author: McMurray, Presiding Judge.

text:
    A98A0186.
    FERGUSON v. THE STATE.
    (502 SE2d 556)
    Decided May 21, 1998.

      Hagler, Hyles & Adams, Richard C. Hagler, for appellant.
   McMurray, Presiding Judge.

Defendant Ferguson appeals his conviction of two counts of aggravated assault and one count of possessing a firearm during the commission of a crime. The sole enumeration of error questions the sufficiency of the evidence to authorize defendant’s conviction. Held:

The evidence at trial stated in the light most favorable to upholding the verdict of the jury shows that the two victims were high school students, one of whom attempted to purchase, from defendant’s nephew, a small quantity of marijuana. The purported marijuana was not real and a confrontation between the purchaser and defendant’s nephew ensued. A few days later defendant’s nephew was seen in a red car which slowly drove past the victims as they were leaving school. Later that evening the victims were approached on the street by the same red car. Defendant was identified by both victims and a bystander as the person who emerged from the car and held a gun to the head of one of the victims while threatening him and who shot the other victim.

Defendant presented an alibi defense and attacked the credibility of the identification witnesses. It is a task of the jury to weigh the evidence, determine credibility and issues of identification, and resolve conflicts in the evidence. Moore v. State, 268 Ga. 420, 421 (1) (489 SE2d 842); Price v. State, 223 Ga. App. 807, 810 (4) (478 SE2d 915); Hopkins v. State, 222 Ga. App. 157 (473 SE2d 267); Clark v. State, 221 Ga. App. 273, 274 (470 SE2d 816); Jones v. State, 220 Ga. App. 236, 237 (2) (469 SE2d 379). A rational trier of fact was authorized by the evidence at trial to find defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A98A0362.
    HARDIN v. CITY WIDE WRECKER SERVICE, INC.
    (502 SE2d 548)
   Blackburn, Judge.

Ruth Hardin sued City Wide Wrecker Service, Inc. for conversion, emotional distress, and litigation expenses, contending that City Wide towed her car from a public street within the Royal Towne Park subdivision of townhouses without appropriate authority. Hardin also requested a declaratory judgment that City Wide had no authority to remove cars from the public street where her car had been parked. The trial court denied Hardin’s motion for partial summary judgment and her motion for declaratory judgment, and Hardin appeals.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

On or about February 11,1992, City Wide entered into a contract with Royal Towne Park Townhouse Association, Inc. (RTP) for the removal and storage of cars improperly parked within the Royal Towne Park community. Signs were erected throughout the community warning that improperly parked cars would be towed. On March 24, 1994, Joan Leitch, an authorized representative of RTP, called City Wide and asked them to tow Hardin’s car from the property, which it did. At the time that the car was towed, it was parked along the side of Royal Path Court, not in a marked parking space. On or about April 9, 1994, Hardin’s husband paid $295 in towing and storage fees to City Wide and retrieved the car. No claims that the car had been damaged were made.

1. (a) Whether Hardin’s claim for conversion is tenable depends, in large part, on the classification of Royal Path Court as either a public or a private street. If the street were owned by RTP, as City Wide contends, a claim for conversion would not lie, as City Wide, acting in its capacity as RTP’s agent, would have had appropriate authority to tow Hardin’s car. See OCGA § 40-11-2. On the other hand, if Royal Path Court were a public street, RTP would not have had authority to have Hardin’s car towed, and City Wide, in turn, could be subject to Hardin’s claim for conversion.

On June 3, 1981, Shawn Development & Investment Corporation, the developer and owner of the townhome community at that time, executed a plat of the property which contained a dedication and conveyance, in fee simple, of all streets and rights-of-way in the property to DeKalb County. This plat was submitted to DeKalb County for filing on June 17, 1981, and it was recorded in Plat Book 72 of DeKalb County on June 25,1981. In relevant part, the recorded plat states: “Shawn Development & Investment Corporation . . . hereby convey[s] all streets and rights-of-way shown hereon in fee simple to DeKalb County.”

In an undated deed recorded on January 4, 1982, Shawn Development transferred to RTP all of the property within the townhome community, less and except “[a]ll that tract or parcel of land lying and being in Land Lot 233 of the 15th District, DeKalb County, Georgia, and being the individual Townhomes as shown in Plat of Royal Towne Park, Unit I, [as] recorded in Plat Book 72 . . . and being more particularly defined in the Declaration of Covenants, Conditions, and Restrictions of Royal Towne Park as recorded in Deed Book 4490.” In the Declaration of Covenants, Conditions, and Restrictions, the Common Area of the subdivision, which is considered to be the property of RTP, is defined as “all areas other than that in the bounds of a Townhouse Lot, including] but not limited to the sidewalks and parking area, the street islands, but excluding the street area” (Emphasis supplied.) On June 17, 1982, DeKalb County notified Shawn Development that the roads in the Towne Park subdivision were satisfactory for county maintenance, thereby implicitly accepting the original dedication.

Based on these documents of conveyance, Royal Path Court must be considered a public street, having been dedicated to and accepted by DeKalb County. “Where the owner of a tract of land subdivides it into lots and records a map or plat showing such lots, with designated streets, and sells lots with reference to such map or plat, the owner will be presumed to have expressly dedicated the streets designated on the map to the public.” (Punctuation and emphasis omitted.) Smith v. State of Ga., 248 Ga. 154, 159 (2) (282 SE2d 76) (1981).

Although City Wide argues that, based on Georgia’s race-notice recording system, the January 4, 1982 conveyance to RTP extinguished the rights of DeKalb County in the roads of the subdivision, such argument must fail. Georgia’s recording acts are intended to protect bona fide purchasers of property who first record their deed without notice of a prior unrecorded interest in the same property. See OCGA § 44-2-2. As the deed of conveyance to RTP expressly referenced the plat on the face of which the dedication of streets to DeKalb County had been made, it cannot be said that RTP was without notice of this prior disposition of the same property. Accordingly, Royal Path Court must be considered to be a public street, making it necessary to determine whether City Wide’s towing of Hardin’s car amounted to conversion.

(b) “[I]n order to be chargeable with conversion, technically it is not necessary that the defendant assert any right of ownership over the property; it is sufficient if the defendant wrongfully assumes dominion over the property inconsistent with the owner’s right. . . . It is immaterial that such dominion was exercised in good faith, for [w]hoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith.” (Punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261 (1) (356 SE2d 877) (1987).

OCGA § 40-11-3 generally gives the authority to tow cars from public streets to peace officers, law enforcement officers, and employees of the Department of Transportation. Leitch, who represented RTP, fits into none of these categories, and, accordingly, she had no authority to have Hardin’s car towed. Therefore, RTFs agent, City Wide, also lacked authority. Id. Because it exercised dominion and control over Hardin’s car without authority, City Wide is liable for conversion in spite of the fact that it acted in good faith.

The trial court concluded without explanation that under the facts of this case, he did not have to concern himself with whether or not the subject street was a public street as City Wide was acting as the agent of RTP. In granting summary judgment to City Wide, the trial court concluded that an agent could not be personally liable for removing a third party’s car from a public street at the direction of its principal. As such the trial court erred in granting summary judgment in favor of City Wide on the issue of conversion.

2. The trial court properly granted summary judgment to City Wide with regard to Hardin’s claim of intentional infliction of emotional distress. “The conduct complained of in support of a claim for intentional infliction of emotional distress must be extreme and outrageous. . . . Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim ‘Outrageous!’ . . . Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Punctuation omitted.) Williams v. Stepler, 227 Ga. App. 591, 594 (2) (490 SE2d 167) (1997). On the facts of this case, there is absolutely no basis for this claim.

3. The trial court also properly granted summary judgment in favor of City Wide with regard to Hardin’s claim for attorney fees. OCGA § 13-6-11 provides that a plaintiff may receive her expenses of litigation as damages where “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” We have reviewed the record and find no support for Hardin’s claim for attorney fees on any of these bases.

Decided May 21, 1998.

Ruth C. Hardin, pro se.

Dermer, Rogers & O’Neill, Jennie E. Rogers, Cobb, Grabbe & Spillers, John C. Grabbe TV, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0525.
    McCOY v. WEST BUILDING MATERIALS OF GEORGIA, INC.
    (502 SE2d 559)
   Blackburn, Judge.

On December 10, 1994, Frances McCoy tripped and fell over a wooden board supporting a gym and swing set on display outside of one of the stores owned by West Building Materials of Georgia, Inc. McCoy later sued West on the grounds of premises liability, and the trial court granted summary judgment to West. McCoy now appeals.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewing the evidence in the light most favorable to McCoy, West had assembled a Mountaineer II Gym Kit outside of its store. A large structure, the gym featured a slide on one end, a square fort-like structure in the middle, and a swing on the other end. At its base, the gym was supported by long wooden boards. As she was attempting to enter the store, McCoy tripped over one such board and sustained injuries to her right arm and face. Prior to her fall, McCoy saw a young boy sliding down the gym’s slide. McCoy contends that the actions of the boy startled her, diverting her attention away from the board in her path.

