aetna Casualty & Surety Company was Barton Malow’s surety on the statutorily required payment bond. Barton Malow needed prefabricated carbon steel pipe and certain pipe accessories for the project and contracted with nonparty Progressive Fabricators, Inc. (“ProFab”) to provide them. ProFab in turn contracted with plaintiff to supply some of these items, which were ultimately delivered to the project site. ProFab then filed bankruptcy without satisfying its debt to plaintiff, and plaintiff brought suit against defendants for recovery under the payment bond.

Citing Clifford F. MacEvoy Co. v. United States, 322 U. S. 102 (64 SC 890, 88 LE 1163) (1944), defendants argue that plaintiff is too remote a supplier to recover under the bond. In Tom Barrow Co., however, we rejected the narrow definition of subcontractor reflected in MacEvoy, and further rejected the argument that we should limit the coverage of Georgia’s Little Miller Act in the same way the federal courts have limited the coverage of the Federal Miller Act. See 205 Ga. App. at 10-11; see also Sunderland v. Vertex Assoc., 199 Ga. App. 278 (1a) (404 SE2d 574) (1991). The general contractor in Tom Barrow Co. subcontracted part of its duties to North Georgia Equipment Company, which in turn subcontracted part of its job to Wor-sham Sheetmetal Company. Worsham procured materials from the plaintiff which were used in the project, and Worsham then went bankrupt without paying the plaintiff. Under these circumstances, we held the plaintiff was a person “supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in the contract,” OCGA § 13-10-1 (b) (2), and thus was covered by the bond.

In this case, the general contractor subcontracted part of its duties (the procurement of piping) to ProFab, which in turn purchased piping materials from plaintiff. Thus, the only difference between this case and Tom Barrow Co. is that plaintiff here is one step closer to the general contractor than the plaintiff in Tom Barrow Co.. Even if we assume that in Tom Barrow Co., Worsham Sheetmetal Company, despite its name, subcontracted with North Georgia Equipment to provide services and not simply to provide materials, this distinction between a supplier of services and a supplier of materials is a distinction without a difference. A general contractor assumes the full responsibility for completing a project, which requires equipment and materials as well as labor and other services. It then hires others to provide the things it needs, subcontracting out pieces of its responsibility under the prime contract. Some of those it subcontracts with will be providing primarily labor or services; others may be providing primarily material or equipment. But they are all subcontractors in the sense that the general contractor has delegated some of its responsibility under the prime contract to them, and there is no reason to give those subcontractors providing materials a lesser degree of protection than those providing labor or other services.

Accordingly, the trial court did not err in ruling that plaintiff was not too remote a supplier to recover under the bond and in granting partial summary judgment for plaintiff on this issue.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, JJ., and Senior Appellate Judge Harold R. Banke concur. Smith, J., dissents.

Smith, Judge,

dissenting.

I respectfully dissent, because in my opinion the Little Miller Act is the law to be applied in this case. The flesh and bone of the Act, ignored by the majority in order to reach its result, may be found at OCGA § 36-82-100 et seq. For an excellent discussion suggesting how this case should be decided under our statutory scheme, see J. W. Bateson Co. v. Bd. of Trustees, 434 U. S. 586, 601 (98 SC 873, 55 LE2d 50) (1978) (Stevens, J., dissenting). In short, I would hold that a mere supplier to a supplier is not covered under a statutory payment bond given pursuant to OCGA § 36-82-100 (2). See generally J. W. Bateson Co., supra.

The majority explains that in the beginning, a general contractor assumes full responsibility for the entire government contract. Subsequently, “it hires others to provide the things it needs.” All of these persons are “subcontractors,” according to the majority. For this reason, they are to be afforded the same degree of protection. This, of course, is nothing new. It is axiomatic that persons in privity of contract with the prime contractor are covered under the statutory payment bond, whether they be subcontractors or materialmen. In this sense, then, the majority has accomplished nothing. ProFab, the bankrupt materialman in this case, is certainly made no better off as a result of the decision reached today, although the majority apparently disagrees.

The intent appears to be to label ProFab a subcontractor as a means of declaring our claimant, Metro, to be more than a mere supplier to a supplier. I believe the majority’s effort has been more successful than may appear at first blush. Its holding must be harmonized with OCGA § 36-82-100 (2), which prevents us from limiting subcontractor status only to those with whom the prime contractor deals directly. Accordingly, it would appear that Metro is not covered under the payment bond merely because it is in privity of contract with a subcontractor; rather, it is covered because Metro is a subcontractor under the majority’s holding. After all, Metro performs a function no different than ProFab. ProFab assumed the full responsibility to fill Barton Malow’s purchase order and “subcontracted” with Metro to provide some of the pipe that it needed to fill the order. Metro, which appears to have fulfilled its subcontracting duties from St. Louis, Missouri, undoubtedly subcontracted with other subcontractors throughout the country, whose efforts likewise found their way into the Scott Candler Filter Plant Expansion project in DeKalb County, Georgia.

In short, unless the majority’s holding today is somehow narrowed in scope in future cases, it would appear that “all persons supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in the contract” will be “subcontractors,” regardless of whether they are in privity of contract with the prime contractor. OCGA §§ 13-10-1 (a) (2); 36-82-100 (2). This will mean that any language in the Little Miller Act implying a contrary result is mere surplusage. See OCGA §§ 13-10-1 (a) (2); 36-82-102; 36-82-104 (f). “The assault upon the citadel of privity is proceeding in these days apace.”

Decided July 15, 1994.

White, Smith, Howard & Ajax, Michael D. St. Amand, for ap-pellee.

Alston & Bird, Robert L. Crewdson, Bovis, Kyle & Burch, John V. Burch, for appellants.

       Defendants also argue in their briefs that plaintiff failed to comply with the notice requirements of the Little Miller Act. This issue is beyond the scope of the lower court’s grant of partial summary judgment, and we do not address it.

       I believe Justice Stevens’s dissent is applicable to the Little Miller Act because in it he argues that the term “subcontractor” under the federal Miller Act should not be limited to those in privity of contract with the prime contractor. This is precisely the view adopted by our General Assembly in OCGA § 36-82-100 (2). The most striking feature of Justice Stevens’s dissent, however, is the fact that it is consistent with every case decided under our Little Miller Act until now, including Tom Barrow Co. v. St. Paul Fire &c. Ins. Co., 205 Ga. App. 10, 11 (1) (421 SE2d 85) (1992), the case on which the majority relies so heavily.

