text:
    A92A1847.
    THE STATE v. WILLIS.
    (427 SE2d 306)
   Carley, Presiding Judge.

Appellee was charged with possession of a firearm by a convicted felon and obstruction of an officer. He filed a pre-trial motion to suppress which was granted by the trial court. It is from that order that the State brings the instant appeal.

It is undisputed that, at the time of initiation of the encounter, the officer had neither probable cause to arrest appellee nor an articulable suspicion of appellee’s criminal activity. According to the officer, he was on routine patrol in the same high-crime area that he had been patrolling for two years when he observed appellee. Since appellee was a stranger to the officer, the officer approached and merely asked if appellee lived in the area. When appellee indicated that he did, but could not supply a specific address, the officer asked for identification. Appellee produced a temporary driver’s license which indicated that, less than a month previously, he lived at an address which was not located in the area. Appellee then admitted that he did not live in the area, but was visiting a friend. However, appellee was unable to tell the officer who his friend was. The officer then asked if appellee would consent to a search. According to the officer, appellee initially consented but, when the officer reached toward a large bulge in the pocket of appellee’s jacket, appellee bolted and ran. According to appellee, however, he did not give his consent to the search and fled only because the officer was nevertheless attempting to search him. The fleeing appellee was pursued, apprehended and a search of the pocket of his jacket revealed a semi-automatic pistol.

On this evidence, the trial court granted appellee’s motion to suppress, concluding that “the police officer did not have reasonable suspicion to stop and question [appellee].” This is clearly an erroneous basis for granting appellee’s motion to suppress. “ ‘(E)ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual (cits.); ask to examine the individual’s identification, (cits.); and request consent to search . . ., (cit.) — as long as the police do not convey a message that compliance with their requests is required.’ [Cit.] . . . ‘(I)t (is) clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free “to disregard the police and go about his business,” (cit.), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.’ [Cit.]” State v. Westmoreland, 204 Ga. App. 312-313 (1) (418 SE2d 822) (1992). See also Vance v. State, 205 Ga. App. 201 (421 SE2d 730) (1992); State v. Jackson, 201 Ga. App. 810, 813-814 (2) (412 SE2d 593) (1991).

It is undisputed that, at least until appellee fled, the encounter was consensual in nature and had not become a seizure. Appellee himself testified that he felt that he was free to leave and, in fact, fled to avoid being subjected to a non-consensual search. Compare State v. Westmoreland, supra at 313 (2). The only dispute is whether appellee had consented to being searched before he fled. If, as the officer testified, appellee had initially consented, the subsequent act of fleeing, coupled with appellee’s evasive answers regarding his presence in the high-crime area, would authorize a finding of probable cause to believe that the bulge in appellee’s jacket pocket was contraband of some sort. See State v. Reid, 247 Ga. 445 (276 SE2d 617) (1981); State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989); Brown v. State, 188 Ga. App. 417 (373 SE2d 99) (1988); Banks v. State, 187 Ga. App. 280, 281 (1) (370 SE2d 38) (1988); Green v. State, 127 Ga. App. 713, 715 (194 SE2d 678) (1972). If, as appellee testified, he had not consented, the act of fleeing would authorize a finding that appellee was merely acting in a justifiable attempt “ ‘to avoid the persistence of an officer who refused to take “no” for an answer.’ ” Jamison v. State, 262 Ga. 40 (414 SE2d 466) (1992).

Decided January 12, 1993.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellant.

Suellen Fleming, for appellee.

The trial court did not address the only disputed issue: Whether, as the officer testified, the consensual encounter had given rise to probable cause to believe that appellee was in possession of contraband or whether, as appellee testified, the consensual encounter had given rise to the officer’s unauthorized attempt to search appellee without his consent. “Instead, the trial court based its ruling upon the factually undisputed lack of an articulable suspicion. [Since] the trial court concluded that the State was required to show an articulable suspicion to justify initiation of a mere verbal encounter with appellee, the grant of the motion was predicated upon an erroneous legal theory.” State v. Akinsonwon, 200 Ga. App. 287, 288-289 (407 SE2d 434) (1991). Accordingly, the trial court’s order must be reversed and the case remanded to the trial court for a redetermination of the relevant issue after consideration of all of the evidence.

Judgment reversed and case remanded with direction. Pope, C. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A1873.
    FLAIR FASHIONS, INC. v. SW CR EISENHOWER DRIVE, INC.
    (427 SE2d 56)
   Carley, Presiding Judge.

Appellant-defendant leased business premises in appellee-plaintiff’s shopping center. When appellee filed suit to recover past due rent, appellant answered, pleading fraud in the inducement as a defense, and also counterclaimed for fraud. Appellee moved for summary judgment. The trial court granted appellee’s motion and appellant appeals.

“[T]he contractual defense of fraud in the inducement by oral misrepresentations is the functional equivalent of a tort action for fraud and deceit. . . .” Potomac Leasing Co. v. Thrasher, 181 Ga. App. 883, 887 (2) (354 SE2d 210) (1987). Thus, regardless of whether alleged oral misrepresentations are relied upon offensively or defensively, “ ‘[t]he presence of a merger clause in the underlying contract is determinative if the defrauded party has not rescinded but has elected to affirm the contract. . . . (Cits.)’ [Cit.]” Nexus Svcs. v. Manning Tronics, 201 Ga. App. 255 (2) (410 SE2d 810) (1991). There is a merger clause in the instant lease, which provides that the “lease contains the entire agreement between the parties and no agreement, representation or inducement shall be effective to change, modify or terminate this lease in whole or in part unless in writing and signed by the parties.” Accordingly, unless a genuine issue of material fact remains as to appellant’s rescission of the lease, the merger clause would authorize the grant of summary judgment in favor of appellee.

“ ‘It is a well settled rule that if a party who is entitled to rescind a contract because of fraud or false representation, when he has full knowledge of all the material circumstances of the case freely and advisedly does anything which amounts to the recognition of the transaction, or acts in a manner inconsistent with its repudiation, it amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable even in equity. It is incumbent upon a party who attempts to rescind a contract for fraud to repudiate it promptly on discovery of the fraud. (Cits.) ... (If he does not), (h)e will be held to have waived any objection, and to be conclusively bound by the contract as if no fraud or mistake had occurred. (Cit.)’ [Cit.]” Jernigan Auto Parts v. Commercial State Bank, 186 Ga. App. 267, 271 (3) (367 SE2d 250) (1988). See also Precision Label Indus. v. Jones, 185 Ga. App. 161, 162 (1) (363 SE2d 605) (1987).

Construing the evidence most favorably for appellant shows the following: Appellee misrepresented the names of those merchants who had already rented or had committed to rent space in the shopping center. In reliance on these misrepresentations, appellant executed the lease on March 29, 1987. Appellant occupied the leased premises for the entire three-year term, during which time appellant continued making at least partial payments of rent. During the last two years of the lease, appellant was in financial difficulty and eventually became insolvent. However, it was not until July 5, 1990, after the expiration of the three-year term, that appellant attempted to rescind the lease.

There is no evidence to explain how it was possible that appellant lacked the knowledge, for more than three years, that many of its supposed neighbors in the shopping center had not moved in or to explain why, possessing such knowledge, appellant delayed so long in repudiating the lease. It is true that “ ‘[t]he question as to what is a reasonable or proper time within which to rescind a contract depends upon the facts of the particular case and is ordinarily a question for the jury[.] . . .’ [Cits.]” (Emphasis supplied.) Newton v. Burks, 139 Ga. App. 617, 618 (3) (229 SE2d 94) (1976). However, “[n]o sufficient reason or excuse was set up to explain or account for the long delay in this case. [Cits.]” Neely v. Oliver Farm Equip. Sales Co., 52 Ga. App. 166, 168 (2) (182 SE 630) (1935) (18-month delay). “Even accepting [appellant’s] evidence . . . that the [lease was] entered into because of [appellee’s] fraud, [appellee] was still entitled to judgment because [appellant] waived the fraud and ratified the [lease] by [its] silence after [the falsity of appellee’s representations became apparent] and by their subsequent payments on the [lease].” Jernigan Auto Parts v. Commercial State Bank, supra at 271 (3) (11-month delay). Accordingly, the trial court correctly granted appellee’s motion for summary judgment. Woodall v. Beauchamp, 142 Ga. App. 543 (1) (236 SE2d 529) (1977) (year-long delay). See also Jordy v. Dunlevie, 139 Ga. 325 (2) (77 SE 162) (1913) (16-month delay).

Decided January 12, 1993.

Oliver, Maner & Gray, Wendy W. Williamson, for appellant.

Alston & Bird, Lori G. Cohen, Scott A. McLaren, for appellee.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1983.
    STUDDARD et al. v. GEORGE D. WARTHEN BANK et al.
    (427 SE2d 58)
   Carley, Presiding Judge.

Alleging that appellee-defendants had breached an agreement to loan them $80,000, appellant-plaintiffs brought suit to recover in fraud and contract. Appellees answered and counterclaimed, seeking to recover on notes which were allegedly in default. After discovery, appellees moved for summary judgment on their own counterclaim as well as on appellants’ main claim. The trial court granted summary judgment in favor of appellees and appellants appeal.