When asked to describe the events of her fall, McCoy, however, indicated that she saw the board prior to her fall. She gave the following explanation of events: “[Answer:] And, uh, at this, uh, tree house thing and the slide I picked up my foot to step over that two-by-four that was nailed onto the thing and it was almost up to the glass wall and I hit it with my toe. It was a two-by-six. . . . [Question:] And [the board] stuck out around four feet? [Answer:] Yes, sir. Yes, sir. [Question:] So then you attempted to step over it? [Answer:] Yes, sir, and I hit it with my toe and fell over on my right side. [Question:] Okay. Before you started heading that way, how far were you would you say when you first noticed that board? [Answer:] Uh, I guess, when I just picked up, starting picking up my foot to put over it. [Question:] Okay. Are you saying you never saw it or noticed it until you started to pick your foot up? [Answer:] Yes, sir. Uh huh. [Question:] Okay. You were picking your foot [up] because you saw it was there? [Answer:] Yes, sir. And I don’t guess I got my foot up high enough and I hit it with my toe on my shoe.”

This is an excerpt from a transcribed interview between McCoy and an insurance agent on January 12, 1995. McCoy’s attorney was present at this meeting. In an April 1, 1997 response to defendant’s requests for admissions, McCoy admitted that the transcript was accurate and that her answers to the questions posed were truthful. However, in a deposition taken on January 10, 1997, over two years after the fall, McCoy offered a different version of events, stating that she did not remember attempting to step over the board and that she never saw the board at any time prior to her fall.

“A matter admitted in response to requests for admission under OCGA § 9-11-36 is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. In form and substance such an admission is generally regarded as a judicial admission rather than an evidentiary admission. Such a solemn admission in judicio is conclusive as a matter of law on the matter stated and cannot be contradicted by other evidence unless it is withdrawn or amended on formal motion.” (Punctuation omitted.) Britt v. West Coast Cycle, 198 Ga. App. 525, 526 (1) (402 SE2d 121) (1991). As McCoy did not seek to withdraw her admissions, her deposition testimony contradicting such admissions cannot be considered. Her responses to the requests for admission conclusively establish that she saw the board and attempted unsuccessfully to step over it.

“ ‘(I)n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.’ Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997). See Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980).” Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 351 (496 SE2d 471) (1998). The true ground of liability is the owner or occupier’s superior knowledge of the hazard and the danger therefrom. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994).

Decided May 21, 1998

R. Keith Prater, for appellant.

Sullivan, Hall, Booth & Smith, Alexander H. Booth, Karl M. Braun, for appellee.

The first prong of the Robinson test was satisfied because it is undisputed that West had constructed the gym set over which McCoy fell. The evidence also shows that McCoy had actual knowledge of the hazard which caused her fall. She stated that she was in the process of lifting her foot over the board when she fell and that she simply did not get her foot high enough. Therefore, as McCoy saw the board which she tripped over prior to her fall it cannot be said that West had superior knowledge of the hazard, which would be the true ground of its liability.

McCoy’s argument that she was distracted by the child playing on the gym set does not alter this outcome. In Robinson, supra at 746, our Supreme Court stated that “when an invitee explains that he was not looking at the location of the hazard which caused injury because of something in the control of the owner/occupier, which purported distraction is of such a nature that the defendant might have anticipated that it would divert an invitee’s attention, e.g., the conduct of a store employee, the premises construction or configuration, or a merchandise display of such a nature that its presence would not have been anticipated by the invitee, the invitee has presented some evidence that the invitee exercised reasonable care for the invitee’s own safety.” (Punctuation omitted; emphasis supplied.) By her own admission, McCoy did see the board over which she tripped prior to her fall. Therefore, McCoy’s claim of distraction does not fit under the standard set out in Robinson. The simple fact is that the plaintiff in this case had actual knowledge of the hazard which caused her fall prior to encountering it. Accordingly, summary judgment in favor of West, which did not have superior knowledge of the hazard in question, was proper.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Andrews, Chief Judge.

text:
    A98A0553.
    BIERRIA v. THE STATE.
    (502 SE2d 542)
   Andrews, Chief Judge.

Gregory Bierria appeals from the judgment entered after a jury found him guilty of aggravated assault, mutiny in a penal institution, and battery. Bierria brings 15 enumerations of error, among which are his claims that the evidence was insufficient to support the verdicts of aggravated assault and mutiny.

The evidence at trial, taken in the light most favorable to the verdict, was that Bierria, a prisoner in the Clayton County jail, was taken on the day in question to the infirmary for routine medical testing. Jean Danison, a nurse on duty in the infirmary that day, testified that she was doing physicals and taking medical histories of the prisoners. When Bierria was brought in, she drew blood from him and gave him a tuberculosis test. Bierria did not resist while Danison performed the tests. After she finished giving him the tuberculosis test, Bierria asked her if she was finished. She replied that she was, whereupon Bierria cursed her and began punching her in the eye and on the head. Danison said Bierria then went after the other infirmary nurse and that was all she remembered until she was in an ambulance going to the hospital. Danison suffered bruises and contusions to her left eye and a bump on the head.

Phyllis White, the nurse who took Bierria’s vital signs and gave him forms to fill out prior to undergoing the blood and TB tests said Bierria never indicated any unwillingness to take the tests and was cooperative in filling out the forms and having his weight, height and blood pressure taken. But, after Bierria hit Danison, he turned on White, cursed her, and began hitting her on the head. She said he threw her across the room and then came after her and began beating her head on the floor and on a bench. Nurse White said Deputy Erlitz pulled Bierria off her and she saw Bierria beating him in the face. When she saw Bierria pick up a chair, she crawled under a desk and hid. White testified that as a result of the beating, she had a ruptured disc, a concussion, and was still having migraine headaches. She also stated that she was undergoing tests for a possible closed head injury.

Bill Erlitz, the Sheriff’s deputy on duty in the infirmary that day testified that when he saw Bierria hitting Nurse Danison, he got up and ran around a counter to help her. By the time he got to her, Erlitz said Bierria had attacked Nurse White and was banging her head on the floor. Erlitz testified that when he pulled Bierria off Nurse White, Bierria hit him in the face. Both Bierria and Erlitz fell to the floor, with Bierria falling on top and trying to gouge Erlitz’s eyes out.

Erlitz said that while he was lying on the floor, he saw Shawn Williams, the trustee, come running across the infirmary to help him. At that point, Bierria got up, grabbed a chair and began swinging it over his head. Erlitz put his hands up to protect himself and Bierria hit him on the hand with the chair.

Erlitz said he saw the trustee run out of the infirmary with Bierria behind him, swinging the chair. Erlitz ran after Bierria and, with the help of several other deputies, finally subdued him.

Shawn Williams, the trustee, testified that he first realized something was wrong when he saw Bierria beating Nurse White’s head against the bench and the floor. Williams said he saw Erlitz going to help Nurse White so he ran outside and hollered for help. When he went back into the infirmary he saw Bierria on top of Deputy Erlitz and ran at him and knocked him off the deputy. Williams looked at Erlitz to see if he was all right and when he turned around, saw Bierria coming toward him with a chair. Williams said he ran out of the infirmary with Bierria chasing him. Bierria threw the chair at him, but it did not hit Williams. Williams ran down one hallway and Bierria turned and ran in a different direction.

Karen Reid, another employee who was in the infirmary at the time, testified that she saw Bierria hit Nurse Danison, saw him throw Nurse White across the room and begin beating her head on the floor and bench and saw him hit Deputy Erlitz. At that point, she called to Shawn Williams for help. She said after Shawn knocked Bierria off Deputy Erlitz, Bierria picked up a chair and left the room following Shawn Williams. Another employee also testified she saw Bierria beating Nurse White’s head on the floor and bench and hitting Deputy Erlitz in the face.

Bierria testified in his own defense and said he did not remember hitting anyone. He stated he remembered a needle being stuck in him and trying to push someone out of the way and trying to run out of the infirmary. He said he did not believe he hit the nurse because his right hand was injured.

1. The evidence was sufficient to support the verdict of guilty on the charges of aggravated assault on Deputy Erlitz and mutiny in a penal institution. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; more-overt,] an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].” Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). The jury, assessing the weight of the evidence and the credibility of the witnesses, chose not to believe Bierria’s testimony that he did not remember hitting anyone on the day in question and chose rather to believe Erlitz’s testimony that Bierria hit him with the chair. Weems v. State, 267 Ga. 182, 183 (476 SE2d 585) (1996).