        Ultramares Corp. v. Touche, 255 N. Y. 170, 180 (174 NE 441) (1931) (Cardozo, J.).


author: Blackburn, Judge. Birdsong, Presiding Judge,

text:
    A94A0262.
    In the Interest of M. D. C., a child.
    (447 SE2d 143)
   Blackburn, Judge.

M. D. C., a juvenile, was charged with the commission of the delinquent act of burglary. A petition alleging the commission of delinquent acts and a violation of probation was filed August 5, 1993. The adjudicatory hearing was scheduled to be held August 17, 1993. M. D. C. moved to dismiss the petition as the hearing date was not set for a date within ten days of the filing of the petition. The trial court denied the motion to dismiss and adjudicated M. D. C. delinquent. M. D. C. appeals the trial court’s adjudication and disposition of the juvenile delinquency petition.

On appeal, M. D. C. asserts that the trial court’s determination that OCGA § 15-11-26 (a) required only that a hearing date be set within ten days, regardless of the date of the hearing was in error. We agree and reverse.

OCGA § 15-11-26 (a) provides that “[a]fter the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention, shall not be later than ten days after the filing of the petition. In the event the child is not in detention, the court shall fix a time for hearing thereon which shall be not later than 60 days from the date of the filing of the petition.”

In Brown v. Fulton County Dept. of Family &c. Svcs., 136 Ga. App. 308 (1) (220 SE2d 790) (1975), the hearing was originally set for a date not more than ten days after the petition was filed, however, the hearing was continued due to the absence of necessary witnesses. Id. We determined that “the time for the hearing must be set for a time not later than 10 days after the petition [was] filed.” Id. at 309. We held that the grant of the continuance was proper and, as the original hearing date was scheduled for a time within ten days from the filing of the petition, the mandates of OCGA § 15-11-26 (a) had been satisfied. Id. In J. B. v. State, 171 Ga. App. 373 (2) (319 SE2d 465) (1984), the date for the hearing was originally set for eight days from the date the petition was filed. Id. Thereafter, a continuance was granted, and the hearing was held at a later time. Id. Our opinion in J. B. did not address the issue before us in this case.

In J. B. H. v. State of Ga., 139 Ga. App. 199, 203 (228 SE2d 189) (1976), we determined that the trial court erred in overruling J. B. H.’s motion to dismiss as the delinquency petition was not filed within 72 hours of the delinquency hearing and the adjudicatory hearing was not set for a date within ten days of the filing of the petition. In Crews v. Brantley County Dept. of Family &c. Svcs., 146 Ga. App. 408, 409 (246 SE2d 426) (1978), a case factually similar to the present case, we determined that the trial court erred in failing to dismiss the petition as the hearing date was set for a date 12 days after the petition was filed. 146 Ga. App. at 409. In Irvin v. Dept. of Human Resources, 159 Ga. App. 101, 102 (282 SE2d 664) (1981), the hearing date was set for a date beyond ten days from the filing of the petition and we reversed the trial court’s denial of Irvin’s motion to dismiss. In Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406, 408 (229 SE2d 66) (1976), the Georgia Supreme Court acknowledged that the hearing date must be set for a date within ten days from the filing of the petition, but did not reverse on that issue as Sanchez had failed to preserve his objection at the trial court.

In Judge Beasley’s special concurrence in P. L. A. v. State, 172 Ga. App. 820, 822 (324 SE2d 781) (1984), she wrote, “I would not leave any room for the argument that ... so long as the juvenile court entered a date-setting order within 10 days, the statutory limitation would be satisfied. The intent of the statute is that the hearing be held within 10 days after the petition has been filed, if the child is in detention. Otherwise the court loses jurisdiction. Naturally, in order to give notice to all parties who must be assembled for that hearing, the court would have to, in advance of the hearing, fix a date. Thus it goes without saying that the fixing of the date must also be within that 10-day period. However, this is not to say that the requirement is rigid and that the hearing must in all cases be held as scheduled within that 10-day period. A continuance may be granted in the sound legal discretion of the court. Of course, the rescheduling cannot be arbitrary but must be for a good reason, as the court must keep in mind the objective of holding the hearing quickly, within 10 days.” (Citations, punctuation, and footnote omitted.)

In several cases, we have stated “that OCGA § 15-11-26 (a) requires merely that a hearing date be set within ten days of the filing of the petition and not that the hearing itself be conducted within that period.” In the Interest of L. T. W., 211 Ga. App. 441, 442 (439 SE2d 716) (1993). See also Johnson v. State, 183 Ga. App. 168, 169 (358 SE2d 313) (1987). This is an incomplete statement of the law. However, it is not necessary to overrule these cases because in each of them, the date of the hearing was originally set for a date within ten days of the filing of the petition. Id. Due to properly granted continuances, the actual hearings did not take place within the prescribed ten days. Id. The present case is distinguishable in that the date of the hearing was not originally set for a date within the ten-day limitation, but rather was scheduled for a hearing twelve days from the filing of the petition.

“In re Gault, 387 U. S. 1 (87 SC 1428, 18 LE2d 527) [(1967)] required that in appropriate situations the same constitutional standards apply to juveniles as to adults. In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) [(1972)] the Supreme Court adopted a four-factor test for adjudging whether or not the constitutional right to a speedy trial has been violated. These four factors apply to adult criminal defendants in Georgia. See Sanders v. State, 132 Ga. App. 580, 582 (208 SE2d 597) [(1974)] and cits. We note, however, that in Barker v. Wingo, Mr. Justice Powell observed at page 523 that ‘The States, of course, are free to prescribe a reasonable period consistent with constitutional standards . . .’ Our interpretation of these words from the Barker decision is that where a legislative body has defined the right to speedy trial in terms of days, then the time limits must be strictly complied with. . . . Accordingly, we hold that time limits established by the General Assembly in the Juvenile Court Code are jurisdictional and must be strictly adhered to.