1. Construing the evidence most favorably for appellants, they borrowed $40,000 from appellees pursuant to an oral extension of a $120,000 line of credit, but were subsequently denied the additional $80,000 when they sought to borrow it. However, such a commitment to lend appellants money would have to be evidenced by a writing signed by appellees. OCGA § 13-5-30 (7). The fact that appellees did loan appellants $40,000, as evidenced by a note, would not serve to take the alleged oral agreement outside the Statute of Frauds. “In order to remove the alleged oral contract from the Statute of Frauds ‘(t)he part performance shown must be consistent with the presence of a contract and inconsistent with the lack of a contract.’ [Cit.]” Katz v. Custom Spray Products, 168 Ga. App. 451, 452 (309 SE2d 663) (1983). The act of lending appellants $40,000 may be entirely consistent with an agreement to lend them an additional $80,000, but it is not at all inconsistent with the lack of an agreement to lend them any additional sum whatsoever. The lending of $40,000 in no way tends to prove that appellees agreed to the oral contract that appellants seek to enforce. See Valiant Steel & Equip. v. Roadway Express, 205 Ga. App. 237, 239 (2) (421 SE2d 773) (1992). To hold that the mere act of lending any sum to a borrower will serve to render enforceable an alleged oral agreement to lend some additional sum would negate OCGA § 13-5-30 (7) and have the anomalous effect of subjecting the lenders of this state to potentially fraudulent claims despite the protection ostensibly afforded them under the Statute of Frauds. It follows that the trial court correctly granted summary judgment in favor of appellees as to appellants’ contract claim.

Decided January 12, 1993.

The Groover Firm, Lewis M. Groover, Jr., for appellants.

Alston & Bird, Jennifer B. Moore, Ben F. Johnson III, for appellees.

2. The trial court likewise correctly granted summary judgment in favor of appellees as to appellants’ fraud claim. “Although fraud can be predicated on a misrepresentation as to a future event where the defendant knows that the future event will not take place ([cits.]), fraud cannot be predicated on a promise which is unenforceable at the time it is made. [Cits.]” (Emphasis supplied.) Beasley v. Ponder, 143 Ga. App. 810 (240 SE2d 111) (1977). The instant alleged oral contract was unenforceable at the time it was purportedly made because it was not in writing as required by OCGA § 13-5-30 (7). Obviously, one cannot sue in fraud based upon the alleged breach of an oral contract which would itself be unenforceable under the Statute of Frauds. See Royal v. Bland Properties, 175 Ga. App. 250, 251 (2) (333 SE2d 145) (1985).

3. With regard to appellees’ counterclaim, there is no dispute either as to the execution of the notes or as to appellants’ default thereon. In the original and supplementary evidence offered in support of the motion for summary judgment, appellees showed the amounts of unpaid principal and interest that were owing on the notes. In opposition, appellants offered nothing to demonstrate the existence of any genuine issue of material fact. It follows that summary judgment was properly granted in favor of appellees.

Judgments affirmed. Pope, C. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A1688.
    BATES & ASSOCIATES, INC. v. ROMEI.
    (426 SE2d 919)
   Birdsong, Presiding Judge.

Bates & Associates, Inc. (Bates) appeals the trial court’s order granting the motion of appellee R. E. Romei d/b/a Structural Technics (Structural) “to dismiss and/or for summary judgment.”

Structural brought suit seeking recovery from Bates, a general contractor, and St. Paul Fire & Marine Insurance Company, as surety, under a public contractor’s bond, for charges made against Alpha Steel, a Bates’ subcontractor, for a shop drawing allegedly furnished to Alpha Steel for its use in the fabrication of steel for Bates’ use in building certain warehouses. The shop drawing was provided Alpha pursuant to a sub-subcontract between Alpha and Structural. The payment bond obtained by Bates was issued as required by the “Little Miller Act.” See generally OCGA §§ 13-10-1 et seq.; 36-82-100 et seq.

Bates filed a counterclaim against Structural to recover damages sustained as a result of alleged errors in the shop drawing, which caused it to suffer increased overhead, delay damages, and erection expenses. In a nine-page opinion, the trial court dismissed Bates’ counterclaim for lack of privity between the parties and because the economic loss rule also applied thereto. Bates asserts the trial court erred in dismissing its counterclaim. Held:

1. Review of appellant Bates’ counterclaim and amended counterclaim reveals that the claim therein averred is only ex delicto and not ex contractu in nature. The counterclaim and amended counterclaim fail to provide adequate notice of any ex contractu claim, notwithstanding such notice is required by the liberal provisions of the Civil Practice Act. See generally Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924). Also, the counterclaim, as amended, contains no averment of wilful misrepresentation on the part of Structural; however, it does reasonably place appellee/defendant on notice of a counterclaim based on negligence arising from alleged misfeasance of duty. See generally Long v. Jim Letts Olds., 135 Ga. App. 293, 294 (2) (217 SE2d 602).

2. The main claim averred in Structural’s complaint is grounded on its legal status as a legitimate claimant under the statutory required coverage of the payment bond, as a person supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in the contract between Bates and its subcontractor Alpha Steel (see generally OCGA §§ 13-10-1 (b) (2) (A); 36-82-104 (b)). It is not grounded upon any claim of alleged privity between Bates and Structural arising from the contract entered into between Bates and Alpha Steel. Moreover, we conclude that by promulgating statutory payment bond requirements designed to protect, in addition to all subcontractors, all persons supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in the contract, the General Assembly intended to protect such subcontractors and persons regardless whether they stood in privity with the prime contractor. OCGA § 36-82-100 (2) (even the term “subcontractor” is not limited to persons having privity of contract with the prime contractor); see also Tom Barrow Co. v. St. Paul Fire &c. Ins. Co., 205 Ga. App. 10 (421 SE2d 85); Sunderland v. Vertex Assoc., 199 Ga. App. 278 (404 SE2d 574). From the posture of the record, we conclude there exists no privity of contract between Bates and Structural, and that the trial court did not err in so holding.

3. Contrary to appellant’s contention, citing Henderson v. General Motors Corp., 152 Ga. App. 63 (262 SE2d 238), the Georgia “economic loss rule” is not limited in application to strict liability claims. Compare McClain v. Harveston, 152 Ga. App. 422 (263 SE2d 228) and Chrysler Corp. v. Taylor, 141 Ga. App. 671 (234 SE2d 123) with Long, supra; see Flintkote Co. v. Dravo Corp., 678 F2d 942, 950 (13) (11th Cir.).

4. The Georgia “economic loss rule” in essence prevents recovery in tort when a defective product has resulted in the loss of the value or use of the thing sold, or the cost of repairing it. Long, supra at 295 (2); Flintkote, supra at 948 (6); accord Vulcan Materials Co. v. Driltech, 251 Ga. 383, 387 (3) (306 SE2d 253). (The “cost of repairing the thing sold” is not a concept of narrow application, but includes, inter alia, the cost of modifying the thing sold, that is, the repairing or remedying of a deficiency, to cause the thing to be merchantable or suitable for its intended use.) Under such circumstances, the duty breached is generally a contractual one and the plaintiff is merely suing for the benefit of his bargain. Vulcan, supra; Flintkote, supra. The rule does not prevent a tort action to recover for injury to persons or to property other than the product itself, because the duty breached in such situations generally arises independent of the contract. Flintkote, supra; see Long, supra; OCGA § 51-1-11 (a). Nor does the rule preclude recovery for damages to the defective product itself where the injury thereto resulted from accident. Vulcan, supra; Long, supra; Flintkote, supra. But, where there exists no accident, and no physical damage to other property, and the only loss is a pecuniary one, through loss of the value or use of the thing sold, or the cost of repairing or modifying it, the courts adhere to the rule that purely economic interests are not entitled to protection against mere negligence, and accordingly deny recovery. Id.

5. Bates asserts that even if the economic loss rule applies to tort actions other than those involving strict liability claims, the circumstances of this case bring it within a limited exception to the rule, and thus recovery for any alleged economic injury should be allowed. See generally Robert & Co. Assoc. v. Rhodes-Haverty &c., 250 Ga. 680 (300 SE2d 503).

In Robert & Co. Assoc., supra, the court was confronted with a situation involving the issuance of a report on the condition of a building, which allegedly contained negligent misrepresentations as to the condition of the building. The engineers issuing the report knew that prospective buyers could rely on the report. In this case, we are confronted with the issuance of a shop drawing and not a condition report. A shop drawing basically is the mechanical process by which the design instructions of the structural engineer are transcribed for use by the fabricating personnel in the steel fabricator’s shop. Thus, by its very nature, it is created for the use by a very limited class, that is, steel fabricators. It is against this background that we must examine the precedent of Robert & Co. Assoc., supra, and the trial court’s ruling.

In Robert & Co. Assoc., supra at 681-682, the Supreme Court held: “[0]ne who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. In making a determination of whether the reliance by the third party is justifiable, we will look to the purpose for which the report or representation [or shop drawing] was made. If it can be shown that the representation was made for the purpose of inducing third parties to rely and act upon the reliance, then liability to the third party can attach. If such cannot be shown there will be no liability in the absence of privity [which does not exist between appellant and appellee in this case], wilfulness, or physical harm or property damage [as above discussed under the economic loss rule]. The additional duty that this rule imposes may be, of course, limited by appropriate disclaimers which would alert those not in privity with the supplier of information that they may rely upon it only at their peril.” (Emphasis supplied.)

In Gulf Contracting v. Bibb County, 795 F2d 980, 982 (11th Cir.), the United States Court of Appeals explained a portion of the requirements of Robert & Co. Assoc., supra, thusly: “Privity is not required to support an action for negligent misrepresentation by ‘(o)ne who, in the course of his business, profession or employment, . . . supplies false information for the guidance of others in their business transactions.’ [Cit.] Liability is limited, however, to ‘a foreseeable person or limited class of persons for whom the information was intended.’ [Cit.] Those persons must also show reasonable reliance on the false information, specifically that the information was given for the purpose of inducing their reliance.” (Emphasis supplied.)