2. Next, Bierria argues that his retrial was barred by insufficient evidence in the first trial. He cites to no authority in support of this proposition and we find none. Indeed, case law is to the contrary. “The Supreme Court of the United States consistently has affirmed the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which the defendant was subjected.” Rower v. State, 267 Ga. 46 (472 SE2d 297) (1996) (citing Richardson v. United States, 468 U. S. 317, 326 (104 SC 3081, 82 LE2d 242) (1984)). Further, to the extent that Bierria argues other enumerations of error in this one enumeration, we will not consider them. OCGA § 5-6-40; Robinson v. State, 200 Ga. App. 515, 518 (408 SE2d 820) (1991).

3. In his next enumeration, Bierria contends that retrial was barred because the “State committed prosecutorial misconduct in failing to furnish copy of indictment [sic] [to Bierria] in an informed manner.” “A charge of prosecutorial misconduct is a serious charge and is not to be lightly made; having raised it, appellant has the duty to prove it by the record and by legal authority.” Moclaire v. State, 215 Ga. App. 360, 364 (451 SE2d 68) (1994) (quoting Meredith v. State, 211 Ga. App. 213, 215 (438 SE2d 644) (1993)). Here, Bierria cites to no legal authority in support of this claim. The record shows that Bierria was arraigned on January 2, 1997, and given a copy of the indictment at that time. Defense counsel did not file an entry of appearance until January 6, 1997, and trial was not until February 17, over six weeks later. That trial ended in a mistrial. The error, if any, is harmless. Clark v. State, 138 Ga. App. 266 (226 SE2d 89) (1976).

4. Bierria also contends the State failed to comply with discovery requests in a timely fashion. There is no evidence in the record to support this enumeration of error. Further, defense counsel never requested relief as a result of this alleged failure to comply with discovery. Counsel never stated to the trial court that he wanted a continuance or that he was not prepared to proceed to trial. Therefore, as Bierria can show neither harm nor that the trial court was asked to make a ruling on this issue, this enumeration of error is also without merit. Mozier v. State, 207 Ga. App. 264, 268 (427 SE2d 551) (1993); Holland v. State, 197 Ga. App. 496, 497 (398 SE2d 810) (1990).

5. Bierria next claims the trial court erred in refusing to allow him to rely on a plea of insanity or mental incompetency at the time of the crime. We fail to understand the reason behind enumerating this as error since defense counsel stated unequivocally that he did not intend to raise mental illness as a defense or plead insanity.

6. Bierria next argues the trial court erred in not allowing his expert witness to testify as to Bierria’s mental state at the time of the incident. Defense counsel admitted at trial that he could not raise the defense of insanity because he failed to comply with the ten-day notice requirement of Uniform Superior Court Rule 31.4. Nevertheless, Bierria argues on appeal that the trial court erred in not allowing a psychiatrist called by him to testify as to his mental capacity. As this evidence is clearly within the purview of those issues requiring notice under USCR 31.4, the trial court did not err in limiting the psychiatrist’s testimony on this issue. Cox v. State, 216 Ga. App. 86, 88 (453 SE2d 471) (1995).

7. In his next enumeration, Bierria claims the trial court erred in admitting into evidence a medical consent form Bierria signed on July 10, 1996. Bierria contends that since the form was signed ten days before the tests were administered on July 23, it was error to admit it for purposes of showing that the tests given to him on July 23, 1996, were with his consent.

As the state points out, Bierria raised at trial the issue of whether or not he consented to the tests. Accordingly, the consent to medical treatment form was relevant. “Admissibility of evidence is a matter which rests largely within the discretion of the trial court; unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” Campbell v. State, 215 Ga. App. 14, 16 (449 SE2d 366) (1994). The court did not err in admitting the form into evidence.

8. In two enumerations, Bierria argues the trial court erred in admitting photographs without the testimony of the person who took them. We disagree. “A photograph is authenticated by showing it is a fair and accurate representation of the scene depicted. Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness have been present when the photograph was taken.” Isaacs v. State, 259 Ga. 717, 732 (386 SE2d 316) (1989).

9. Next, Bierria claims that the crime of mutiny in a penal institution should have merged with the crime of aggravated assault. Bierria puts forth no specific reasoning in support of this contention, merely setting out case law that is not on point. In any event, mutiny in a penal institution does not merge with aggravated assault as a lesser included offense and there is no merit to this enumeration.

A crime is a lesser included offense when: “(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6.

Here, mutiny in a penal institution requires proof that a person in lawful custody assailed, opposed or resisted an officer of the law with the intent to cause serious bodily injury. OCGA § 16-10-54. Aggravated assault, on the other hand, is committed when a person assaults someone: “(1) With intent to murder, to rape, or to rob; (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. . . .” OCGA § 16-5-21.

In looking at these two Code sections, it becomes readily apparent that mutiny in a penal institution is established by proof of different elements than those required to establish aggravated assault and, therefore cannot be a lesser included offense of aggravated assault.

10. Bierria argues the trial court erred in granting the State’s motion in limine preventing defense counsel from eliciting testimony as to why Bierria was in jail, what charges were pending against him and the disposition of those charges. This enumeration of error is totally without merit and misstates the ruling of the trial court. Although the court initially granted the State’s motion in limine, the trial court reversed its ruling on this issue a short time later and stated that it would allow the defendant to introduce evidence of the charges Bierria was held on at the time of the incident and the disposition of those charges.

11. Next, Bierria argues the court erred when charging the jury on the crime of battery. However, after charging the jury the court asked whether the defense had any objections to the charge and defense counsel replied, “None, Your Honor.” “Clearly, it is the law of this state, even in criminal cases, that if the trial court asks if there are any objections to the charge given, counsel for the defendant must either state his objections or reserve the right to make such objections on motion for new trial or on appeal or waive any such objections.” Allen v. State, 177 Ga. App. 600, 603 (340 SE2d 246) (1986). Accordingly, this enumeration of error presents nothing for our review.

12. Bierria contends the trial court erred in denying his motion for new trial without a hearing. The record shows that Bierria filed his motion for new trial pro se. The trial court asked the Court Administrator to write Bierria and enclose an application for indigent representation and “render whatever assistance he could to Mr. Bierria, if Mr. Bierria considered himself indigent.” The Administrator wrote Bierria on July 8, 1997, and argument on the motion for new trial was re-set for August 25, 1997. Because Bierria never responded to the Administrator’s letter, the trial court denied the motion without a hearing. Under these circumstances, the trial court was justified in concluding that Bierria waived the hearing on his motion for new trial. Peyton v. Peyton, 236 Ga. 119, 121 (223 SE2d 96) (1976); Moody v. State, 14 Ga. App. 523 (2) (81 SE 588) (1914).

13. In his last enumeration of error, Bierria argues that, under the circumstances of this case, a 12-year sentence for aggravated assault was an abuse of discretion. The sentence was within the statutory limits. OCGA § 16-5-21 (b). “This court will not review for legal error any sentence which is within the statutory limits.” Ogles v. State, 218 Ga. App. 92, 95 (460 SE2d 866) (1995). Any claim as to the harshness of the sentence should be addressed to the sentence review panel as provided for in OCGA § 17-10-6.

Decided May 21, 1998.

Charles T. Brant, for appellant.

Gregory P. Bierra, pro se.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A0558.
    MARABLE v. FIRST UNION NATIONAL BANK.
    (502 SE2d 557)
   Blackburn, Judge.

First Union National Bank sued Charles Marable, Sr., for amounts remaining due under a promissory note following the repossession and sale of an automobile securing the note. Marable asserted several counterclaims, including claims for wrongful repossession, conversion, and intentional infliction of emotional distress. The trial court granted summary judgment in favor of First Union on its claim and Marable’s counterclaims, and Marable appeals.

“On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. ... In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in OCGA § 9-11-56 must set forth specific facts showing that there is a genuine issue for trial. OCGA § 9-11-56 (e).” (Punctuation omitted.) World Championship Wrestling v. City of Macon, 229 Ga. App. 248 (493 SE2d 629) (1997).

On March 18, 1985, Marable’s wife and son executed a promissory note in favor of National City Bank, First Union’s predecessor-in-interest. The note was secured by a 1985 Ford Mustang automobile. On June 11, 1986, Marable also signed the note as a co-maker. At that time, Marable and National City Bank also executed a loan extension agreement, which Marable contends extended the maturity date of the loan by four months. The agreement itself does not specifically set out the length of the extension, leaving blank the space for the new maturity date. However, Pete O’Dillon, who executed the agreement on behalf of National City Bank, testified that the extension was for four months. The agreement provided that Marable would pay a $774.30 extension fee and would make monthly payments on the note beginning on June 25, 1986, and continuing until maturity. The agreement provided that all terms of the note remained in force except as modified by the agreement. Marable made no payments on the note after January 10, 1989, and the vehicle was repossessed in April 1989.