“As Chief Justice Burger observed in Strunk v. United States, 412 U. S. 434 [(93 SC 2260, 37 LE2d 56) (1973)] the only available remedy for one denied his constitutional right to a speedy trial is dismissal. Accordingly, the juvenile court judge here erred in overruling the motion to dismiss.” J. B. H. v. State of Ga., supra at 202-203.

OCGA § 15-11-26 (a) is the equivalent of a statutorily provided speedy trial demand which does not require a specific demand by the child. However, its protections can be waived if not properly raised. See Sanchez, supra. Furthermore, the trial court has discretion to grant a continuance of a hearing properly set for a date within ten days from the filing of the petition, see In re J. B., 183 Ga. App. 229 (2) (358 SE2d 620) (1987), thus protecting both parties from participating in a hearing before they are properly prepared. Finally, if the case is transferred to the superior court within ten days of the petition being filed, the juvenile court rules no longer apply and the ten-day limitation need not be met. Therefore, the statute protects the interest of both the child and the State.

The statute provides no meaningful protection for the child if it merely requires the scheduling of the hearing within ten days. The actual date of the hearing could be several months in the future. It is the limitation on the time that the hearing is held, not when it is scheduled, that provides a safeguard for the subject child. If the statute was intended to relate only to the scheduling and not to the conduct of the hearing, the additional 50 days allowed for such an act when the defendant is not in detention would be unnecessary. In factual situations such as the one presented herein, the defendant’s civil liberties are at stake and the statute must be strictly construed. “Time limits established by the General Assembly in the Juvenile Court Code are jurisdictional and must be strictly adhered to.” Crews, supra at 409. Therefore, the trial court erred in denying M. D. C.’s motion to dismiss.

Judgment reversed.

Pope, P. J., Beasley, P. J., Andrews, Johnson, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., and Birdsong, P. J., dissent.

Birdsong, Presiding Judge,

dissenting.

A decision should be overruled to the extent that it states the wrong law, even if the result was appropriate under the facts. We may find facts to mitigate bad law, but if the statement of the law is never overruled, the courts must use all sorts of contortions to get around it. It is not enough to say a wrong statement is “incomplete,” or that a case can be distinguished from it, for it will cause trouble when its language is quoted out of context. This is inevitable. When due process rights are at stake, the danger of mistake is too great to shrug off our responsibility to correct the law.

OCGA § 15-11-26 (a) requires that the court shall fix “a time for hearing . . . which . . . shall not be later than ten days after the filing of the petition.” Of course a valid continuance may be granted, as many cases have held. In this case the petition was filed August 5, 1993,, at which time the hearing was scheduled to be held August 17, 1993. Thus, within ten days of the filing of the petition, the juvenile court fixed a hearing date, but that hearing date was not set to be held within ten days of the filing of the petition. The question of continuance does not arise, so those cases approving a hearing held after ten days because a valid continuance was granted or no objection was made, have no application to this case.

The only reason the trial court held these proceedings met the requirements of OCGA § 15-11-26 (a) “and those cases decided thereunder” is that it thought all it had to do within ten days was “fix.” It got this idea from cases which made the loose remark that a hearing does not have to be “held” within ten days but need only be “set” within ten days; but the cases which made that loose remark were cases where hearings wére set to be held within the ten days but were properly continued. The trial court’s confusion is understandable, because as the majority points out, the special concurrence in P. L. A. v. State, 172 Ga. App. 820, 822 (324 SE2d 781) perceived the same confusion and tried to clarify it by saying, “the court would have to, in advance of the hearing, fix a date. Thus it goes without saying that the fixing of the date must also be within that 10-day period.”

Decided July 15, 1994.

Fuller & McFarland, Thomas R. McFarland, Cecilia M. Cooper, for appellant.

John R. Parks, District Attorney, Henry 0. Jones III, Assistant District Attorney, for appellee.

This clarification was not enough, nor is the “justifying” by the majority. As long as we have cases, not overruled, which say the statute “ ‘require(s) only that a hearing date be set within ten days’ ” (see P. L. A., supra at 822 (physical precedent) citing J. B. v. State, 171 Ga. App. 373, 375 (319 SE2d 465)), the courts below will remain confused, with the result we see here: a delinquency petition must be dismissed because the trial court “set” within ten days a hearing date which was not to be “held” within ten days. This is a serious problem which we should not overlook or excuse merely because the cases which caused it can be distinguished.

This court should overrule those cases which state wrong principles of law; the statements cannot be justified as “incomplete” where they give the wrong direction, as acknowledged in the special concurrence in P. L. A., and as proved in this case. The correct statement of law is that the court must set a hearing to be held within ten days of the filing of the petition, but if valid continuances have been granted, or no objection made, dismissal of the petition is not necessarily required. Any other statement of law gives the wrong direction to the trial court and results in confusion, and ultimately, delinquency petitions will be dismissed.

I respectfully dissent.

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


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A0273.
    J & J MATERIALS, INC. v. CONYERS SEAFOOD COMPANY, INC. et al.
    (446 SE2d 781)
   Smith, Judge.

Appellant J & J Materials, Inc, filed an action on account and obtained a judgment exceeding $27,000 against appellee Conyers Seafood Company, Inc. (“CSC”) ,for seafood CSC procured from appellant in 1988. CSC was at that time a “one-man corporation” owned by appellee L. W. Evans. The seafood delivered to CSC was used in a business venture known to the public as ‘‘Conyers Seafood.” Appellant brought the present action claiming fraud and deceit and also seeking to “pierce the corporate veil” against appellees CSC, L. W. Evans, and Marilyn Evans, who is L. W. Evans’s wife and owner of nonparty L & M Evans, Inc. The latter entity succeeded CSC as operator of “Conyers Seafood.” This appeal is from the grant of directed verdict against appellant on both theories.

1. We find no error in the directed verdict in favor of Marilyn Evans. She made no fraudulent representation to appellant, nor was she a shareholder in CSC. With respect to her, appellant’s enumerations are without merit.

2. We likewise find no error in the directed verdict in favor of L. W. Evans on appellant’s fraud claim. Appellant bases this claim on certain responses to post-judgment interrogatories made following appellant’s 1988 action against CSC. Essentially, appellant claims it reasonably believed CSC was no longer in business as a result of the representations made.