Under the precedent of Robert & Co. Assoc., supra, liability cannot be imposed unless: (a) the maker, as therein defined, who supplied the false information was manifestly aware of the use to which the information was to be put and intended that it be so used (it is not sufficient that the maker should have been aware of the use to which the information was to be put, rather the requirement is that of a manifest awareness. That which is manifest is that which is evident to the senses, obvious to the understanding, evident to the mind, not obscure or hidden, and is synonymous with that which is open, clear, visible, unmistakable, indubitable, indisputable, evident, and self-evident. Black’s Law Dictionary (5th ed.)); (b) the recipient of the information was a foreseeable person or a member of a limited class of persons for whom the information was intended; and (c) the recipient must show reasonable reliance on the false information and that the information was given for the purpose of inducing the third party recipient to rely and act upon the reliance (in this regard, mere reliance by the recipient is insufficient in the absence of the requisite intent of purpose by the maker to induce such reliance). If any of these essential elements are absent, the rule of Robert & Co. Assoc., supra, does not apply, and there will be no liability unless appellant can comply with the requirements of the Georgia economic loss rule or its emergency exception. Robert & Co. Assoc., supra at 682; accord Gulf Contracting, supra.

The trial court attempted to distinguish the case at bar from Robert & Co. Assoc., supra, affirming Rhodes-Haverty &c. v. Robert & Co. Assoc., 163 Ga. App. 310 (293 SE2d 876). In doing so, the trial court stated, “in this case, the third party [appellant Bates] did not rely on the ‘shop drawings’ prepared by [appellee] and furnished to [appellee’s] contractual partner, Alpha. Although these drawings . . . were essential to the proper manufacture of the steel ultimately utilized by Bates in the construction of the project, it was Alpha, not Bates, who relied upon these drawings. Therefore, the narrowly drawn exception to the economic loss rule does not apply here.” However, the trial court’s finding of fact that the shop drawings were not utilized by Bates is directly in contravention of the factual assertion contained in the affidavit of Bates’ president that, “these shop drawings were used by Bates ... in the construction of Warehouse No. 27.”

The trial court, as reflected on the face of its order, erroneously distinguished Robert & Co. Assoc., supra, on the basis that Bates did not rely on the shop drawings, and consequently did not apply the test therein prescribed to determine if the very narrow exception to the economic loss rule in Robert & Co. Assoc., applied to the case at bar. Further, the trial court dismissed the counterclaim rather than granting summary judgment notwithstanding that the trial court’s order reflects matters outside the pleadings were considered in determining that the Georgia economic loss rule did not apply. See OCGA § 9-11-12. As the issue of applicability of the economic loss rule is inextricably linked to the issue of privity in the determination as to the viability of appellant’s counterclaim, appellee’s motion properly should have been treated as a motion for summary judgment, and the standards pertaining thereto applied in reaching disposition of the counterclaim. OCGA § 9-11-56.

Decided January 13, 1993.

Ben Kirbo, for appellant.

Smith, Curry & Hancock, David A. Dial, John E. Menechino, Jr., for appellee.

Judgment is vacated and the case is remanded to the trial court with direction to reconsider the motion in a manner consistent with this opinion and to re-examine the various assertions of fact contained in the affidavits of record to determine whether the stringent requirements of Robert & Co. Assoc., have been met in this instance.

Judgment vacated and remanded with direction. Beasley and Andrews, JJ., concur.


text:
    A92A1927.
    FLOYD S. PIKE ELECTRICAL CONTRACTORS et al. v. WILLIAMS.
    (427 SE2d 67)
   Birdsong, Presiding Judge.

This is a discretionary appeal of the order of the superior court affirming the award of the State Board of Workers’ Compensation which refused to apply the so-called Rycroft defense (see generally Ga. Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111)) retroactively to terminate payments of certain benefits to appellee/claimant Richard A. Williams.

Appellee knowingly and wilfully concealed information concerning his previous seven back injuries, two corrective surgical procedures and claims at the time he applied for employment with appellant/employer Floyd S. Pike Contractor (Pike). On December 14, 1988, appellee was injured by an accident arising out of and in the course of his employment with Pike; following the injury appellee experienced pain and symptoms in the same areas of his body that had bothered him following each of his previous back injuries. The December 14, 1988 injury was accepted as compensable by appellant Pike and appellee was paid workers’ compensation benefits by Pike for this injury; such payments were continued by agreement of the parties pending the outcome of the hearing in this case.

On January 30,1989, appellant/insurer Liberty Mutual Insurance Company obtained knowledge of appellee’s prior back injuries and surgeries. On February 16, 1989, Liberty commenced temporary total disability payments to appellee at the rate of $175 weekly. By the end of March 1989, Pike first learned of appellee’s prior back injuries and surgeries. Not until August 20, 1990, did Pike file its initial hearing request to assert their Rycroft defense.

The ALJ concluded that, although the three Larson factors necessary for a Rycroft defense (Rycroft, supra at 158) had been factually established, the Rycroft defense could not be applied retroactively. The full board affirmed the ALJ’s award. Held:

1. On appeal this court is required to construe the evidence most strongly to support the judgment. Williams v. Perry, 187 Ga. App. 586, 587 (1) (370 SE2d 836).

2. Pretermitting the issue whether the Rycroft defense should be given retroactive application is whether the statute of limitation inherent within the provisions of OCGA § 34-9-221 (h) (see generally Carpet Transport v. Pittman, 187 Ga. App. 463 (370 SE2d 651)) precludes Pike’s right to controvert payment of compensation, without award, to appellee when, by doing so, Pike is per force contesting appellee/employee’s right to compensation rather than merely contesting the correct amount of compensation to be awarded. Compare Leon Dawson &c. Prods. v. Walker, 192 Ga. App. 887 (386 SE2d 690).

(a) We find Carpet Transport, supra, as explained in Leon Dawson &c., supra, controlling regarding whether OCGA § 34-9-221 (h) promulgates a statute of limitation and the general scope thereof. Appellants neither argue nor provide this court with citations of authority in their appellate brief to establish that the compensation payments were controverted either on the grounds of newly discovered evidence or change in conditions; accordingly, any such claims would be abandoned (Court of Appeals Rule 15 (c) (2)) and would not be before us on appeal.

(b) We reject appellants’ contention that by applying the statute of limitation promulgated in OCGA § 34-9-221 (h) in the disposition of this case, we would be establishing precedent which would result in the applying of the Rycroft defense prospectively in some cases and retroactively in others. Assuming arguendo the Rycroft defense applies retroactively, such application does not become impermissibly inconsistent merely because we also enforce the statute of limitation promulgated in OCGA § 34-9-221 (h) against that class of litigants who fail to controvert the right of compensation within the requisite time limit of that statute. Expiration of the 60-day period in the statute of limitation bars appellants from controverting the employee’s right to compensation, and it is only by way of inextricable adjunct that appellants are also denied the use of any available Rycroft defense.

(c) We find equally unpersuasive appellants’ argument implying that a Rycroft defense (if it applies retroactively) per force constitutes an abrogation, by virtue of changing the law, of the protection provided by the statute of limitation promulgated in OCGA § 34-9-221 (h). It is clear that nothing contained in the Supreme Court’s opinion in Rycroft, supra, was intended to abolish or modify the statute of limitation in OCGA § 34-9-221 (h), and appellants cite no statutory law having this effect. Compare Snapper Power &c. Co. v. Crook, 206 Ga. App. 373 (425 SE2d 393).

(d) Appellants further assert that there exists in Georgia law an “implied tolling mechanism” which prevents the running of any statute of limitation “when a party’s claim has been fraudulently concealed.” Assuming without deciding that such an “implied tolling mechanism” does exist (see American Nat. Bank of Macon v. Fidelity &c. Co. of Maryland, 131 Ga. 854 (63 SE 622)), its scope would not extend beyond “[t]he general rule supported by the decisions in most jurisdictions . . . that the fraudulent concealment of a cause of action [or other legal or quasi-legal claim] from the one to whom it belongs, by the one against whom it lies, constitutes an implied exception to the [applicable] statute of limitations, postponing the commencement of the running of the statute until discovery or reasonable opportunity of discovery of the fact by the owner of the cause of action [or other legal or quasi-legal claim].” (Emphasis supplied.) 51 AmJur2d, Limitation of Actions, § 147; compare American Nat. Bank, supra. In this case, the record reveals that appellant Pike, through its crew supervisor who had authority to fire and hire, was aware of the concealment of the facts in issue at least before the end of March 1989. Thus, even if the “implied tolling” rule is applied to the facts of this case, our disposition thereof is not effected, as by the end of May 1989 (60 days after having notice of the facts conceded), appellant Pike still had failed to file the required notice to controvert.

However, appellants argue that, although they may have been on notice of the concealed facts, the Rycroft defense had not as yet been recognized by the courts and, thus, requiring them to pursue a nonexistent remedy within the 60-day period is an unrealistic and unfair standard. We disagree. In Rycroft, supra at 160, it was expressly held that “[t]he [Rycroft] defense asserted by the appellants relies on traditional theories of fraud and contract, and legislative action is unnecessary to apply the fundamental concepts of the common law of this state.” (Emphasis supplied.) We refrain from extending the concept of implied tolling provisions so as to toll statutes of limitation merely because a party has failed to apply traditional legal theories and fundamental concepts of the common law of this state to known, although previously concealed, facts thereby tailoring and perfecting an already existing legal remedy for their own use. See Snapper Power, supra. Additionally, even had we elected to apply an extended implied tolling provision in this case, it would be of no assistance to appellants. Rycroft, supra, was decided April 6, 1989, and appellants were charged with constructive knowledge of that law on that date as that is the date on which the opinion would be published in writing in some official form. See, e.g., McDowell v. Lackey, 204 Ga. App. 395 (419 SE2d 544) (announcing Supreme Court had modified the Posey rule effective the date of publication of its opinion); 20 AmJur2d Courts, § 83; cf. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI and Art. VI, Sec. V, Par. Ill; OCGA § 1-3-6. Moreover, the record reflects that appellant Pike, through its safety director, had actual knowledge of the Rycroft defense at least by June 1989. Nevertheless, appellants did not initially file a request for a hearing to controvert payment of compensation until August 20, 1990. Thus, even if tolling occurred 60 days after Rycroft was published, the 60-day statute of limitation would still have expired long before appellants filed formal notice to controvert with the board. Finally, we note that throughout their appellate brief, appellants constantly argue, expressly and impliedly, the equity of their situation. It is a hornbook concept that equity aids the vigilant, not he who slumbers on his rights.