1. Marable contends-that he was not in default at the time of the repossession, because First Union failed to take into account the four-month extension granted in June 1986. Under Marable’s reasoning, since he received a four-month extension and was only two payments behind at the time of repossession, he was actually two months ahead in payments.

This reasoning is flawed, as Marable has misconstrued the effect of the extension agreement. The agreement merely extended the maturity date of the loan for four months, and in no way affected Marable’s obligation to continue making monthly payments on the note. The agreement did not grant Marable a four-month grace period in which payments were not required, but expressly provided that monthly payments be made starting on June 25, 1986, which was the next regularly scheduled payment date after the execution of the extension agreement. By failing to make any monthly payments after January 10, 1989, Marable breached the terms of the note and extension agreement, and the fact that the maturity date had been extended in no way affects this analysis. Marable’s suggestion that the $774.30 extension fee should have been applied to the monthly payments on the loan is also without merit, as the extension agreement clearly provided that such payment was in consideration of the grant of an extension.

2. Marable’s second enumeration contends that the trial court erred in granting summary judgment to First Union on Marable’s counterclaims. However, as Marable failed to address this enumeration in his brief, it is considered abandoned. See Court of Appeals Rule 27 (c) (2).

Decided May 21, 1998.

William A. O’Dell, for appellant.

Jones, Byington, Durham & Payne, Frank H. Jones, for appellee.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.

       National City Bank was subsequently acquired by First Union.


author: Judge Harold R. Banke.

text:
    A98A0658.
    JONES v. THE STATE.
    (502 SE2d 557)
    Decided May 21, 1998.

      Billy M. Grantham, for appellant.
   Judge Harold R. Banke.

Juan Jones was convicted of selling cocaine. In his sole enumeration, he challenges the sufficiency of the evidence establishing his identity as the perpetrator. Held:

The record shows that an individual resembling Jones sold crack cocaine to an undercover team which videotaped the transaction. The jury was shown the videotape twice and viewed still photographs taken from the videotape. In addition, at trial both the undercover officers identified Jones as the individual who sold them the crack. Both also testified that the transaction took place through the driver’s side window of the officers’ vehicle.

Notwithstanding Jones’ mother’s testimony that Jones was attending a barbeque at the time of the offense and the sheriff’s doubts about the video, the evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to identify Jones as the perpetrator. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Determinations of witnesses’ credibility, including the accuracy of eyewitness identification, are within the jury’s exclusive province. Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653) (1989). Our role is limited to evaluating the sufficiency of the evidence, not reweighing it. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

Judgment affirmed.

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

J. Brown Moseley, District Attorney, John A. Warr, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A98A0696.
    BLANTON v. WHELAN.
    (502 SE2d 746)
   Birdsong, Presiding Judge.

Roger Blanton appeals the order of the superior court granting summary judgment to Ron Whelan and the denial of Blanton’s motion for summary judgment. We affirm.

In April 1975, Whelan borrowed the sum of $34,200 from Standard Federal Savings & Loan Association of Atlanta, which was secured by deed on certain real property situated in Douglas County, Georgia. Repayment was to begin June 1, 1975. On the same day, Whelan borrowed the sum of $9,400 from David Todd, Inc., which was secured by deed on the same tract of property in Douglas County, Georgia. Repayment of this debt was to begin on April 1, 1980. However, this deed contained the following specific language. “This deed is given subject to a prior security deed of even date herewith from Grantor herein to Standard Federal Savings and Loan Association of Atlanta for $ 34,200.00, a default of which occurs in the Standard Federal loan deed will constitute a default in this loan deed.” Blanton is transferee of the second note and brought suit seeking repayment.

Blanton asserts the trial court erred in granting appellee’s motion for summary judgment based on the expiration of the applicable statute of limitation because Whelan was not obligated to begin repayment until April 1, 1980, and Blanton’s predecessor never elected to exercise an optional acceleration clause found in the generic language of Exhibit “B.” Blanton’s reliance on this clause is misplaced. Held:

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Viewed in this light, Whelan executed the promissory note under seal to Standard Federal Savings & Loan Association on April 17, 1975. Also, Whelan signed a second mortgage to Blanton’s predecessor, David Todd, Inc., on the same date and the specific language of that note’s acceleration clause states, as noted above, a default on the first mortgage would constitute a default on the second mortgage. Whelan defaulted on the first payment due June 1, 1975, and a real estate agent of David Todd, Inc. had Whelan convey the property back in October 1975. Blanton filed his complaint on June 5, 1995 and Whelan was served with the complaint 18 months later on December 7, 1996. OCGA § 9-3-23 specifies that the statute of limitation on instruments under seal runs for 20 years from the time the cause of action accrues. The trial court correctly found this cause of action to have accrued upon default on June 1, 1975, and no later than October 1975, when David Todd, Inc.’s real estate agent transferred the property back. Hence, when Whelan was served, this cause of action was over 20 years old and therefore barred by the statute of limitation. We cannot conclude that the trial court erred in determining that no genuine issue of material fact remains and that Whelan was entitled to judgment as a matter of law. See Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832) (1993).

Decided May 21, 1998.

Levy & Adams, D. Merrill Adams, Gary A. Moss, for appellant.

Kris K. Skaar, for appellee.

2. Blanton also asserts the trial court erred in failing to grant his motion for summary judgment. Because we find the trial court correctly granted Whelan’s motion for summary judgment, this enumeration of error is without merit.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A98A1190.
    CHAMBERS OF GEORGIA, INC. v. DEPARTMENT OF NATURAL RESOURCES et al.
    (502 SE2d 553)
   Johnson, Judge.

Chambers of Georgia, Inc. appeals from the order granting summary judgment to the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources and to EPD Director Harold F. Reheis, individually and in his official capacity.

Chambers filed an application for a solid waste handling permit and a request for site suitability for a municipal solid waste landfill. Reheis denied the application, stating that OCGA § 12-8-25.4 prevented issuance of the permit for proposed landfill expansion, because the site would encompass a circular area having a two-mile radius and already containing all or portions of three or more landfills. Chambers did not exhaust its administrative remedies regarding this decision. Instead, approximately 14 months later, Chambers filed a petition for declaratory judgment and injunctive or other relief against EPD and Reheis. Chambers alleges it was harmed by the denial of its application and request. The petition averred that OCGA § 12-8-25.4 was unconstitutional both facially and as applied, and sought an order declaring the statute unconstitutional and enjoining enforcement of the statute as to Chambers’ planned modifications and expansions of the landfill.

In response, EPD and Reheis contended that Chambers failed to exhaust its administrative remedies, declaratory judgment and injunctive relief were inappropriate, and they were entitled to judgment as a matter of law. Chambers contended that further administrative review was unnecessary and futile because Reheis was required to deny the application in accordance with the provisions of OCGA § 12-8-25.4. Chambers also requested that the trial court enlarge the time for its response to EPD’s summary judgment motion as discovery was still outstanding.

The Administrative Procedure Act and OCGA § 12-2-2 (c) are the exclusive remedies for hearings and reviews of actions of the Director of EPD taken pursuant to the authority of the Georgia Comprehensive Solid Waste Management Act, OCGA § 12-8-20 et seq. See Nix v. Long &c., Inc., 262 Ga. 506 (1) (422 SE2d 195) (1992); City of Arcade v. Emmons, 228 Ga. App. 879, 885 (3) (494 SE2d 186) (1997).

The first issue before us is whether declaratory judgment is an available legal remedy under the attendant facts. We conclude that it is not. Chambers elected not to timely petition for a hearing before an administrative law judge after its application was denied. Although the constitutionality of the statute could not be adjudicated during an administrative hearing, this proceeding would provide the proper forum for raising the constitutional objection at the earliest opportunity, keeping the actual controversy pending, and ultimately providing an avenue for judicial review of the constitutional issue. “A superior court reviewing the decision of an administrative agency may decide a constitutional challenge to the agency’s rules raised during the administrative process. [Cit.]” State Health Planning Agency v. Coastal Empire Rehabilitation Hosp., 261 Ga. 832 (412 SE2d 532) (1992).

However, in this case, the action became final without Chambers raising and preserving the constitutional issue. By electing not to exhaust administrative remedies, Chambers was no longer entitled to petition either for an administrative hearing or for judicial review. See generally OCGA §§ 12-2-2 (c) (2) & (3); 50-13-19 (b). Without filing a new application, Chambers filed a petition for declaratory judgment contending that OCGA § 12-8-25.4 is unconstitutional on its face and as applied, and seeking to have the statute declared null and void. At the time the petition was filed, however, no pending case or controversy existed. The original application proceeding concluded adversely to Chambers, after it elected not to timely pursue the administrative remedies which would have kept the actual controversy alive. A new case or controversy is not currently pending because Chambers then elected to seek declaratory judgment rather than initiate a new application.