However, the testimony of appellant’s sole shareholder, James R. Johnson, belies this contention. Johnson admits that after this time he “called Conyers Seafood every time he called [his] attorney, and they always answered it Conyers Seafood,” and that the number dialed was the “[e]xact same number we did business with and sold them the product on, which led me to believe that they were still in business.” Since appellant’s owner and president did not in fact believe the interrogatory responses based on his own further investigation, there is simply no basis for a fraud claim against Evans. The trial court did not err in directing a verdict in favor of Evans on appellant’s fraud claim.

3. Based on our holding in Division 2, we need not consider appellant’s enumeration regarding the trial court’s refusal to allow evidence of Evans’s prior bankruptcy experience, which appellant sought to introduce specifically in support of his fraud claim.

4. However, appellant’s claim that it should be allowed to “pierce the corporate veil” of CSC and seek satisfaction against Evans personally as CSC’s sole shareholder is a different matter. “In Georgia, the standard used to review the grant or denial of a directed verdict is the any evidence test. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” (Citations and punctuation omitted.) Hixson-Hopkins Autoplex v. Custom Coaches, 208 Ga. App. 820 (1) (432 SE2d 224) (1993).

The question presented in this case “is whether the corporation serves as the alter ego or business conduit of its owner. To establish this, it must be shown that the stockholders] disregard of the corporate entity made it a mere instrumentality for the transaction of [its] own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the [owner] no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud. When litigated, the issue of ‘piercing the corporate veil’ is a jury question. For the issue to be submitted to a jury there must be evidence that the corporate arrangement was a sham, used to defeat justice, to perpetrate fraud[,] or to evade statutory, contractual or tort responsibility.” (Citations and punctuation omitted.) Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 844 (2) (a) (392 SE2d 37) (1990).

J & J Materials presented evidence that would authorize a jury to find that CSC was a mere business conduit for L. W. Evans. That evidence, viewed in J & J Materials’ favor, shows that CSC received nothing more than the trade name “Conyers Seafood” from Evans when it was formed; that CSC paid for the operation’s furniture despite the fact that such furniture was owned by Evans personally; that Evans personally sold the retail end of the business — a business that supposedly belonged to CSC; and that L & M Evans, Inc. is reaping the benefits of the Conyers Seafood trade name and good will even though CSC was never compensated for it.

This evidence is certainly sufficient to present a jury question on whether Evans should be held personally liable to J & J Materials on the prior judgment against CSC. Derbyshire, supra. To this extent, the court’s judgment must be reversed.

Judgment affirmed in part and reversed in part.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, JJ., and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., dissents as to Division 4 and the judgment.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I respectfully dissent from Division 4 and the judgment of reversal as it is my view that the evidence adduced at trial would not authorize a jury to “pierce the corporate veil” and thereby hold the sole shareholder liable for the judgment debt of his close corporation. While I fully agree that the trial court correctly directed the verdict in favor of Marilyn Evans, I would affirm the judgment entered on that directed verdict in its entirety. As my analysis differs from the majority, I respectfully dissent in part.

Plaintiff J & J Materials, Inc. brought an action for fraud and deceit against defendant Conyers Seafood Company, Inc. (“CSC”) and its shareholders and officers, defendants L. W. Evans and his wife, Marilyn Evans. The complaint alleged that plaintiff obtained a default judgment against CSC for seafood delivered but for which plaintiff had not been paid and that, in response to post-judgment interrogatories, L. W. Evans made material misrepresentations on behalf of CSC as to the existence and assets of CSC in order to deceive plaintiff into believing that the default judgment was uncollectible. A separate claim alleged that the corporate entity of CSC should be disregarded and that the shareholders of CSC should be individually liable to plaintiff. Defendants denied the material allegations and claimed that plaintiff had failed to exercise diligence in attempting to enforce its judgment. At a jury trial, the following undisputed facts were established: In 1973, L. W. Evans started up a seafood wholesale business and restaurant on real property that he owned in Conyers, Georgia. He ran this business as a sole proprietorship, operating under the trade name Conyers Seafood. In 1981, he incorporated his wholly-owned corporation, CSC. In June 1987, Evans individually sold the retail side of the business to Captain Don’s Seafood, Inc., which simultaneously leased back restaurant space on Evans’ premises and the kitchen equipment. Captain Don’s Seafood, Inc. was controlled by Don Sirand, an employee of the wholesale side of CSC’s business. The sale and lease agreements did not purport to transfer any shares of CSC, nor the good will, telephone numbers to, or the privilege to use the trade name Conyers Seafood. Evans still held the wholesale side of the business but intended to wind down. However, Sirand failed to pay Evans on a $17,000 promissory note by which the purchase of the restaurant was financed and in October 1987, Evans commenced an action on behalf of himself and CSC to dispossess Sirand and Captain Don’s Seafood, Inc., alleging that Sirand was embezzling and breaching his sales and lease agreements. Meanwhile, plaintiff commenced proceedings against CSC in January 1988, to recover for seafood it had shipped to CSC in April 1987. Plaintiff obtained its default judgment against CSC on August 1, 1988. In October 1988, Evans was able to repossess the premises and the retail business from Sirand and Captain Don’s Seafood, Inc., although Evans recovered no money from the insolvent Sirand. In November 1988, Evans and his wife formed another corporation, L & M Evans, Inc. d/b/a Conyers Seafood. They continued to run their seafood business out of the same location, using the same telephone number and same advertisements for Conyers Seafood. All of the shares in L & M Evans, Inc. are owned by Mrs. Evans. New licenses and permits were obtained for this corporation. L & M Evans, Inc. has its own bank account and its checks are printed in the name: L & M Evans, Inc. d/ b/a Conyers Seafood.

On November 9, 1988, Mr. Evans, as president of CSC, verified CSC’s response to plaintiff’s post-judgment interrogatories as follows: “[CSC] operated a business located at 996 Green Street, Conyers, Georgia, until June 10, 1987. On that date, the building and premises were leased to Captain Don’s, Inc., a corporation having absolutely nothing to do with the Defendant corporation. Subsequent to that date, Captain Don’s Seafood, Inc. has operated the seafood market located at 996 Green Street, Conyers. [CSC] is no longer in business, no one owes [CSC] any money. [CSC] owns no automobile, truck or other vehicle. . . . The Defendant, [CSC] has no savings, commercial account or other account with any financial institution. . . . The Defendant, [CSC] owns no real estate.”