Decided January 13, 1993.

Neely & Player, Andrew J. Hamilton, for appellants.

Farrar, Farrar & Hennesy, Joseph J. Hennesy, Jr., for appellee.

(e) The statute of limitation in OCGA § 34-9-221 (h) bars appellants from controverting appellee’s right to compensation (see Carpet Transport, supra), and we cannot change this result through a feat of judicial prestidigitation. We must interpret the law and apply it with an even hand; the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heartrending misfortune of the unlucky (Autry v. State, 150 Ga. App. 584, 587 (258 SE2d 268)).

Judgment affirmed. Beasley and Andrews, JJ., concur.


text:
    A92A1997.
    GARMON v. WAREHOUSE GROCERIES FOOD CENTER, INC.
    (427 SE2d 308)
   Birdsong, Presiding Judge.

Appellant/plaintiff Terry Steven Garmon appeals the order of the trial court granting appellee/defendant Warehouse Groceries’ motion for summary judgment in this suit for malicious prosecution and false imprisonment.

The following material facts are undisputed based on the posture of the record before us on appeal: Appellant and his wife entered appellee’s grocery store. As he crossed the front of the store and approached the tobacco display, appellant was noticed by the store manager who was in his office, and by two store employees performing security duty behind a see-through mirror in a security area above the meat counter. The tobacco area is one of the top three theft areas in the store. Appellant approached the display (which was located in close proximity of and visible to the cash registers in the front of the store) in a normal manner, openly and without looking around took possession of a can of snuff, which he “got . . . really fast,” and then “immediately walked off” to the area where his wife was shopping. He opened the snuff, removed some snuff which he put into his mouth, and placed the snuff can in his pocket. He was observed engaging in this open and visible conduct by the store manager and by both employees. The manager considered the point in the store where he observed appellant openly dipping snuff as being “out of the way” and “out of the normal shopping pattern.” By the time appellant opened the snuff can, one of the employees had repositioned himself in a back room, about ten feet away, watching the incident through the glass of the double doors of a cooler. Appellant continued shopping with his wife for about 45 minutes, and the couple bought approximately $68 worth of groceries. The couple, being under surveillance, went to the cash register; one of the employees reported to the manager what the two employees performing security duties had observed. The couple’s groceries were rung up on the cash register and during that time appellant neither removed the snuff from his pocket nor made any offer to pay for it. As appellant’s wife was in the process of paying the grocery bill, appellant was confronted about the snuff by the store manager. Appellant, who never denied having the snuff and never attempted to run, replied that he was sorry and attempted to pay for the item. Appellant was asked to accompany the manager to the office, grabbed by the arm in a non-confrontational manner, and directed to the office. Appellant attempted to explain that he put the snuff can in his pocket to prevent the open contents from spilling, he was going to pay for it, and he had forgotten about it being there. He again offered to pay for it but his offer was declined. At some point, appellant signed a store information form, captioned “Shop Lifter Information,” and bearing a signature block line labelled “Shop Lifter’s Signature.” Several minutes thereafter, appellant was told that the police would be called.

When the police arrived, appellant asked if he would be arrested; the store manager said, “yes,” and explained the store’s policy that any adult arrested for shoplifting would be prosecuted. The manager explained what had happened to the police, “and the police made the judgment and asked [the manager] if he wanted to prosecute,” and the manager replied in the affirmative. The police informed appellant he would be arrested for shoplifting, read him his rights, and placed him under arrest. Before leaving the premises and after being arrested, appellant was allowed in the presence of the police to pay for and take possession of the snuff. Appellant does not remember whether the police asked him what had happened; however, he did not speak with the police about what was going on, except to tell them that he was upset and did not understand it. After appellant was arrested for shoplifting, he was taken to the station in handcuffs, fingerprinted, booked, and released on bond.

Appellant appeared in city court for a preliminary hearing, but, after appellant requested through his counsel to be bound over to state court for jury trial, the store employees then present were not called to the stand to testify; neither did the witnesses discuss their testimony with the prosecutor. Appellant subsequently was re-booked, during a three-hour procedure at the holding facility, and was required to appear in state court under a charge of shoplifting. However, at that time, the prosecutor entered a nolle prosequi of the case on the grounds that due to anticipated conflicts in testimony, the state would be unable to prove appellant had the requisite criminal intent and that appellant had been allowed to pay for the snuff at the time of his arrest. Thus, the testimony of any store employees was not taken in state court. Held:

1. Facts and inferences asserted in briefs and not reasonably supported by the record cannot be considered on appellate review. See Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223). However, in ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). Nevertheless, a movant for summary judgment who is a defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lou's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the nonmoving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the nonmoving party’s case. In other words summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the nonmoving party, concludes that the evidence does not create a triable issue as to each essential element of the case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that is, the record reveals there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. Lau’s Corp., supra at 495.

2. “The lack of probable cause is the gravamen of a malicious prosecution action. [Cits.] Probable cause is absent when the circumstances would satisfy a reasonable person that the accuser had no ground for proceeding except a desire to injure the accused.” K-Mart Corp. v. Coker, 261 Ga. 745, 746 (1) (410 SE2d 425). Although criminal intent is a material element of shoplifting, a store employee need not determine the subjective intent of a suspected shopper before seeking an arrest and prosecution under the shoplifting statute. Id. at 747 (2). Furthermore, “criminal intent may be inferred from the ‘words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ ” Id. The basic question is whether, under the attendant circumstances, the suspected shopper’s conduct would “cause reasonably prudent persons to believe they had probable cause to prosecute [the shopper] for the offense of shoplifting.” Id. at 747 (4). “Although a jury normally decides whether probable cause exists, the judge determines the issue when the material facts are[, as in this case,] undisputed.” Id. at 746 (1); Williamson v. Alderman, 148 Ga. App. 297, 298 (1) (251 SE2d 153). Malice is also a material element of malicious prosecution, but “ ‘[a] total want of probable cause is a circumstance from which malice may be inferred.’ ” McMillan v. Day Realty Assoc., 159 Ga. App. 366, 368 (2) (283 SE2d 298). Examining the evidence of record, we are satisfied that there exists no genuine issue of material fact that appellant was subjected to arrest and prosecution without probable cause. We conclude from an examination of the undisputed facts of record that a reasonably prudent person, with the same knowledge as appellee’s store manager, would believe he had probable cause to prosecute appellant for shoplifting; accordingly, the trial court did not err in granting appellee summary judgment based on the undisputed facts before it. Compare Turner v. Bogle, 115 Ga. App. 710 (155 SE2d 667).

Independent of the evidence of record concerning the circumstances surrounding appellant’s arrest and booking for shoplifting, there exists an additional legal reason for the trial court’s finding of the existence of probable cause. The unrefuted evidence of record establishes that in appellant’s appearance before the city court (see generally OCGA §§ 17-7-22; 17-7-23), appellant’s counsel requested appellant be bound over for a Cobb County jury trial. Appellant was forthwith bound over to the State Court of Cobb County where nolle prosequi ultimately was entered. It has long been the rule in this state that committal of a defendant by a magistrate is prima facie, although not conclusive, evidence of probable cause for such prosecution. Monroe v. Sigler, 256 Ga. 759, 760 (3) (353 SE2d 23); Luke v. Hill, 137 Ga. 159 (5) (73 SE 345). Although the effect of such a prima facie showing of probable cause varies among jurisdictions, we favor the view followed by most courts that this type of prima facie establishment of probable cause “may be overcome by the accused, as plaintiff in the subsequent action for malicious prosecution, through producing evidence that, if believed, would show want of probable cause.” 52 AmJur2d, Malicious Prosecution, § 176; cf. Meyers v. Glover, 152 Ga. App. 679, 682 (263 SE2d 539), overruled in part on other grounds, McCord v. Jones, 168 Ga. App. 891, 893 (311 SE2d 209); but cf. Monroe, supra at 761 (6) (appearing to endorse the stricter fraud or corruption rebuttal standard to a trial court’s ruling on a motion for judgment of acquittal at trial). However, in practical application, if a prima facie establishment of probable cause is not rebutted, it becomes conclusive in legal effect (Brady v. Stiltner, 21 SE 729, 732 (SC W.Va.)), particularly as to the disposition of a pending motion for summary judgment.

In the instant case, however, the magistrate did not conduct an evidentiary “investigation,” within the meaning of OCGA § 17-7-22, but bound appellant, pursuant to the latter’s request, forthwith to the state court for trial by jury. This procedural tactic by appellant constituted the waiver of any preliminary examination by the magistrate. And the better view appears to be that the waiver of a preliminary examination by a person charged with a crime is prima facie evidence of probable cause the same as if defendant had been duly committed by the magistrate following an evidentiary investigation or hearing. Brady, supra at 731 (1); see also Bryant v. Murray, 79 SE2d 243, 247 (3) (SC N.C.). That is, the waiver of a preliminary hearing by appellant in the criminal prosecution for shoplifting is tantamount to a finding by the magistrate that there is sufficient cause to believe appellant guilty, thereby giving rise to a prima facie establishment of probable cause for appellant’s arrest and prosecution for shoplifting. Hess v. Oregon German Baking Co., 49 P. 803, 804 (1) (SC Ore.); Leggett v. Montgomery Ward & Co., 178 F2d 436 (10th Cir.) (waiver was equivalent to finding of probable cause). As the record unrefutedly establishes appellant waived the preliminary hearing and investigation by successfully requesting to be bound over to the state court for trial by jury, as a matter of law there resulted the prima facie establishment of probable cause. At this point, appellant could no longer rest on his pleadings to establish lack of probable cause but would be required to “point to specific evidence giving rise to a triable issue” thereof. Lau’s Corp., supra at 491; see also Brady, supra. Review of the record reveals no such “specific evidence” and, for this additional reason, the trial court did not err in granting summary judgment to appellee.