OCGA § 9-4-2 (a) provides for declaratory judgments in cases of actual controversy. Cramer v. Spalding County, 261 Ga. 570, 572 (2) (409 SE2d 30) (1991). “[A] court may not declare the rights of parties when there is no actual or justiciable controversy; it has no province to determine whether or not a statute, in the abstract, is valid.” (Citations omitted.) Fourth Street Baptist Church &c. v. Bd. of Registrars, 253 Ga. 368, 369 (1) (320 SE2d 543) (1984). Actual controversy means a justiciable controversy where there are interested parties asserting adverse claims on an accrued set of facts. Cramer, supra. “Absent an actual controversy involving palpable insecurity, a court is without power to act by way of declaratory judgment.” Id.; compare Sentry Ins. v. Majeed, 194 Ga. App. 276, 278 (2) (390 SE2d 269), aff'd, 260 Ga. 203 (391 SE2d 649) (1990) (declaratory judgment cannot be maintained where there is no specific case or controversy pending).

Additionally, the rights of the parties have accrued and the positions of the parties regarding the constitutionality and applicability of OCGA § 12-8-25.4 are firmly established. Thus contrary to its contention, Chambers is not walking in the dark as to what future position to take. See generally Fourth Street Baptist, supra at 369 (1). Declaratory judgment will not be entertained where the rights of the parties have accrued and the plaintiff faces no risk of taking future undirected action. State Health, supra at 832-833; George v. Dept. of Natural Resources, 250 Ga. 491, 492 (299 SE2d 556) (1983).

Chambers, in effect, asks this Court to rule in the abstract as to issues it anticipates will arise should it file a new application. In the absence of a case or actual controversy currently pending and because Chambers’ position as to the constitutionality of the statute is already fixed, what Chambers seeks is our advisory opinion so it can test the strength of EPD’s anticipated future defenses. “Not even in a declaratory judgment action is the court permitted to render an advisory opinion. [Cit.]” McDowell v. Judges Ex Officio, 235 Ga. 364, 365 (219 SE2d 713) (1975).

We need not decide whether Chambers was required, pursuant to George, supra, to exhaust its administrative remedies under the Solid Waste Management Act and Administrative Procedure Act or to expand the time for response to summary judgment until discovery was complete. The trial court did not err in granting summary judgment as déclaratory judgment was not here appropriate. See generally Edwards v. Davis, 160 Ga. App. 122, 123 (2) (286 SE2d 301) (1981). A grant of summary judgment must be affirmed if it is right for any reason. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61) (1991).

Decided May 21, 1998.

Wilson, Brock & Irby, Richard W. Wilson, Jr., James S. Teague, Jr., Gerald S. Walters, for appellant.

Thurbert E. Baker, Attorney General, Brenda H. Cole, Deputy Attorney General, Robert S. Bomar, Senior Assistant Attorney General, Diane L. Deshazo, Timothy J. Ritzka, Assistant Attorneys General, for appellees.

Judgment affirmed.

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


text:
    A98A0655.
    MABOU v. ELLER et al.
    (502 SE2d 760)
   Blackburn, Judge.

Misty Mabou appeals the trial court’s grant of summary judgment to Stanley and Johnnie Eller on their petition pursuant to OCGA § 19-8-5 to adopt Mabou’s infant girl and the denial of Mabou’s motion for summary judgment. Mabou contends the court erred in granting the motion because the evidence shows she surrendered her parental rights while under duress. She also claims the petition was fatally defective. We disagree and affirm.

We note that, in cases such as this, the trial court generally sits as trier of fact without a jury and its judgment “will not be set aside by this court if that judgment is supported by any evidence and is not clearly erroneous.” Lee v. Stringer, 212 Ga. App. 401, 403 (3) (441 SE2d 861) (1994). In this case, however, the Ellers moved for summary judgment based on the evidence of record, which consisted primarily of deposition testimony, and Mabou moved for summary judgment due to alleged defects in the petition. The trial court granted the Ellers’ motion for summary judgment and denied Mabou’s motion. Although deciding adoption cases by summary judgment is unusual, each of the parties sought resolution by summary judgment and OCGA § 19-8-9 (b) narrowly limits the grounds for withdrawing a surrender of parental rights after the statutory ten-day period. Mabou demonstrates no harm from the summary judgment procedure and merely claims that the evidence was insufficient to support summary judgment.

Because the trial judge decided this case as a matter of law on summary judgment, we shall apply the standard of review applicable to summary judgments as opposed to the more deferential standard applicable to judgments following trial. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. Mabou contends the trial court erred in granting the Ellers’ motion for summary judgment because an issue of fact remained as to whether her surrender of parental rights was made under duress. Viewed in the light most favorable to Mabou, the record reveals the following pertinent facts:

Mabou became pregnant in February 1996, when she was 16 years old. At that time, she was living with her father. In August 1996, Mabou moved in with her boyfriend, Michael Smith, and his father, but she left in September 1996 to live with her mother in Louisiana. In October 1996, she returned to Georgia to live with the Smiths. At some point after Mabou left her father’s house in August 1996, her father, who was in the military, was transferred to Tennessee.

When Mabou was six months pregnant, she was introduced to Debra Hall, a nurse, who told Mabou she knew a married couple who might be interested in adopting the child. After meeting with the Ellers, Mabou decided to allow them to adopt her child. On October 25, 1996, the Ellers, Mabou, and the father of the child signed a prebirth agreement, pursuant to which the Ellers agreed to pay the medical expenses associated with the pregnancy, and Mabou and the father agreed to execute a termination of parental rights following the birth of the child.

On November 26, 1996, shortly after Mabou turned 17 years old, Mabou’s daughter was born. The day after the child was born, Mabou signed a surrender of parental rights and final release for adoption. Mabou knew the documents pertained to the adoption. She admitted that the Ellers’ lawyer did not pressure her to sign the documents, that no one threatened her, and that she signed the documents voluntarily. Mabou received copies of the documents as she signed them. The Ellers then took the child home where she has lived continuously since her birth. On December 17, 1996, the Ellers filed their petition for adoption under OCGA § 19-8-5. On January 10, 1997, Mabou, through her attorney, responded to the petition by writing a letter to the clerk of court attempting to withdraw her surrender of parental rights outside the ten-day period provided in OCGA § 19-8-9 (b).

A parent has the right to withdraw a surrender of parental rights within ten days. OCGA § 19-8-9 (b). After the ten-day period, however, a surrender may be withdrawn only upon a showing of “duress, fraud or incapacity when signing the surrender, and then, as with all contracts, the consent is invalidated and the surrender becomes voidable.” Hicks v. Stargel, 226 Ga. App. 639, 640 (1) (487 SE2d 428) (1997); In the Interest of B. G. D., 224 Ga. App. 124 (479 SE2d 439) (1996); see also OCGA § 19-8-9 (b). Although Mabou may have been under emotional and financial pressure when she made the decision to surrender her parental rights, that pressure did not constitute legal duress. “Duress is considered as a species of fraud in which compulsion in some form takes the place of deception in accomplishing an injury. . . . Duress which will avoid a contract must consist of threats of bodily or other harm, or other means amounting to coercion, or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.” (Punctuation omitted.) Tidwell v. Critz, 248 Ga. 201, 203 (1) (282 SE2d 104) (1981). “Duress must come from without, and not from within. It must be exerted by the other person or his agent, and can not be a creation of the mind of the person claiming his will has been restrained by fear.” King v. Lewis, 188 Ga. 594, 600 (2) (4 SE2d 464) (1939). In this case, Mabou felt “pressured.” She was understandably burdened by the emotional and financial considerations inherent in giving birth and raising a child alone. However, these pressures were not unusual under the circumstances and do not amount to legal duress. The pressures were neither caused by the Ellers or others nor were they manipulated in any way to induce or coerce Mabou to surrender her parental rights. Because there was no evidence of legal duress invalidating Mabou’s surrender of parental rights, the trial court properly granted the Ellers’ motion for summary judgment. Lau’s Corp. v. Haskins, supra.

We note that Mabou was 17 years old when she signed the surrender of parental rights form and when her child was born. However, Mabou’s minority was not raised or argued below or on appeal and therefore, it will not be addressed on appeal (see OCGA §§ 39-1-1; 1-2-8; 13-3-20; 44-5-41 and In the Interest of B. G. D., supra at 128-129). E.g., Taylor v. State, 186 Ga. App. 113 (366 SE2d 422) (1988). Nothing herein is intended to imply any position by the court on this issue.