At the close of all the evidence, the trial court directed a verdict in favor of defendants on both claims. This appeal followed.

Plaintiff contends the trial court erred in directing the verdict as to its claims for fraud and deceit and for piercing the corporate veil, arguing that it presented a prima facie case.

“The five elements of fraud and deceit in the State of Georgia are: (1) false representation made by defendant; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting in reliance by the plaintiff; (4) justifiable reliance by the plaintiff; (5) damage to the plaintiff. See Shaw v. Cook County Federal Sav. &c. Assn., 139 Ga. App. 419, 420 (228 SE2d 326); Code Ann. § 105-302 [now OCGA § 51-6-2].” Hardy v. Gordon, 146 Ga. App. 656, 657 (247 SE2d 166). “Concealment per se amounts to actual fraud when from any reason one party has a right to expect full communication of the facts from another.” Morris v. Johnstone, 172 Ga. 598, 605 (158 SE 308). See also OCGA § 23-2-53. The statements submitted on behalf of CSC in response to plaintiff’s post-judgment interrogatories are true. It is un-contradicted that CSC was an unused shell corporation with no tangible assets at the time of the interrogatory responses. It is also undisputed that Evans then carried on his business via another properly incorporated artificial entity. Nevertheless, plaintiff contends Evans tried to conceal assets subject to its judgment, arguing that CSC was owed money by Captain Don’s Seafood, Inc. pursuant to the sales and lease agreements.

“ ‘[T]he corporation is prima facie a distinct legal entity with rights and liabilities which are separate from those of [its shareholders].’ Midtown Properties, Inc. v. Geo. F. Richardson, 139 Ga. App. 182, 185 (228 SE2d 303).” Jones v. Adamson’s, Inc., 147 Ga. App. 282, 283 (4) (248 SE2d 514). The agreements in the case sub judice are between Captain Don’s Seafood, Inc. and L. W. Evans, individually; CSC is not a party to those agreements and has no rights thereunder^ If any money were owed to Evans individually pursuant to those agreements, that fact would not render false and misleading CSC’s statement that no one owed it any money. Similarly, the facts that Evans’ new corporation used the same telephone number as CSC and operated out of the same location leased to it by Evans “do not present material issues of fact in response to [the Evans’] prima facie status as insulated from liability [for the debts of CSC]. Midtown Properties, Inc., supra; Stephens County v. Gaines, 128 Ga. App. 661 (1) (197 SE2d 424).” Jones v. Adamson’s, Inc., 147 Ga. App. 282, 283 (4), 284, supra. In the case sub judice, the circumstances relied on by plaintiff provide no factual basis for a claim of fraud and deceit; nor does the evidence provide a basis for piercing the corporate veil. “ ‘(O)ne who deals with a corporation as such an entity cannot, in the absence of fraud, deny the legality of the corporate existence for the purpose of holding the owner liable.’ Lamas v. Baldwin, 140 Ga. App. 37, 40 (230 SE2d 13).” Williams Plaza v. Sedgefield Sportswear &c., 164 Ga. App. 720, 723 (297 SE2d 342).

Nevertheless, the majority holds that the following circumstances would authorize a jury to pierce the corporate veil and hold L. W. Evans personally liable for the default judgment against CSC: CSC received nothing more than the trade name “Conyers Seafood” from Evans when it was formed; that CSC paid for furniture; and that Evans personally sold the retail end of the business which the majority assumes belongs to CSC. In addition, the new corporation L & M Seafood, Inc. is reaping benefits from the trade name “Conyers Seafood” and from such good will of CSC remaining after Sirand dissipated it. It is my view that such circumstances are not “any evidence” of fraud, injustice, or an improper attempt to avoid statutory, contractual, or tort responsibilities. Yet, the majority holds that this evidence authorizes a jury verdict to pierce the corporate veil and hold the sole shareholder personally liable for the antecedent debt of the close corporation. It is my view that this holding comes perilously close to permitting the sole shareholder of a close corporation to be personally liable for the debts of his corporation simply because he is the sole shareholder. “[A]lthough grossly inadequate capitalization and preferential payments may, under some circumstances, rise to a level of abuse of the corporate form, the undisputed facts of this case demonstrate no abuse of the corporate form sufficient to justify piercing the corporate veil. There is no evidence that [Evans] seized assets in order to strip the [corporation of assets necessary to pay existing debts. There is nothing in the record to indicate fraudulent intent.” Hickman v. Hyzer, 261 Ga. 38, 40 (2) (401 SE2d 738). Rather, in the case sub judice, the unrefuted testimony of Evans is that he put his own money back into the business to rebuild it after Sirand was ousted. As it is my view that the trial court did not err in directing the verdict in favor of L. W. Evans on plaintiff’s claims for fraud and deceit or for piercing the corporate veil, I would affirm the judgment in its entirety. See Williams Plaza v. Sedgefield Sportswear &c., 164 Ga. App. 720, 724, supra. Accordingly, I respectfully dissent to the judgment of reversal.

Decided July 15, 1994.

Ronald C. Conner, for appellant.

John T. Strauss, Burkett & Schneider, Gene Burkett, for appel-lees.


author: McMurray, Presiding Judge. Beasley, Presiding Judge,

text:
    A94A0506.
    MITCHELL v. THE STATE.
    (447 SE2d 140)
   McMurray, Presiding Judge.

This appeal presents the question of how this court should handle a criminal defendant’s appeal when the defendant’s attorney has failed to file a brief and enumerations of error despite being ordered to do so. In Whittle v. State, 210 Ga. App. 841 (437 SE2d 842) (1993), we ruled that we will not decide a case on the merits without a brief and enumerations of error. However, a majority of this court does not think the appeal should simply be dismissed without requiring the trial court to look into whether the defendant should be given another opportunity to appeal. Accordingly, the following order will be issued: “It appearing that defendant’s counsel, notwithstanding having been ordered to file an enumeration of errors and brief in this appeal, has failed to do so, IT IS HEREBY ORDERED that this appeal be stricken from the docket of this Court without prejudice to defendant’s right to file a direct appeal from his conviction; that the Superior Court of Fulton County, upon return of this case to that court, conduct a hearing at which counsel will be required to show cause why he should not be held in contempt of this Court for his failure to prosecute defendant’s appeal; that the Superior Court of Fulton County report to this Court its findings with regard to counsel’s failure to prosecute this appeal; and that the Superior Court of Fulton County inquire into defendant’s need for appellate counsel and take such action as is appropriate. Following the receipt by this Court of the report of the Superior Court of Fulton County, and following such action as this Court deems appropriate at that time, the appeal may be redocketed in this Court.”