Further, the record contains at most only a shadowy semblance of an issue as to the existence of malice. When there exists but a shadowy semblance of a material issue, a case may nevertheless be decided as a matter of law where the evidence clearly and palpably shows that the jury could reasonably draw but one conclusion. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 68 (4) (397 SE2d 576).

3. Appellant asserts the trial court erred in failing to apply the standard established in Martin v. Reitz, 152 Ga. App. 854 (264 SE2d 305) as appellee’s agents knowingly and intentionally withheld evidence from the investigating officer and city court magistrate, which, if presented, would most likely have resulted in no criminal prosecution of this case. The record reveals no facts from which a reasonable inference can be drawn that appellee’s agents knowingly and intentionally withheld evidence from either the investigating officer or the city court.

One employee testified in his deposition that the manager did inform the police of “what the situation was”; he “explained to the police what happened.” The other employee testified in his deposition that the manager told the police that appellant took a can of snuff, but that was when the employee left and went to the parking lot as the witness hates to hear rights read to people. Contrary to appellant’s contentions, there exists no inconsistency in this testimony, which has not been reasonably explained, within the meaning of Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383). The record in its totality reveals not even the shadowy semblance of an issue that the agents of appellee store have knowingly and intentionally withheld evidence as enumerated. Moreover, Martin, supra, is factually distinguishable from this case; as in Martin a factual controversy existed as to whether the witness had given testimony to the magistrate which he knew to be false, misleading, or materially inaccurate.

Further, by requesting to be bound over for jury trial and not demanding a preliminary hearing, appellant’s own conduct and procedure created a situation where the magistrate would not have any requirement to examine appellee’s witnesses prior to binding appellant over for jury trial in the state court. Accordingly as the witnesses were not called to testify, their mere silence at the hearing is not the equivalent of the giving of false, misleading, or materially inaccurate information within the meaning of Martin, supra.

Additionally, we find distinguishable the cases of Bi-Lo v. McConnell, 199 Ga. App. 154 (404 SE2d 327); Atlantic Zayre v. Meeks, 194 Ga. App. 267 (390 SE2d 398); Wilson v. Wheeler’s, Inc., 190 Ga. App. 250 (378 SE2d 498); and Voliton v. Piggly Wiggly, 161 Ga. App. 813 (288 SE2d 924), which describe circumstances under which a reasonable person would be required to investigate further before initiating a shopper’s arrest and prosecution. In the case at bar, the manager was an eyewitness to appellant’s conduct; his observations were confirmed by the report of at least one employee performing security duty; appellant admitted his failure to pay for the merchandise when other store items were entered on the register and he attempted, in the manager’s presence, to pay belatedly for the item (but was not allowed to do so until after he was arrested); before his arrest, appellant admits he explained to the manager that he had forgotten he was in possession of the snuff and had in fact intended to pay for the item. Basically, unlike cases where physical (crushed soft-drink can) or documentary evidence (sales receipt) exists to corroborate factual defenses claimed by a shoplifter suspect, appellant’s sole defense pertained to his subjective intent, that is, his claim that he intended to pay for the snuff and did not intend to steal it. But, as above discussed, a store employee does not need to determine the shopper’s subjective intent before seeking an arrest and prosecution. K-Mart, supra at 747 (2). Further, there exists no showing in the record of any physical or documentary evidence which might have been examined, during the course of an additional investigation, which would further have corroborated appellant’s vocal claims regarding his subjective intent. Thus, unlike Bi-Lo, Atlantic Zayre, Wilson, and Voliton, supra, there exists no duty to investigate further under these circumstances.

4. Pretermitting whether, because appellee’s employees had the requisite probable cause to believe appellant had shoplifted the snuff, appellant’s claim of false imprisonment was subject to disposition in favor of appellee by grant of summary judgment (OCGA § 51-7-60), is appellant’s abandonment of any allegation of error regarding the false imprisonment claim. Appellant failed to provide citations of authority or specific argument in his appellate brief regarding the trial court’s grant of appellee’s motion for summary judgment as to the claim of false imprisonment. Accordingly, any claim of error regarding the grant of summary judgment as to the false imprisonment claim has been abandoned. Court of Appeals Rule 15 (c) (2).

In view of our above holdings and applying the precedent of Lau’s Corp. to the evidence of record, we find the trial court did not err in granting summary judgment to appellee store; and all of appellant’s enumerations of error are without merit.

Judgment affirmed. Beasley and Andrews, JJ., concur.

Decided January 13, 1993.

Hughes & Gibson, Ralph E. Hughes, for appellant.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, for appel-


text:
    A92A1750.
    THURMAN v. THE STATE.
    (427 SE2d 69)
   Birdsong, Presiding Judge.

Terry Thurman was convicted of five counts of armed robbery and eight counts of aggravated assault. After merging five of the aggravated assault counts with the counts of armed robbery, the trial court sentenced him to serve seventeen years on each count concurrently. His motion for new trial was denied and he appeals.

The State produced evidence showing that on Christmas Eve of 1990, four black males armed with a shotgun, a sawed-off shotgun, an Uzi and a .38 pistol kicked down the door of a residence in Bowdon, Georgia. Lester Lee Walker testified that he held the residents, including an eight-year-old boy, at gunpoint in the front room, while the other men stormed into a back room where a card game was in progress. Firing their weapons, they forced the five players to strip and grabbed their money and jewelry. Walker took a wallet from the man he was guarding, but threw it back when he found it was empty. The victims were instructed to lie face down on the floor while the robbers escaped in a car driven by a fifth man, who was identified at trial as appellant. Walker testified that appellant, who knew the household residents and was aware that gambling took place in the back room, had planned the robbery, described the layout of the house and waited in and drove the get-away car. The victims immediately notified the police.

Deputy Clay Culver of the Carroll County Sheriffs Department testified that he heard a radio call while he was on patrol on Highway 5 at about 10:15 p.m., announcing that there had been an armed robbery involving about four black male suspects, and that one or more of them were wearing green coveralls. About ten minutes after the robbery was reported and eight to ten miles from where it occurred, Culver encountered a 1976 Oldsmobile Cutlass on the side of the road with its headlights on. He passed it but turned around and pulled up behind it. The car was driven off, but stopped again when Culver turned on his blue lights. Culver approached the car, which contained five black males, shined his flashlight inside, and noted that two of the men were wearing green coveralls. When he asked the driver to step out and talk to him, appellant rolled down the front window and crawled out of it. Culver patted him down, put him in the back of the patrol car and radioed for confirmation of the green coveralls from an officer at the scene. At that point another man got out of the car and walked toward Culver; he was also patted down, placed in the patrol car and backup assistance was then radioed. When he looked up again, he saw that the remaining three men had exited the car. Culver ordered them to stay where they were and put their hands on top of their heads, but they immediately ran off toward a wooded area. Culver began chasing them until he noticed that one of them was holding a handgun, so he took cover to watch what direction they were going in. Another deputy arrived, but the three suspects eluded capture. The rest of the firearms carried by the robbers and one stolen during the robbery were found in the suspects’ car. When the get-away car was impounded, it was discovered that the door at the driver’s seat was wired shut because it would not close all the way.

Appellant testified that he was dropped off at Highway 5 by his mother about 9:30 or 10:00 p.m. on Christmas Eve, and was trying to hitchhike to a friend’s house when a car with four passengers, none of whom he knew, pulled over to the side of the road to ask him directions. The driver and one passenger got out when a Carroll County deputy sheriff drove by. As they watched, the patrol car turned around and came back. One of the other passengers pointed a gun at appellant and ordered him to get in the front seat, where he was shoved over to the driver’s side. When the deputy approached and asked him to get out, he could not get the door open and was forced to crawl out the window. He was patted down and taken to the patrol car where he warned the deputy that the other men were armed. He claimed that after he was incarcerated Deputy Culver escorted him to see a dentist and thanked him for saving his life. Appellant’s cell mate, who was also present, corroborated his story, but Deputy Culver denied that the conversation took place, or that appellant had warned him that the other men were armed. Held:

1. Appellant contends that the evidence was insufficient to sustain the conviction under the constitutional standard of Jackson v. Virginia, US U. S. 307 (99 SC 2781, 61 LE2d 560), because the circumstantial evidence of his mere presence in the company of the suspected robbers was not competent to corroborate the testimony of the alleged accomplice. We do not agree. Deputy Culver’s testimony as to appellant’s actions and demeanor were in direct conflict with appellant’s testimony, and bolstered that of the accomplice, Lester Lee Walker. It was uncontradicted that appellant had visited the occupants of the house where the armed robbery occurred and knew that gambling took place there.

“The rule is well established that, to sustain a ‘conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty, and (are) more than sufficient to merely cast on the defendant a grave suspicion of guilt.’ (Cits.) However, ‘the sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. (Cits.)’ . . . ‘(T)he necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime. (Cits.)’ [Cit.]” Bradford v. State, 261 Ga. 833, 834 (1) (412 SE2d 534). Accord Williams v. State, 198 Ga. App. 725 (1) (402 SE2d 796); Peabody v. State, 190 Ga. App. 304 (2) (378 SE2d 712).