2. Mabou also argued the motion for summary judgment should have been denied because the petition was fatally defective.

(a) We have reviewed the petition and find that any defects regarding the name, age, marital status, and residence of the petitioners, the affidavit of the adoptive parents’ legal representative, as well as information pertaining to the circumstances of the adoption, were timely cured by amendment. See Owens v. Worley, 163 Ga. App. 488, 490 (3) (295 SE2d 199) (1982).

(b) The surrender of parental rights signed by Mabou and attached to the petition substantially conformed with the standard form set out in OCGA § 19-8-26 (c). Although Mabou’s form did not contain those paragraphs pertaining to surrender of parental rights to the Department of Human Resources in the event a petition for adoption was not filed within 60 days, that language was inapplicable under the circumstances of this case and thus mere surplusage. Lee v. Stringer, 212 Ga. App. 401, 402 (1) (441 SE2d 861) (1994).

(c) OCGA § 19-8-13 (a) (3) (C) provides that a petition for adoption under these circumstances shall include a mother’s affidavit as provided in OCGA § 19-8-5 (g) and meeting the requirements of § 19-8-26 (h). Although the petition states that the mother’s affidavit was attached as an exhibit, that affidavit did not substantially conform to the affidavit set forth in OCGA § 19-8-26 (h). As a general rule, the failure to attach or explain the absence of a statutorily mandated document when the petition is filed requires reversal because the “adoption statutes should be strictly construed and meticulously followed.” (Punctuation omitted.) Spires v. Tarleton, 225 Ga. App. 117, 118 (1) (483 SE2d 337) (1997).

However, this rule has exceptions. We have held that an adoption will not be set aside because of technical flaws in the petition under certain circumstances. Id. at 118 (1). For example, if, under the particular facts of the case, the missing document or portion thereof is shown to be immaterial, we will not upset an otherwise valid surrender of parental rights and adoption. Id.; Lee v. Stringer, supra at 401-402 (1).

“[T]he purpose of the mother’s affidavit, as stated on the form itself, is to gather information to be used by the agency in notifying and determining the rights of the father. It does not purport to protect or otherwise affect the rights of the mother.” (Emphasis omitted.) Families First v. Gooden, 211 Ga. App. 272, 274 (2) (439 SE2d 34) (1993). In this case, the father’s identity was known. Paternity was never disputed. The father voluntarily participated in the adoption proceeding, received proper notice of the petition, and signed a surrender of parental rights form which was attached as an exhibit to the petition. Under the facts of this case, the mother’s affidavit was immaterial and any defect in the petition due to its absence was harmless. Lee v. Stringer, supra at 401-402 (1).

(d) OCGA § 19-8-13 (c) provides that in a proceeding for an adoption under OCGA § 19-8-5, the petitioner shall file with the petition “in a manner acceptable to the court” a full accounting of financial disbursements made in connection with the adoption. The petitioners made the required disclosure in an affidavit attached to the petition. Further, the petitioners submitted a detailed disbursement affidavit which was incorporated into the petition by amendment. The trial court concluded these sources were sufficient to enable it to find that no improper financial transaction associated with the adoption occurred. We find no error. Owens v. Worley, supra at 490 (3).

Decided May 22, 1998

Pamela Richards-Greenway, for appellant.

James E. Cornwell, Jr., Solicitor, for appellees.

Judgment affirmed■

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A0963.
    THOMAS v. DEPARTMENT OF TRANSPORTATION et al.
    (502 SE2d 748)
   Blackburn, Judge.

Karen Thomas was killed in an automobile accident at a Department of Transportation road construction site. The accident occurred when another car driven by 16-year-old Michael Oxenrider swerved into Thomas’ lane and hit Thomas’ vehicle head-on. Appellant Alma Yvonne Thomas, as guardian of Thomas’ children, sued the DOT and others, contending that the accident was caused by the dangerous road conditions at the construction site.

Several days after the accident, another accident occurred at the same DOT site, injuring one of the drivers, Jane Studard. The trial court granted the defendants’ motion in limine to exclude evidence of this subsequent accident. The court also granted the defendants’ motion in limine to exclude evidence of remedial measures taken after the second accident. After a non-jury trial, the trial court entered judgment for the defendants.

The accident in this case occurred just south of the intersection of Ga. 1 and Adams Road, an area that had been resurfaced shortly before the accident. Just north of the accident scene is a “transitional” area where two southbound lanes merged into a single lane at the same point where two northbound lanes merged into one lane. Oxenrider was heading southbound on Ga. 1 when he veered onto the unimproved right shoulder. As he attempted to return to his lane, he overcompensated and crossed over into the northbound lane, where he collided head-on with Thomas’ automobile.

Plaintiff contended that Oxenrider saw Thomas’ vehicle approaching him and believed that it was in his lane. Because the resurfacing had obliterated the white lines on the edge of the road, plaintiff claimed that Oxenrider was unable to determine his position on the road and thus drove off onto the shoulder. Plaintiff contended that the accident was thus proximately caused by defendants’ failure to provide adequate road markings and traffic control devices.

In its written order, the trial court found that Oxenrider had already passed southbound through the transitional area before he left the road, and that even plaintiff’s expert conceded that no additional temporary pavement markings were required south of the transitional area “because there was no hazardous condition at that point.” The court further noted that, although there were no white markings on the edge of the lane, there was a temporary centerline at the point Oxenrider left the road. The court found that Oxenrider “was aware of the broken temporary centerline which was reflective and thus, he had adequate guidance to maneuver his vehicle through the area.” Oxenrider also testified that he would have moved his vehicle over to the right to get away from the oncoming vehicle even if there had been a white edge line. The court also noted that, just minutes before the accident, Oxenrider had traveled northbound on Ga. 1 through the accident scene before turning around and heading southbound. Oxenrider had also traveled through the area a couple of nights earlier, was aware of the resurfacing project, and was familiar with the road. Given all of these facts, the trial court found that plaintiff “has failed to show by a preponderance of the evidence that the absence of adequate temporary pavement markings and other traffic control devices was the joint and concurrent proximate cause of the accident.”

1. In two enumerations, plaintiff contends that the trial court erred in excluding evidence regarding subsequent remedial measures. Plaintiff sought to introduce evidence that, after the second accident at the site, the DOT brought in a crew to paint white edge stripes on the road. The foreman of the crew was told to paint the stripes because a fatality had occurred at the site, although the DOT’s standard policy was not to paint such stripes until the resurfacing project had been completed. In addition, the DOT placed additional traffic control signs throughout the project. The trial court granted defendants’ motion in limine to preclude evidence regarding these remedial measures, and at trial held that plaintiff could not present such evidence as rebuttal evidence.

As an initial matter, plaintiff has not shown that she was harmed by the exclusion of evidence of remedial measures. The trial judge sat as trier of fact in this case, the parties having waived their right to a jury trial. Evidence of the remedial measures was presented to the judge in connection with defendants’ motion in limine. Therefore, the judge was aware of such evidence when she rendered her judgment in favor of defendants. In excluding such evidence, the judge expressed her conclusion that such evidence was not relevant to the issues at trial. As discussed above, the judge’s decision was based on her conclusion that the absence of white lane markings and traffic control devices was not the proximate cause of the accident.

Moreover, the trial court did not abuse its discretion in excluding such evidence. “Evidence of subsequent remedial measures generally is inadmissible in negligence actions, because the admission of such evidence basically conflicts with the public policy of encouraging safety through remedial action, for the instituting of remedial safety measures might be discouraged if such conduct is admissible as evidence of negligence.” Royals v. Ga. Peace Officer Standards &c. Council, 222 Ga. App. 400, 401 (1) (474 SE2d 220) (1996); see also Chastain v. Fuqua Indus., 156 Ga. App. 719, 722 (3) (275 SE2d 679) (1980). “It is generally presumed that evidence of subsequent repair is submitted by plaintiffs for the purpose of showing that the defendant recognizes and admits his negligence.” Brooks v. Cellin Mfg. Co., 251 Ga. 395, 397 (306 SE2d 657) (1983).

There are certain exceptions to the general rule of exclusion, however, such as when the remedial action “tends to prove some fact of the case on trial (other than belated awareness of negligence, of course), to show contemporary knowledge of the defect, causation, a rebuttal of a contention that it was impossible for the accident to happen in the manner claimed, and so on. Such evidence may also be admitted where the feasibility of repair or modification is an issue.” (Citation and punctuation omitted.) Royals, supra. “As with the issue of relevancy, the admission of remedial evidence under any reasonable and probative exception lies in the sound discretion of the trial court. . . and will not be reversed absent manifest abuse.” (Punctuation omitted.) Dept. of Transp. v. Cannady, 230 Ga. App. 585, 588 (497 SE2d 72) (1998).