The essential difference between the majority and dissent pertains to what happens to a case such as this case after it is removed from our docket — or more accurately, who has the burden of making it happen. Under the dissent’s scenario, the defendant has the burden of acting, and it is most likely that nothing will happen. The defendant may or may not receive his copy of the dismissal, but probably will not realize he has the right to request an out-of-time appeal and/ or new counsel. Thus, he will do nothing, and will have lost his opportunity to appeal solely because the attorney appointed to represent him did not perform his duty. Under the procedure adopted herein, on the other hand, the trial court must look into the situation even if the defendant does not act, to determine why the first attorney did not perform and whether the defendant needs new counsel.

Appeal dismissed without prejudice and remanded with direction.

Pope, C. J., Birdsong, P. J., Blackburn, J., and Senior Appellate Judge Harold R. Banke concur. Beasley, P. J., Andrews, Johnson and Smith, JJ., dissent.

Beasley, Presiding Judge,

dissenting.

Mitchell, who was represented at trial, was convicted of armed robbery (OCGA § 16-8-41) and burglary (OCGA § 16-7-1). This appeal was originally docketed in this court on September 1, 1993. On September 29, in accordance with Court of Appeals Rule 14 (a), appellant was ordered to file enumerations of error and brief no later than October 4. Appellant’s trial counsel requested an extension of time. He advised that he had not been appointed to represent appellant beyond trial but had filed the notice of appeal to protect defendant’s rights, that he was undergoing treatment for a serious illness, that the transcript had not been completed, and that a motion for new trial had been filed pro se. On October 19, counsel requested that the case be remanded for a determination on the motion for new trial and completion of the trial transcript. Accordingly, we remanded the case on November 9.

The trial court determined that no motion for new trial had been filed, the record was again transmitted to this court, and the appeal was redocketed on November 22. No action was taken by or on behalf of appellant, and on January 14, 1994, the court ordered enumerations of error and a brief to be filed no later than January 21. To date there is neither enumerations nor brief, and no correspondence.

In Whittle v. State, 210 Ga. App. 841 (437 SE2d 842) (1993), we re-examined the rule stated in Lee v. State, 203 Ga. App. 487, 488 (1) (417 SE2d 426) (1992), and we held that in a pro se case “when an appellant elects to pursue his own appeal, and fails to file enumerations of error or a brief after having been ordered to do so by this court, the appeal will be dismissed.” Whittle, supra at 842. Since our decision in Whittle, we have not confronted the issue raised when appellate procedure is not followed in a case in which the appellant is represented.

“Under Evitts v. Lucey, [469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985),] the State may not cut off a defendant’s access to the appeals system because his lawyer provided ineffective assistance by failing to follow mandatory appellate rules. However, Evitts v. Lucey clearly did not require that an appellate court ignore violation of its procedures, and attempt to decide every case on the merits regardless of its posture before the court. ‘If instead a state court chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so if such action does not intrude upon the client’s due process rights.’ Evitts v. Lucey, supra at 399.” Lee, supra at 491 (Andrews, J., dissenting). “As Evitts v. Lucey made clear in the context of a represented appellant, the task is not to necessarily decide every case on the merits, but to ensure that every criminal defendant is provided due process of law by having adequate and effective access to the state created appeals system.” Lee, supra at 492.

Lee and its companion cases were overruled on this issue in Whittle, supra at 842. The procedure employed in those cases was not called for by Evitts v. Lucey, supra. Lee, supra at 489 (Beasley, J., dissenting). To assure that due process requirements are met, as referred to in Evitts, what must be provided is the opportunity for the direct appeal of right which is provided by statute in OCGA § 5-6-33 (a) (1). “Nothing in the State or Federal Constitution grants a defendant a right to appellate review. . . .” Thomas v. State, 260 Ga. 262, 263 (392 SE2d 520) (1990).

This is a court of review. 1983 Ga. Const., Art. VI, Sec. V, Par. III. Requests for review are initiated by parties, not by the court. If a party does not prosecute the appeal which he or she or it has instigated by filing a notice of appeal and causing the record to be transmitted to this court, there is no basis for us to do anything other than dismiss it for failure to follow the prescribed procedure in a timely fashion.

It is not our office, as a court of review of alleged error brought before it, to investigate the cause of the absence of alleged error. We do not do so, in other appeals which are pursued, with respect to why enumerations of error are not argued or supported by authority or why certain apparent errors are not enumerated. They are simply regarded as having been abandoned. See Hardwick v. State, 210 Ga. App. 468, 470 (8) (436 SE2d 676) (1993); Talley v. State, 200 Ga. App. 442, 443 (3) (408 SE2d 463) (1991); cases listed in Lee v. State, supra at 490 (Beasley, J., dissenting). Nor is there a due process requirement for the trial court to investigate either, absent an affirmative assertion by a would-be appellant. There is a mechanism for relief, to originate in the trial court, if the right of a criminal defendant to a direct appeal is unconstitutionally thwarted. By dismissing the appeal, we would not be affirming the judgment. Cf. Taylor v. State, 197 Ga. App. 678, 680 (2) (399 SE2d 213) (1990).

If the abandonment of the appeal is the result of counsel’s negligence or ineffectiveness, then defendant pro se or current counsel or new counsel can move the trial court for an out-of-time appeal. Upon a showing, in a hearing if necessary, that the abandonment was not attributable to defendant (State v. Denson, 236 Ga. 239 (223 SE2d 640) (1976)), and he or she wants to pursue appeal, then the trial court can simply permit it. In those proceedings the trial court will be informed of the facts and will be able to reprimand and sanction current counsel for the dismissal of the first appeal if fault lies with counsel. The trial court will also be able to appoint new counsel if defendant desires such and is entitled to it. The direct appeal can then proceed afresh, upon redocketing in this court.