2. Appellant asserts that the trial court erred in denying his motion for new trial based upon the ineffective assistance of his appointed counsel. A hearing was held on the motion at which appellant testified about his attorney’s alleged deficiencies, and the trial court found that there was no ineffective assistance of appointed counsel. Our review of the trial transcript confirms this evaluation. Although appellant complains that he felt his appointed counsel was disinterested in his case, did not adequately consult with him or prepare him for trial, and failed to procure a key witness, this did not establish that but for counsel’s unprofessional errors, the jury verdict would have been different. Appellant’s trial counsel, a public defender with over five years experience, testified that he met with appellant on six occasions and first recommended that he plea bargain, but acquiesced to his wishes to go to trial. This was made more difficult because appellant gave his attorney three different explanations for his presence at the scene when he was arrested. The attorney did not attempt to contact appellant’s “key witness” because this man never saw him on the night in question.

Applying the two-prong test to determine ineffectiveness of counsel as set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674), “it must be established that the representation [fell] below an objective standard of reasonableness and the defendant must show prejudice in that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Cits.]” McAlister c. State, 204 Ga. App. 259, 261 (2) (419 SE2d 64). “ ‘Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that. . . under the circumstances, the challenged action ‘might be considered sound trial strategy.’ . . . [Cit.]” Bowley v. State, 261 Ga. 278, 280 (4) (404 SE2d 97). We find no grounds for reversal under the appropriate standard.

Decided January 14, 1993.

Tisinger, Tisinger, Vance & Greer, J. Branson Parker, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

3. The State introduced in evidence a jacket worn by appellant when he was arrested that had the name “Rosser” written on its label. Appellant complains that the trial court improperly allowed hearsay testimony of Lester Lee Walker that he knew one of the accomplices whom he had previously named as “Cobb” was also known by the name “Rosser” because his (Walker’s) girl friend had told him this. The trial transcript reveals, however, that this information was not elicited solely for the purpose of proving the truth of the matter, but rather to explain Walker’s differing identifications of this individual by showing that at the time he named his accomplices he used the names he knew them by then. This was recognized by the trial court, which gave curative instructions to the jury that the evidence was admitted “not for the truth of what his girl friend told him but [to account for] any inconsistencies in naming certain individuals by certain names as he knew them at the time.” “[Testimony is considered hearsay only if the witness is testifying to another party’s statement in order to prove or demonstrate the truth of that statement. [Cits.] Otherwise it is a verbal act and thus original evidence rather than hearsay. [Cit.]” Hurston v. State, 194 Ga. App. 226 (390 SE2d 119). Accord Strickland v. State, 257 Ga. 230 (3) (357 SE2d 85); Williams v. State, 202 Ga. App. 485 (1) (414 SE2d 712).

Judgment affirmed. Andrews, J., concurs. Beasley, J., concurs in judgment only as to Division 2.


author: Johnson, Judge.

text:
    A92A1799.
    MARCOUX v. NORTHSIDE REALTY ASSOCIATES, INC. et al.
    (427 SE2d 72)
   Johnson, Judge.

This is the second appearance of this case in this court. For a statement of the facts see Marcoux v. Fields, 195 Ga. App. 573 (394 SE2d 361) (1990). In the former appeal, this court reversed the grant of defendants’ motion to dismiss based on res judicata. Upon trial of the case, the trial judge directed a verdict in favor of Northside Realty Associates, Inc., which forms the basis of this appeal. The jury returned a verdict against the co-defendant, Eddie Fields, in excess of $46,000.

1. In a recent case, Ross v. Ninety-Two West, Ltd., 201 Ga. App. 887 (412 SE2d 876) (1991), we clarified the nature of the relationship between real estate agents and realty companies, holding that the firm will not be held liable for the tortious acts of its agents, who are independent contractors. Perhaps in light of this decision, Marcoux has asserted that a jury question existed on the liability of Northside under a theory of apparent authority. In support of this theory, Marcoux has analogized the role of the agent to that of a doctor in an emergency room, citing Brown v. Coastal Emergency Svcs., 181 Ga. App. 893 (354 SE2d 632) (1987), aff'd sub nom. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987). As we recently held in Holmes v. Univ. Health Svc., 205 Ga. App. 602 (423 SE2d 281) (1992): “In order to recover under [an apparent or ostensible agency] theory, however, a plaintiff must present evidence that: (1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury. Further, it is not enough that plaintiff simply believe there is an agency relationship. There is an objective standard. The apparent principal must represent or hold out the apparent agent. Then, too, justifiable reliance must lead to the injury.” (Citations and punctuation omitted.) Id. at 603. The facts in this case have not demonstrated that Northside, or Fields, made any representations regarding the nature of their relationship. There is no testimony in the record which indicates that Fields or anyone from Northside represented to Marcoux that he was employed by Northside, nor is there evidence that any reliance on the part of Marcoux led to her injury.

Marcoux’s analogy to the emergency room situation is attenuated. In most instances, a patient entering an emergency room is in a state of crisis, having sustained serious physical injury or trauma. He has neither the capacity nor the luxury of time to examine the relationships of the players in the scene. This situation cannot be likened to that of a property owner entering into a listing agreement, an arms length business transaction.

2. Marcoux also asserts that the trial court erred in granting a directed verdict in favor of Northside because a jury question existed whether Northside was a joint tortfeasor as a result of its own tortious acts and omissions. The acts which Marcoux alleges constitute these acts and omissions include maintaining a form file in the office and holding orientation sessions for agents. We agree with the trial court that no evidence was presented at trial which indicates that either of these activities was a contributing proximate cause of Marcoux’s injury. “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. OCGA § 9-11-50.” (Citations and punctuation omitted.) Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 94 (406 SE2d 502) (1991). There is nothing in the record which connects either of the alleged acts to the injury suffered by Marcoux. The trial court did not err in directing a verdict in favor of Northside.

Decided January 14, 1993.

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Myles E. Eastwood, Linda R. Greer, for appellant.

Frederick G. Boynton, William A. Wehunt, for appellees.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


author: Pope, Chief Judge.

text:
    A92A1807.
    EDMOND et al. v. ROBERSON.
    (427 SE2d 74)
   Pope, Chief Judge.

This appeal arises from a collision which occurred at the intersection of Midway Road and Memorial Drive in DeKalb County on or about June 14, 1989. At the time of the collision, it was raining and the traffic light at that intersection was malfunctioning. Plaintiffs Terry Edmond (driver) and his wife Sandra B. Edmond (passenger) were traveling on Memorial Drive and defendant Priscilla Roberson was crossing Memorial Drive on Midway Road at the time of the collision. Defendant was charged at the scene of the accident with a violation of OCGA § 40-6-70, failure to yield the right of way. She pled guilty to that charge. At trial a certified copy of her guilty plea was admitted into evidence, as were certain admissions of the defendant that she was at fault.

During the trial the plaintiffs moved for a directed verdict as to liability. The trial court granted the motion only as it concerned plaintiff Sandra B. Edmond. The jury returned a verdict in favor of her in the amount of $750, but found for the defendant with regard to plaintiffs Terrence Edmond and State Farm. Plaintiffs Terrence Edmond and State Farm moved for a new trial and State Farm also moved for j.n.o.v. The trial court denied those motions and plaintiffs Terrence Edmond and State Farm appeal.

1. In their first enumeration of error, plaintiffs contend the trial court committed reversible error by refusing to charge on OCGA § 40-6-70, the Code section defendant was charged with violating and to which she pled guilty. That Code section provides in pertinent part: “When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, provided that when a vehicle approaches or enters an intersection with no stop signs or other traffic-control devices from a highway that terminates at the intersection, the driver of that vehicle shall yield the right of way to the other vehicle, whether the latter vehicle be on his right or left.” The trial court held that Code section was not applicable to this case because a traffic signal was located at the intersection where the collision occurred, even though the signal was not operative. We hold OCGA § 40-6-70 is applicable in this case. “ ‘It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ [Cit.]” State of Ga. v. Livingston, 222 Ga. 441, 442-443 (150 SE2d 648) (1966). It is unreasonable to presume the legislature intended to treat an intersection at which a traffic light is present but not operative differently than an unmarked intersection. A driver is required by law to obey the “instructions” of a traffic-control device. OCGA § 40-6-20 (a). When a traffic signal is not operating, however, it gives no instructions and the intersection is effectively uncontrolled. The motorist must then proceed pursuant to the Uniform Rules of the Road applicable to uncontrolled intersections, including the requirement of OCGA § 40-6-70 that when approaching an uncontrolled intersection the vehicle on the left shall yield the right of way to the vehicle on the right.

“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Citations and punctuation omitted.) Americani v. Sidky, 199 Ga. App. 823, 824 (3) (406 SE2d 259) (1991). As the trial court noted in its order denying the plaintiffs’ motion for new trial, plaintiffs’ requested charge correctly quotes OCGA § 40-6-70. As we have held that Code section is applicable to the factual situation presented in this case, the trial court erred by refusing to give plaintiffs’ requested charge. Under the circumstances of this case, we further hold the trial court’s refusal to give this requested charge was prejudicial error entitling plaintiffs to a new trial. See Andrews v. Buckner, 143 Ga. App. 862 (1) (240 SE2d 266) (1977).

2. The trial court also erred in refusing to charge the jury on negligence per se. The evidence presented at trial showed defendant violated OCGA § 40-6-70. “It is well settled that the violation of a state statute constitutes negligence as a matter of law. ...” Green v. Gaydon, 174 Ga. App. 796, 798 (3) (331 SE2d 106) (1985).

Decided January 14, 1993.

Hughes & Gibson, Gilchrist M. Gibson, for appellants.

Crim & Bassler, Joseph M. Murphey, Kimberly L. Schwartz, for appellee.

3. For the reasons set forth in Divisions 1 and 2 above, we hold the trial court erred by failing to grant plaintiffs’ motion for new trial.

4. We have examined the plaintiffs’ remaining enumerations of error and find them to be without merit.

Judgment reversed. Carley, P. J., and Johnson, J., concur.