Plaintiff contends that evidence of remedial measures was admissible to rebut defendants’ contention that the accident did not happen in the manner claimed, to rebut defendants’ contention that the traffic control methods used were the safest possible, to show defendants’ knowledge of causation, and to show defendants’ knowledge of the dangerous condition of the roadway. Each of these contentions is without merit. Although defendants contend, and the court found, that the accident was not caused by the lack of white lane markings or other traffic control devices, they do not claim that it was impossible for the accident to have occurred because of such conditions. Accordingly, evidence of remedial measures was not required to rebut a claim of impossibility. See Chastain, supra at 722. Defendants do not contend that the traffic control methods used were the safest possible, but that they were adequate under the circumstances. Thus, evidence of remedial measures was not necessary to rebut a non-existent claim. To say that the remedial measures undertaken by defendants show their “knowledge of causation” is but another way of saying that such measures show their “belated awareness of negligence,” which is what thé exclusion was designed to prevent. Id. Finally, the undertaking of remedial measures after the accident does not demonstrate that defendants had knowledge of any hazardous condition prior to the accident.

Under the circumstances, the trial court clearly could find that the real reason for seeking to introduce evidence of remedial measures was to try to show the defendants’ awareness of their own negligence. Accordingly, we cannot say that the trial court abused its discretion in excluding such evidence.

2. Plaintiff also contends that the trial court erred in excluding evidence regarding the subsequent accident at the DOT site. “The relevancy of other occurrences and thus the admissibility of such evidence lies within the sound discretion of the trial court, and may have probative value if the conditions of the other occurrence are substantially similar and may explain the occurrence under examination by the jury.” Reed v. Heffernan, 171 Ga. App. 83, 85 (1) (a) (318 SE2d 700) (1984).

The trial court did not abuse its discretion in excluding evidence of the second accident. The driver in that accident left the road on Ga. 1 north of the intersection with Adams Road, while the accident in this case occurred south of the intersection and outside of the transitional area. Defendants’ expert admitted that the area south of the transitional area was not hazardous and did not require additional pavement markers. Moreover, the driver of the vehicle in the second incident fled the scene, and there was thus no evidence of why he left the roadway. Accordingly, the trial court was authorized to find that the two incidents were not sufficiently similar so as to establish the relevancy of the second accident.

Moreover, as with the evidence of remedial measures, plaintiff has not shown how she was harmed by the trial court’s exclusion of this evidence. The judge was aware of the subsequent accident through an offer of proof, and concluded that it was not substantially similar to the present accident. It thus does not appear that admission of evidence regarding the subsequent accident would have changed the result in this case. Indeed, the judge’s decision was based upon facts peculiar to this case showing that the lack of traffic control devices did not proximately cause the accident. Evidence of the subsequent accident would not have changed the facts relied upon by the judge, and exclusion of such evidence thus did not constitute harmful error.

Decided May 22, 1998.

Mundy & Gammage, John S. Husser, Robert K. Finnell, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, C. Latain Kell, Senior Assistant Attorney General, Susan J. Levy, for appellees.

3. Plaintiff contends that the findings of fact by the trial court were against the greater weight of the evidence. Even if true, that would not be grounds for reversal of the trial court’s judgment, as this Court does not weigh evidence. “In bench trials, the findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses. OCGA § 9-11-52 (a). Moreover, the ‘clearly erroneous’ test is in essence the same as the ‘any evidence’ rule and appellate courts cannot disturb the findings of fact by the trial court if there is any evidence to support them. As the trial court’s findings of fact are supported by evidence in the record, [plaintiff’s] arguments asking this court to interpret the evidence differently from the trial court are to no avail. Accordingly, [plaintiffs enumeration] of error alleging that. . . the judgment is against the weight of the evidence [is] without merit.” (Citation omitted.) Covrig v. Miller, 199 Ga. App. 864, 865 (1) (406 SE2d 239) (1991).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       This second accident was the subject of a separate lawsuit involving substantially the same issues as this case. See Studard v. Dept. of Transp., 219 Ga. App. 643 (466 SE2d 236) (1995).

       We note that this Court affirmed the exclusion of this exact same evidence in Studard, supra, the action arising out of the second accident at the DOT site. The trial court in this case recognized the similarities between the two cases and entered an order continuing this case until we ruled in the Studard appeal.


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    A98A1064.
    ARMSTRONG v. ROYAL LAKES ASSOCIATES, L.P.
    (502 SE2d 758)
   Blackburn, Judge.

On March 15, 1994, James L. Armstrong purchased an unimproved lot in a subdivision developed by Royal Lakes Associates, L.P. Armstrong purchased this lot from Joseph and Helen Cho, who had purchased it from Royal Lakes on September 24, 1990. Armstrong began construction of a residence on the lot in May 1995. During excavation, a large amount of material, such as burned stumps and logs, cans, hydraulic fluid containers, grass and fertilizer bags, and metal strips, was discovered buried on the property. As a result of the presence of this material, Armstrong incurred additional construction expenses, including clearing and refilling the burial pits, resiting the house on a different portion of the lot, relocating the septic tank drain field and installing a pumping station. Armstrong also had to abandon plans to build a swimming pool on the property. Armstrong sued Royal Lakes for negligence, fraud, and breach of warranty, and also sought punitive damages and attorney fees. The trial court granted summary judgment to Royal Lakes, and Armstrong appeals.

1. With respect to Armstrong’s negligence claim, the statute of limitation on an action for damages to realty is four years from the date the right of action accrues. OCGA § 9-3-30. In Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988), the Supreme Court held that the discovery rule exception, under which a cause of action does not accrue until the plaintiff discovers or should have discovered the injury, is not applicable to a claim for damage to realty. The court held that the discovery rule “is confined to cases of bodily injury which develop only over an extended period of time.” (Punctuation omitted.) Id. at 366 (1). Accordingly, the court held that “[a]n action under OCGA § 9-3-30 must be brought within four years of substantial completion.” Id. at 366 (1).

We note that most of the cases involving damage to realty involve the construction of buildings or other improvements to real property. The exclusion of the discovery rule can have a harsh result where unimproved property is involved. Neither OCGA § 9-3-30, nor our Supreme Court holdings, however, recognize any exception for unimproved real property. Therefore, any such distinction must be made by the Supreme Court or the legislature.

In this case, there is no evidence that any construction or building activity was done on or around the lot after 1989, or that the debris was buried on the lot after that time. Accordingly, the limitation period expired by the end of 1993, before Armstrong purchased the property. Having bought the property after the expiration of the limitation period, Armstrong can point to no facts showing that Royal Lakes committed a fraud that debarred or deterred him from bringing an action so as to toll the statute of limitation pursuant to OCGA § 9-3-96. Moreover, Armstrong admits that he has no evidence that Royal Lakes was aware of the burial of debris on the lot. Accordingly, Armstrong’s claim is barred by the statute of limitation.

Armstrong’s contention that OCGA § 9-3-51, and not OCGA § 9-3-30, is the applicable statute of limitation is without merit. OCGA § 9-3-51 (a) provides that no action for injury to property arising out of “any deficiency in the survey or plat, planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property . . . shall be brought . . . more than eight years after substantial completion of such an improvement.”

However, OCGA § 9-3-51 (a) is not a separate statute of limitation, but a statute of ultimate repose. “OCGA § 9-3-51 does not establish an eight-year statute of limitation; it establishes an outside time limit, which commences upon substantial completion of the improvement to the real property, and within which preexisting statutes of limitation continue to operate. Benning Constr. Co. v. Lakeshore Plaza &c., 240 Ga. 426, 428 (241 SE2d 184) [(1977)]; Fort Oglethorpe Assoc. [v. Hails Constr. Co., 196 Ga. App. 663, 665 (396 SE2d 585) (1990)].” (Emphasis omitted.) Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741) (1994). Accordingly, OCGA § 9-3-51 (a) does not extend the limitation period set forth in OCGA § 9-3-30.

We have previously rejected the contention that Mercer, which requires that an action for damage to realty be brought within four years of substantial completion, does not apply to a case in which a statute of ultimate repose is applicable. “The purpose of the statute of repose is to impose an outside limit on the bringing of lawsuits which are otherwise brought within the applicable statutory period after the action has accrued. See OCGA § 9-3-53. The Georgia courts have never interpreted the statute of repose for construction cases as extending the otherwise applicable period of limitation. It is clear from a reading of OCGA § 9-3-53 that the legislature never intended OCGA § 9-3-51 to establish a new eight year statute of limitation in place of the two, four and six years statutes that may be applicable depending on the cause of action alleged. Benning Constr. Co. v. Lakeshore Plaza Enterprises, [supra].” (Punctuation omitted.) Fort Oglethorpe, supra. Since Armstrong failed to bring his claim within the four-year period required by OCGA § 9-3-30, his claim is barred.