Decided July 15, 1994.

Mark W. Levine, for appellant.

Lewis R. Slaton, District Attorney, Suzanne Wynn, Assistant District Attorney, for appellee.

If, on the other hand, defendant does not desire to pursue the appeal, the dismissal at this time would conclude the case, for failure to proceed. It is sufficient simply to dismiss the appeal, if the rules and the law governing appeals are not followed. See, e.g., Rule 27 and OCGA § 5-6-40. That would also be uniform with what Rule 26 (a) provides when cases are not prosecuted on the call of the case for argument.

Thus, in accordance with Court of Appeals Rule 14 (a), we should exercise our discretion both with respect to pro se and represented cases and dismiss the appeal if it is not pursued. To assure notice, a copy of the dismissal should be sent to appellant, as well as to counsel, with direction that counsel also send a copy to appellant.

To the extent that the following cases are inconsistent, they should be overruled: Allen v. State, 192 Ga. App. 320 (385 SE2d 29) (1989); Sarver v. State, 206 Ga. App. 459 (426 SE2d 48) (1992); Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987); and DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985).

I am authorized to state that Judge Andrews, Judge Johnson and Judge Smith join in this dissent.


author: Beasley, Presiding Judge. Andrews, Judge,

text:
    A94A0619.
    AMBERLEY SUITE HOTEL v. SOTO.
    (446 SE2d 778)
   Beasley, Presiding Judge.

Amberley Suite Hotel appeals from the jury verdict and judgment in favor of Soto on his negligence claim, enumerating as error the denial of its motion for directed verdict and the court’s failure to give portions of two requested jury charges.

1. “ ‘In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the any evidence test.’ . . . [Cit.]” Re/Max of Ga. v. Real Estate Group on Peachtree, 201 Ga. App. 787, 788 (1) (412 SE2d 543) (1991). Viewing the evidence in favor of Soto, it showed the following.

Soto was employed as a security guard and, beginning in October 1989, he was assigned to the Amberley Suite Hotel, where he worked the 11:00 p.m. to 7:00 a.m. shift. His duties included patrolling the premises and completing an “Officer’s Daily Activity Report” which recited his patrol activities, including any items which might need the attention of the hotel’s maintenance staff. His report would be turned in at the end of each shift to Argot, the night auditor. She then gave the reports to the general manager for whatever action was required.

In December, Soto orally reported to Argot a water leak in the third floor corridor of Building # 1. On February 9, 1990, Soto’s report included a notation at 6:46 a.m. that he had checked the corridors and “found several leaks in ceiling on level 3 corridors of Building # 1.”

On March 16, 1990, after his initial inspection round at 10:52 p.m., Soto advised both Argot and Thompson, the night manager, that he again noticed a leak in the third floor corridor of Building # 1. Someone had placed a bucket under it to catch falling water, which was leaking through a hole approximately the size of a dime. Thompson told Soto that as long as the leak did not affect hotel guests, he should not worry about it. Argot, who also handled guest registration, was told not to place anyone in rooms in that area. Thompson did tell Soto to “[j]ust make sure the bucket does not overflow.”

At 3:45 a.m. on March 17, Soto noticed that the bucket was full and, as directed by Thompson, he emptied it by dumping it off the third floor breezeway. As he was returning the bucket to its position, he noticed a slight bulge in the ceiling. He bent over to put the bucket down, a door slammed, and a portion of the ceiling fell onto his neck, shoulders, and back. He reported the incident to Argot, who described him as drenched in water, covered with white particles, and looking faint. The incident was noted in both Soto’s and Argot’s written reports. Argot inspected the area and noted a missing piece of sheetrock and ceiling about the size of a dinner plate.

The engineer of the hotel testified that he attempted to fix the leak one week before the accident and that there were obvious stains on the ceiling indicating a water leak. He also testified that he had replaced the roof in the same area on another occasion because it was beginning to sag due to a leak.

An experienced sheetrock contractor testified that when sheet-rock gets wet over a period of time, it will discolor and eventually fall or pull away from the ceiling due to the saturation and weight of the water. Sometimes it will form a pocket containing liquid. He had seen fallen chunks as big as four feet and the size would depend on how much liquid accumulated in the ceiling.

Soto testified that he had no experience in the handling of sheet-rock or in the construction of sheetrock. All he knew was that there was a bulge in the sheetrock and a hole about the size of a dime in the ceiling.

Although Soto completed his shift after the incident, Argot insisted he go to the emergency room and took him. He was x-rayed and, although released, he missed a period of work because of the soft tissue damage. He was treated by several doctors, physical therapists, a chiropractor and, because of chronic pain, a psychologist.

“ ‘ “The decisive issues are: ‘(1) fault on the part of [Amberley], and (2) ignorance of the danger on the part of [Soto].’ ” ’ (Emphasis supplied; citations omitted.) [Cit.]” Biggs v. Long, 212 Ga. App. 195, 201-202 (4b) (441 SE2d 677) (1994).

It is undisputed that Soto had knowledge of the leak and the bulge. This court has recognized “ ‘that “knowledge of the defect” does not necessarily equal “knowledge of the danger,” (cit.), “(t)he crucial question is whether (appellant) should have had a full appreciation of the danger, and in the exercise of ordinary care [he] should have avoided the injury to [himself]. . . . (Cits.)”. . . (Cit.)’ [Cit.]” Dunn v. Gourmet of Macon, 207 Ga. App. 826, 828 (429 SE2d 282) (1993). The conclusion as a matter of law that Soto appreciated the danger of the ceiling falling and injuring him simply because he saw the bulge is unwarranted.

In Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477) (1986), plaintiff entered the store to purchase an item and noticed that the store was being remodeled. She exited, intending to walk to another nearby store but found the sidewalk blocked by construction debris placed there by defendant. Atkinson attempted to try to traverse the debris because the only other route available was to walk out onto the street which was heavily trafficked. She stated that she knew she would have to be careful but nevertheless slipped and fell on a sharp object which was in the debris. The trial court granted summary judgment concluding that Atkinson had equal knowledge of the hazardous condition. This court reversed. Id. at 140.