       The Edmonds’ insurer State Farm Mutual Automobile Insurance Company is also a plaintiff in this action.


author: Andrews, Judge.

text:
    A92A1884.
    THE STATE v. SUDDETH.
    (427 SE2d 76)
   Andrews, Judge.

The State appeals from the grant of the motion to suppress of Elaine Suddeth. She was charged with possession of methamphetamine and marijuana.

An affidavit and application for a search warrant were presented to the magistrate by Barrow County Sherriff’s Lt. Bob Kenney accusing Suddeth of forgery under OCGA § 16-9-2 and violation of OCGA § 16-13-30 of the Georgia Controlled Substances Act. The property to be searched was alleged to be located in Barrow County and described as “[a] single story red brick dwelling with white awnings, two front entrances, a small porch on east side of house, circular driveway in front and a red barn behind east corner of house. Also any vehicles and outbuildings at residence. It is the 4th building on left past the car wash in Carl, Ga. on Hwy. 29, heading east.” The items listed to be searched for were: “1) I.D.’s, 2) Stolen or bogus checks or credit cards, 3) Receipts, 4) Records pertaining to illegal activity, 5) Controlled substance i.e. Methamphetamine, Marijuana, 6) Any drug related objects, 7) U. S. Currency.”

In conjunction with the affidavit and application, supplemental information was submitted which showed that on March 26, 1991, two white males, Phillip Lee Suddeth and Roger Dale Dalton, were arrested by the Snellville Police Department in Gwinnett County for passing forged checks. They were also charged with theft by taking of the 1982 Silver Cadillac they were driving and both used “alias names” when arrested. A search warrant was obtained for the Cadillac, in which were found numerous false picture I.D.s of both men, stolen credit cards and checks, some 46 grams of methamphetamine, needles and spoon, pictures, receipts and merchandise bought with forged checks, and miscellaneous papers. Due to having given false names, both men were charged as John Does for drug violation with intent to distribute. Through investigation it was learned that Dalton had rented two storage rooms at a facility on Jimmy Carter Boulevard in Gwinnett County under his own name, and a search warrant was obtained and executed thereon on March 28, 1991. Items seized there included a blank Georgia driver’s license, miscellaneous I.D.s, methamphetamine and marijuana, lab equipment and ingredients for methamphetamine including the “recipe,” and pictures, phone numbers and various papers. A hearing was held before a magistrate the next day at which the true names of Suddeth and Dalton were learned and admitted under oath, but both men still refused to give a correct address.

On April 5, 1991, at a bond hearing held in Gwinnett Superior Court, two females present were recognized by a detective from pictures found during the searches. One of the women and a boy approximately 11 years old were introduced as appellee Elaine and Shane Suddeth, wife and son of Phillip Lee Suddeth. Pictures of Shane had also been found during the searches. After the hearing the women were observed driving away in a silver BMW bearing a Georgia tag BGG-440, but there was not sufficient time to set up a proper surveillance of the car to locate an address. The investigation led to Auburn, Georgia, where two detectives from the Snellville Police Department learned that Shane Suddeth was enrolled as a student at Auburn Elementary School. Shane’s home address on record at the school, which was listed as Highway 29, Route 1, Box 3169, Auburn, Georgia, did not exist, but the detectives ascertained from the school bus driver that the address where he let the boy off was Highway 29, Route 1, Box 5917 in Auburn. Inquiries with the local utilities and the post office revealed that service for that address was designated to Phillip Joe and Elaine Chapin, with the application signed by Elaine. When the detectives drove by the address they saw a silver BMW parked behind the residence. The search warrant was requested solely on the basis of this information.

At the hearing the trial judge expressed some misgivings that the State had not shown that the description of the residence in the affidavit and the residence address supplied in the supplemental information were the same, or even that the silver BMW parked behind the Barrow County residence was the same car seen outside the Gwinnett County Courthouse; and that the criminal activity in Gwinnett County had not been in any remote fashion tied into any criminal activity conducted by Elaine Suddeth in the house in Barrow County. Subsequently, on February 18, 1992, the motion to suppress was granted. The State contends on appeal that under the totality of the circumstances the magistrate had sufficient probable cause to issue the search warrant; and because the evidence was seized in good faith reliance on a search warrant issued by a neutral and detached magistrate, appellee’s Fourth Amendment rights were not violated and suppression was not authorized.

As recognized by the Supreme Court in State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984), the issuing magistrate’s task is to make a practical, common-sense decision from everything adduced at the hearing, including the veracity and basis of knowledge of persons supplying information, that there is a fair probability that contraband or evidence of a crime will be found at the described location; and the reviewing court’s duty is to ensure that the issuing magistrate had a substantial basis for concluding that probable cause existed. “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Hightower v. State, 205 Ga. App. 305, 306-307 (1) (422 SE2d 28) (1992).

Even assuming all the allegations made in the affidavit and application presented here were true, we find no evidence of any criminal activity by Elaine Suddeth to authorize the issuance of a search warrant. There was nothing to show that she or her husband had supplied an incorrect address to the school their son attended or that the erroneous address served to further any criminal purpose. There was likewise no evidence that the utilities were obtained by use of false names or that the named persons were in fact the Suddeths. At the time the warrant was issued the investigating authorities had no concrete knowledge that Phillip Joe and Elaine Chapin did not live in the residence sought to be searched. There was no proof that the silver BMW parked behind the residence was the one Elaine Suddeth had been seen driving earlier or that she owned it. Even if she did, its ownership was neither illegal nor evidence of any criminal pursuit. The only facts the State possessed as its basis for probable cause at the time it sought issuance of the warrant were that Elaine Suddeth’s husband had been in possession of contraband drugs in another county some two weeks prior to the search of the residence, and there was nothing to connect her to that criminal activity.

With regard to the “good faith” exception argued by the State, “the good-faith exception to the exclusionary rule enunciated by the U. S. Supreme Court in United States v. Leon, [468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984)] is not applicable in Georgia in light of our legislatively-mandated exclusionary rule found in OCGA § 17-5-30, and . . . the trial court did not err when it ordered suppression of the contraband seized in a search of [Suddeth’s] home because the warrant authorizing the search was not supported by probable cause.” Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992).

Decided January 14, 1993.

Timothy G. Madison, District Attorney, for appellant.

Kathleen J. Anderson, for appellee.

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.


text:
    A92A1934.
    RAPOSA v. THE STATE.
    (427 SE2d 79)
   Pope, Chief Judge.

On July 24, 1991, a three-count indictment was filed charging William Howard Raposa with three felonies. The first count charged him with aggravated assault with a deadly weapon against Elaine Raposa on or about April 24, 1989. The second count charged him with aggravated assault with a deadly weapon against Crystal Hughes on or about April 24, 1989. The third count charged him with making terroristic threats against Brenda Elaine Raposa on or about April 25, 1989. Defendant was found guilty of Counts 1 and 3. Defendant appeals, asserting as his sole enumeration of error that with regard to the conviction of defendant for aggravated assault, the trial court erred by denying his motion for continuance.

Prior to trial, the defendant filed a discovery motion and requested as part of that motion “[a]ll memorandum, notes, recordings or statements reflecting the exact dates and times said offenses are alleged to have occurred and/or the person or persons supplying said information. Said times and dates are essential to prove the defense of alibi.” It is undisputed that the State did not present any records to defendant that would establish a date for the crimes charged other than those contained in the indictment.

When the State called its first witness, Elaine Raposa, it became evident that the State did not intend to prove the crime giving rise to Count 1 was committed on April 24, 1989, the date contained in the indictment. As the State concedes the only evidence as to the date of the alleged aggravated assault was that it occurred on August 28, 1989. Before the exact date of the crime was established, but when it became evident that the crime charged in Count 1 was not committed on the date contained in the indictment, defendant moved for a continuance on the basis that he intended to rely upon the defense of alibi and needed time to prepare his defense. The trial court denied the motion suggesting that a continuance was not proper but that a motion for mistrial might be properly asserted later in the proceedings. The defendant did not renew his motion for a continuance after the exact date of the crime giving rise to Count 1 was established.

Decided January 14, 1993.

Alan J. Roman, for appellant.

We hold that the trial court erred in denying defendant’s motion for a continuance under the facts of this case. The indictment contained “on or about language,” which was sufficient to put the defendant on notice that the exact date might vary from the date contained in the indictment. However, the defendant through his discovery motion sought to establish the exact date before trial and put the State on notice that he intended to rely upon the defense of alibi. When no conflicting evidence was forthcoming showing the defendant allegedly committed the crime on another day, the defendant prepared an alibi defense for the only days for which he had notice, those dates contained in the indictment. When it became evident that the State was not seeking to prove the aggravated assault against Elaine Raposa occurred on the date contained in the indictment, the defendant moved for a continuance. “While it is true that ‘(w)here the date alleged in the indictment is not a material element of the offense, the (S)tate may prove the offense as of any date within the statute of limitation,’ [defendant’s] reliance on an alibi defense for the time alleged in the indictment entitled him to a continuance once he learned at trial that the State did not intend to prove the date alleged in the indictment. Arnold v. State, 167 Ga. App. 720 (1, 2) (307 SE2d 526) (1983).” Brown v. State, 190 Ga. App. 678, 679 (1) (379 SE2d 598) (1989).

The State argues there was no error because the defendant did not renew his motion for continuance after the exact date of the crime was established and because defendant did not present his alibi defense. We cannot agree. There was no reason for defendant to offer alibi evidence for the date stated in the indictment when the State no longer alleged that the crime with which he was charged occurred on that day. Also, it was not necessary for the defendant to wait to move for a continuance until the State established the exact date of the crime, when it became obvious the State did not seek to prove the crime occurred on the dates contained in the affidavit, the only dates for which defendant had prepared a defense. At the time defendant made his motion for continuance, it should have properly been granted. Consequently, defendant’s conviction for aggravated assault is reversed.