The plurality concluded that Atkinson was well aware of the construction debris and the need to be careful in traversing it. It stated, however, that “it does not follow that she was fully aware, as a matter of law, of the full extent of the danger involved in doing so. It has repeatedly been held that ‘mere knowledge’ of the existence of a dangerous or defective condition does not necessarily constitute ‘full appreciation of the risk involved.’ [Cits.]” Id. It concluded that the evidence did not establish that Atkinson’s knowledge of the danger was equal to or superior to that of defendant and that the determination should be made by the jury. The special concurrence focused on the choice of two alternative theories, with respect to the exercise of ordinary care, rather than whether Atkinson had equal or superior knowledge of the danger. Id. at 140-141.

In Robinson v. Western Intl. Hotels, 170 Ga. App. 812 (1) (318 SE2d 235) (1984), a man parked his car in the valet parking provided by the hotel he was staying in. The valet clerk misplaced his keys and asked him if he would come to the valet booth and identify them. Id. The man followed the valet clerk into an “employees only” area of the garage and stepped into the booth after negotiating an unusually high step. Id. Upon exiting the booth, the man missed the step and fell forward onto the pavement. Id. He sued the hotel and the trial court granted summary judgment in favor of the hotel. This court reversed because “the issue is whether Mr. Robinson was aware of the danger inherent in the conditions surrounding the booth, not merely whether he was aware of the existence of the conditions themselves.” Id. at 814. It was held that “ ‘[w]e cannot say that under these circumstances that a conclusion, as a matter of law, is demanded that the plaintiff should have had a full appreciation of the danger, and that in the exercise of ordinary care (he) should have avoided the injury to (himself). This, we think is a question for the jury.’ Firestone Service Stores v. Gillen, [58 Ga. App. 782, 787 (199 SE 853) (1938)]. See also Scott v. Rich’s, 47 Ga. App. 548 (171 SE 201) (1933).” Id. at 815. See also Goldsmith v. Hazelwood, 93 Ga. App. 466, 469 (92 SE2d 48) (1956); Pippins v. Breman, 152 Ga. App. 226, 228 (262 SE2d 477) (1979); Gerdes v. Dziewinski, 182 Ga. App. 764, 766 (2) (357 SE2d 110) (1987). These cases distinguish between “knowledge of the condition” and “knowledge of the danger.”

Here, the evidence is that the hotel had at least constructive knowledge of the leak. In addition, the testimony of the engineer indicates that the hotel had constructive knowledge that such a leak could saturate the ceiling. Under Atkinson and Robinson, the fact that Soto saw the bulge in the ceiling is not the crucial question in determining liability but rather whether he appreciated the danger. Soto testified that he had no prior experience with sheetrock or any other roofing material. The hotel engineer testified that he attempted to repair the ceiling less than a week before it collapsed. Only the hotel was in a position to examine any structural weaknesses in the ceiling which could cause it to collapse, as well as to determine the magnitude of the problem and the consequences of failing to remedy it. Soto was a security guard, not a maintenance man. Further, the record does not indicate whether the bulge in the ceiling had suddenly appeared immediately prior to collapse of the ceiling, or if it had been there all night and suddenly fell. The trial court concluded that whether Soto knew of the danger and fully appreciated it were questions for the jury to determine. The record does not establish that Soto’s knowledge that the ceiling could fall was equal to or superior to that of the hotel. There was evidence to support the denial of a directed verdict.

Decided July 15, 1994.

Jenkins & Eells, Frank E. Jenkins III, for appellant.

Blank & Associates, A. Russell Blank, for appellee.

2. Appellant has shown no reversible error with respect to the two jury charges enumerated.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Johnson, Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur. Birdsong, P. J., and Andrews, J., dissent.

Andrews, Judge,

dissenting.

The basis for imposing liability on the hotel is the rule that a proprietor’s liability must be premised on his superior knowledge of a dangerous condition or hazard that was the proximate cause of the invitee’s injury. See Bunch v. Stanton, 174 Ga. App. 233, 235 (329 SE2d 538) (1985), rev’d on other grounds, Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 824 (415 SE2d 654) (1992); Coates v. Mulji Motor Inn, 178 Ga. App. 208, 210 (342 SE2d 488) (1986).

The hotel knew there was a leak in the ceiling because Soto reported it. The hotel did not know, as did Soto, that the leak had produced a bulge in the wet sheetrock ceiling “the size of a basketball.” The dangerous condition or hazard was not the leak but rather the basketball-sized defect created in the wet ceiling, and one does not have to be an expert in sheetrock to know that such a defect will ultimately fall.

Inasmuch as the majority opinion is contrary to the law of this State and the law of gravity, I must respectfully dissent.

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


author: Judge Harold R. Banke.

text:
    A94A0959.
    BURNS v. RADIOLOGY ASSOCIATES OF GWINNETT, P. C. et al.
    (446 SE2d 788)
   Judge Harold R. Banke.

The appellant filed an action on March 16, 1989, alleging that the appellees misread a chest x-ray taken of his wife on March 19, 1984, revealing cancer in her left lung, which allowed the cancer to spread to both lungs and caused her death on October 18, 1987. The case was filed within the two-year wrongful death statute of limitation and the five-year medical malpractice statute of repose in compliance with OCGA § 9-3-71 (a) and (b). On November 2, 1990, the appellant voluntarily dismissed the action and refiled it on April 24, 1991, as provided by OCGA § 9-2-61. He appeals from an order entered October 4, 1993, granting the appellees’ motion to dismiss the wrongful death action as barred by the statute of repose.

Decided July 15, 1994.

MacDowell & Associates, C. Frederick MacDowell, for appellant.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., for appellees.

This case is controlled by Wright v. Robinson, 262 Ga. 844, 846 (1) (426 SE2d 870) (1993), in which the Supreme Court concluded “that the legislature never intended for the dismissal and renewal statutes to overcome the statute of repose. A voluntary dismissal terminates the action completely. [Cit.] ‘An action renewed pursuant to OCGA § 9-2-61 (a) is an action de novo.’ [Cits.] . . . [I]t logically follows that a new suit on a nonexisting cause of action cannot proceed.” Accordingly, the trial court properly dismissed the action in this case.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.