Judgment affirmed in part and reversed in part. Carley, P. J., and Johnson, J., concur.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.


text:
    A92A1681.
    MONROE et al. v. KERSEY et al.
    (427 SE2d 80)
   Carley, Presiding Judge.

Appellant-plaintiffs brought suit, alleging fraud in connection with their purchase of shares of stock in a corporation which eventually became insolvent. Appellee-defendants answered, denying the material allegations of the complaint. The case was tried before a jury and a verdict in favor of appellees was returned. Appellants appeal from the judgment entered by the trial court on the jury’s verdict.

1. The evidence was sufficient to authorize the verdict in favor of appellees and did not demand a verdict in favor of appellants. Accordingly, there is no merit in appellants’ enumeration of the general grounds.

2. During the closing argument by appellees’ counsel, appellants invoked no ruling by the trial court. Thus, an enumeration of error which is predicated upon an allegation of improper argument by appellees’ counsel presents nothing for review. Cochran v. State, 213 Ga. 706 (2) (100 SE2d 919) (1957).

3. The admission of evidence, without objection, likewise presents nothing for review. “ ‘ “A party cannot ignore during a trial that which he thinks to be error or an injustice and take his chances on a favorable verdict and then complain later.” [Cit.]’ [Cit.]” Dept. of Transp. v. Harris, 201 Ga. App. 160 (410 SE2d 360) (1991).

4. When appellees called one of their witnesses, appellants objected because he had not been named in the pre-trial order. The record does not indicate, however, that any pre-trial order had ever been entered in this case. In any event, appellants were given an opportunity to interview this witness prior to his testimony and there was no abuse of discretion in allowing him to testify over the objection that he had not been named in the pre-trial order. Nease v. Buelvas, 198 Ga. App. 302, 303 (401 SE2d 320) (1991).

Appellants further urge that the witness should not have been allowed to testify because he had previously been in the courtroom in violation of the rule of sequestration. It appears, however, that the witness had merely stepped into the courtroom and then immediately left. In any event, the trial court found that the witness had not been in the courtroom “that long” and there was no abuse of the trial court’s discretion in allowing him to testify. Trade City G. M. C. v. May, 154 Ga. App. 371, 372 (3) (268 SE2d 421) (1980).

5. Another shareholder had previously brought suit against appellees. Appellants urge that they were erroneously precluded from relying upon the judgment in that prior action as evidence of appellees’ liability to them in the instant action. However, appellants obviously have no privity with the other shareholder. “ ‘Privies are all persons who are represented by the parties and claim under them, all who are in privity with the parties; the term privity denoting mutual or successive relationship to the same rights of property.’ ” Morris v. Ga. Power Co., 65 Ga. App. 180 (1a) (15 SE2d 730) (1941). Accordingly, just as appellees could not plead any judgment rendered in the prior action as a bar to appellants’ instant action, appellants could not introduce any judgment rendered in that prior action as evidence of appellees’ liability in the instant action. See Roberts v. Porter, Davis, Saunders & Churchill, 193 Ga. App. 898, 900 (1) (389 SE2d 361) (1989); Montgomery v. DeKalb Steel, 144 Ga. App. 191, 193 (2) (240 SE2d 741) (1977); Alcovy Realty Co. v. Stone Mt. Abstract Co., 137 Ga. App. 597 (224 SE2d 519) (1976).

Decided January 15, 1993.

James M. Cranford, for appellants.

Moore & Moore, Theron M. Moore, Bradley W. Bledsoe, for appellees.

6. Appellants urge that they are entitled to a new trial because the wife of one of appellees was seen speaking to a juror in the hallway of the courthouse. This contention is without merit. The record indicates that appellants were aware of this alleged incident shortly after it occurred, but raised no objection until after the verdict had been returned. “[I]t is well settled that in order for misconduct of the jury to be cause for a new trial it must affirmatively appear that neither the party complaining nor his counsel had any knowledge of such misconduct before verdict. [Cit.] ” Schmidt v. Parrish, 63 Ga. App. 663, 664 (2) (11 SE2d 921) (1940).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1721.
    KIDD v. UNGER.
    (427 SE2d 82)
   Johnson, Judge.

Tommy M. Kidd, “legatee/devisee/creditor” of the estate of Lena E. Kidd filed the following documents with the probate court of Wilkes County: “Notice of Claim of Tommy M. Kidd as Creditor Based Upon Contributions to the Estate and Partnership in a Business Enterprise”; “Petition to Compel Executor to Give Sufficient Bond”; “Petition for Immediate Inventory and Appraisement”; “Notice of Intent to Harvest Timber”; and a “Notice of Ejectment.” William Unger, executor of the estate of Lena Kidd did not file responses to these documents but was represented at a hearing regarding these issues. The probate court dismissed Kidd’s claim as a creditor, notice to harvest timber and notice of ejectment for lack of jurisdiction. The petitions for bond and inventory were denied.

Kidd filed a notice of appeal to the superior court. Unger filed a motion to dismiss the appeal only with respect to the claim of Kidd as a creditor, asserting that the probate court did not have subject matter jurisdiction over that claim. Prior to receiving a response to the motion to dismiss, the superior court convened a hearing on the issue and dismissed the entire appeal.

1. In this appeal, Kidd contends that the trial court erred in granting Unger’s motion to dismiss because he has an absolute right to appeal a ruling of the probate court to the superior court, a right which includes a de novo review and trial by jury. In the appeal filed in the superior court, the court was asked to consider the issue of subject matter jurisdiction with respect to Kidd’s claim as a creditor. “Jurisdiction of a court to afford the relief sought is a matter which should be decided preliminarily, at the outset. Jurisdiction either exists or does not exist without regard to the merit of the case. (Cit.)” Whitlock v. Barrett, 158 Ga. App. 100, 103 (4) (279 SE2d 244) (1981).

The probate court correctly refused to entertain Kidd’s claim as a creditor against the estate. “In a proceeding between a representative of the estate and an alleged creditor, the probate court has no jurisdiction to decide an issue as to an alleged indebtedness. [Cits.]” Wausau Ins. Co. v. King, 191 Ga. App. 329, 330 (381 SE2d 574) (1989). Even though an action by a creditor against an estate could have been initiated in the superior court, the scope of subject matter jurisdiction is not enlarged upon the appeal of the case to the superior court. Knowles v. Knowles, 125 Ga. App. 642, 645 (1) (188 SE2d 800) (1972); Walton v. State, 197 Ga. App. 263, 264 (1) (398 SE2d 221) (1990). Therefore, the superior court did not err in dismissing Kidd’s claim as a creditor without conducting a full hearing on the merits of the case.

HERE

2. Kidd asserts that the superior court erred in considering the motion to dismiss the appeal without allowing the 30 days anticipated by Uniform Superior Court Rule (USCR) 6.2 for a response to be filed to expire and without citation to supporting authority. USCR 6.2 states that: “Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.” (Emphasis supplied.) The presence of the conditional language in the rule clearly gives the trial judge discretion regarding the period of time by which a party must respond to a motion in a civil case.

In this case it is clear that defendant’s motion to dismiss was premised solely on the issue of subject matter jurisdiction, a matter contained wholly within the purview of the pleadings. Since there is no evidence that any matters outside the pleadings were presented, converting the motion to dismiss to a motion for summary judgment, the trial court did not err in failing to allow the 30 days to lapse prior to ruling. See Cohen v. William Goldberg & Co., 202 Ga. App. 172, 182 (6) (413 SE2d 759) (1991) (in which it was noted that even entry of summary judgment without allowing the full 30 days to respond is not per se reversible error, citing Leverich v. Roddenberry Farms, 253 Ga. 414 (321 SE2d 328) (1984); Hart v. Sullivan, 197 Ga. App. 759 (399 SE2d 523) (1990)). Similarly, Unger’s failure to set forth citations of supporting authorities in compliance with USCR 6.1 is not fatal to his motion to dismiss. See Carlin v. Fuller, 189 Ga. App. 845, 846 (2) (377 SE2d 877) (1989).

3. As discussed in detail above, Unger’s motion to dismiss was limited to Kidd’s claim as a creditor. The superior court’s original order appears to have dismissed Kidd’s appeal in its entirety. Because the order contains no findings of fact or conclusions of law, and because we have no transcript of the hearing, we cannot determine whether the order intended to dismiss only the claim which was the subject of the motion to dismiss or if it intended to dismiss the entire case. To the extent that the order dismisses anything other than the claim as a creditor, it must be reversed and remanded for clarification.

Some months after the notice of appeal to this court and the docketing of the case in this court, the trial court entered a second order, limiting the scope of the ruling to the claim as a creditor was entered and forwarded to this court by the clerk of the superior court as an unauthorized supplement to the record. Kidd filed a motion to strike the second order. Generally a trial court has power to correct mistakes in judgments pursuant to OCGA § 9-11-60 (g). However, “the filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979). See Deans v. Dain Mgmt., 201 Ga. App. 466, 468 (411 SE2d 354) (1991). The court’s amended order, therefore, cannot be considered for purposes of this appeal.

We have reviewed the trial court’s amended order, and it clarifies the ambiguities of the initial order by dismissing only Kidd’s claim as a creditor, and achieves precisely the same result as reached above. This case is hereby remanded to the trial court for consideration of all remaining issues and the court is directed to re-file the amended order when jurisdiction of the case is vested there once again. After the re-entry of the amended order, the aggrieved party can pursue whatever appellate procedures may be available.

Decided January 15, 1993.

Michael 0. Horgan, for appellant.

Jean W. Pierce, for appellee.

Judgment affirmed in part, reversed in part and remanded with direction. Pope, C. J., and Carley, P. J., concur.