Moreover, OCGA § 9-3-51 (a) is not applicable in any event, as this case did not involve a deficiency in the construction of an improvement to real property. See Turner v. Marable-Pirkle, Inc., 238 Ga. 517, 519 (233 SE2d 773) (1977) (statute “is applicable only to ‘an improvement to real property’”). The words “improvement to real property” must be given a commonsense interpretation. Hanna, supra at 652 (3); Mullis v. Southern Co. Svcs., 250 Ga. 90, 93 (4) (296 SE2d 579) (1982). “An improvement, as contemplated by the statute, denotes a fixed alteration to the real estate.” Hanna, supra. “Several factors have arisen as being important to a commonsense analysis of what constitutes an improvement to real property. These factors are (1) is the improvement permanent in nature; (2) does it add to the value of the realty, for the purposes for which it was intended to be used; (3) was it intended by the contracting parties that the ‘improvement’ in question be an improvement to real property or did they intend for it to remain personalty.” Mullis, supra at 94 (4).

The burial of construction debris on an undeveloped lot cannot be considered an “improvement” to real property under any commonsense interpretation of the word. Accordingly, OCGA § 9-3-51 (a) is not applicable to this case.

Decided May 22, 1998.

Philip M. Casto, for appellant.

Stewart, Melvin & Frost, William H. Blalock, Jr., for appellee.

2. The trial court also granted summary judgment on Armstrong’s claims for fraud and breach of warranty. As Armstrong’s enumerations do not encompass these rulings, we will not consider them.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


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    A98A1098.
    WRIGHT v. THE STATE.
    (502 SE2d 756)
   Blackburn, Judge.

A jury convicted Paul Richard Wright of aggravated stalking and making harassing telephone calls. Wright appeals only his conviction for aggravated stalking, raising several enumerations of error. For the reasons set forth below, we affirm.

1. Wright contends the trial court erred in denying his motion for a directed verdict of acquittal and that the evidence adduced at trial was insufficient to support his conviction. “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Wright v. State, 228 Ga. App. 779 (1) (492 SE2d 680) (1997). Viewed in this light, the record reveals these pertinent facts:

When Wright and his family moved to Georgia, they stayed for several weeks with Wright’s niece and her husband, Anita and Bob Bales. After approximately four weeks, the Baleses asked the Wrights to leave. Wright, who was upset at having been “kicked out” started calling the Baleses’ residence, making threats of bodily injury and property damage. On August 29, 1996, Wright called Bob Bales and said: “I will get even, I will blow your . . . head off, I know how to use a gun.” The Baleses reported the calls to the authorities and Wright was arrested and charged with making harassing phone calls. Wright was released pending trial upon the magistrate court’s bond order directing that he “stay away, absolutely, directly or indirectly, by person, telephone, messenger or any other means of communication from Bob Bales.”

During the late evening of December 18, 1996, as the Baleses were unloading Christmas presents from their van, they saw a red 1992 Pontiac Grand Am pass by their home. They could not see who was driving at first, but Bob Bales believed the car was Wright’s. The Baleses watched as the car passed by their home and pulled into a driveway near the end of their dead-end street. After pausing a moment, the driver turned around and began to drive past the Baleses’ residence again, moving very, very slowly. Bob Bales walked to the street and pretended to throw a rock at the car, hoping this would make the driver stop the car, get out, and be seen by witnesses. The ploy worked. When Wright got out of the car, Bob Bales asked him what he was doing on their street. Wright responded that “it was a free country and a free road.” When Bob Bales reminded Wright of the conditions of his bond, Wright said he did not care. When Anita Bales said she would call the police, Wright said to go ahead, that he would be gone by the time the police arrived. The Baleses testified they feared Wright and, consequently, reported the incident to police.

Wright argues the trial court should have directed a verdict of acquittal on the aggravated stalking charge because the state failed to show that Wright contacted Bob Bales without consent in violation of OCGA § 16-5-91 (a). Wright claims Bob Bales was the one who voluntarily contacted him by throwing a rock at his car and then engaging him in conversation. Wright’s argument ignores the fact that Bob Bales’ behavior was a reaction to something Wright had already done: driving down a dead-end street where he had no business to be and passing by the Baleses’ home in a car Bob Bales recognized as Wright’s. That slow drive-by constituted “contact” because people of ordinary intelligence would understand the act to communicate Wright’s contempt for the court’s bond order and, thus, Wright’s implicit intent to continue, or even to carry out, his previous threats to the Baleses. See Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94) (1994) (“‘contact’ is readily understood by people of ordinary intelligence as meaning ‘(t)o get in touch with; communicate with’ ”); Fly v. State, 229 Ga. App. 374, 376 (1) (494 SE2d 95) (1997). The trial court did not err in denying Wright’s motion for a directed verdict. And, the evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find the essential elements of aggravated stalking beyond a reasonable doubt under the standard set forth above. See, e.g., Fly v. State, supra.

2. Wright also argues he was entitled to a directed verdict because of a fatal variance between the allegations of the indictment and the evidence adduced. Wright argues the indictment alleged he “contacted” Bales when, at most, the evidence shows he only “surveilled” him. For the reasons set forth in Division 1 above, this argument is without merit.

Decided May 22, 1998.

Clark & Towne, David E. Clark, Bridgette E. Dawson, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

3. Wright contends the trial court erred in refusing to give his requested charge on the definition of “contact” and in charging, verbatim, the whole of the aggravated stalking statute, OCGA § 16-5-91. Wright, however, failed to preserve any objection to the jury charge because he neither made objection during the charge conference nor reserved the right to raise additional objections on motion for new trial or on appeal. Wright’s counsel stated he had “no exceptions” to the charge. Accordingly, he waived the right to raise these issues on appeal. Smith v. State, 268 Ga. 42, 43 (2) (485 SE2d 189) (1997).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


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    A98A0206.
    SOUTHERN ELECTRONICS DISTRIBUTORS, INC. v. ANDERSON.
    (502 SE2d 257)
   Andrews, Chief Judge.

Southern Electronics Distributors, Inc. (Southern) appeals from the trial court’s dismissal, based on lack of personal jurisdiction, of its action against Anderson on his personal guaranty of a corporate debt.

1. “ ‘(A) defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. (Cits.)’ Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539 (428 SE2d 435) (1993). Tf the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of plaintiff. (Cit.) Further, if a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard. (Cits.)’ Id. at 540.” Habersham Metal Products Co. v. Huntsville Fastener &c., 216 Ga. App. 646 (455 SE2d 356) (1995).

The pleadings and affidavits before us show that Anderson, a resident of Decatur, Alabama, was a principal of Anderson-Smith & Associates, Inc. (ASA), an Alabama corporation. On March 5,1993, in Alabama, Anderson, as principal for ASA, executed a Credit Agreement with Southern, located in Georgia. The agreement was for a credit line on an open account through which ASA would purchase from Southern computer hardware which would be shipped to Alabama. For the 1993 agreement, Anderson signed the following personal guaranty: “[t]o induce Southern Electronics Distributors, Inc. ... to extend credit to Anderson-Smith & Assoc., Inc. . . . pursuant to this Credit Agreement, the undersigned C. A. Anderson hereby absolutely and unconditionally guarantees to Creditor the prompt and full payment when due according to the terms of this Credit Agreement of any and all indebtedness and liability of every kind, nature and character specified in this Credit Agreement, together with all interest thereon and all attorney’s fees, costs, and expenses incurred by Creditor in collection of such indebtedness and liability.”

On January 4, 1994, in Alabama, Anderson signed a second Credit Application with Southern, at Southern’s request. The wording and format of this document were different from the 1993 one. The 1994 document set out the “Agreement to Terms,” which was signed by Anderson as principal for ASA. While it also contained a personal guaranty, Anderson did not sign it.

Beginning on March 25, 1994, and continuing through July 5, 1994, over $45,000 worth of computer hardware was shipped by Southern to ASA in Alabama. In August, Southern sent ASA a demand letter for $45,567. In December 1994, ASA filed bankruptcy under Chapter 11, resulting in Southern’s suit on Anderson’s 1993 guaranty.

Anderson filed his affidavit and denied that he had (1) transacted any business in Georgia except for operating a restaurant/ nightclub here in 1983; (2) appeared in court here; (3) owned any property here; or (4) committed any torts here.

In opposition, Southern filed the affidavit of Aikens, its director of credit. She stated that she was personally aware of two occasions when Anderson visited Southern’s corporate office in Georgia, although no dates were given. During these visits, Aikens stated that Anderson was acting as an officer of ASA and engaged in negotiations to increase the line of credit.

“Due process requires that individuals have ‘fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.’ [Cit.] In evaluating whether a defendant could reasonably expect to be haled into court in a particular forum, courts examine defendant’s contacts with the state, focusing on whether (1) defendant has done some act to avail himself of the law of the forum state; (2) the claim is related to those acts; and (3) the exercise of jurisdiction is reasonable, that is, it does not violate notions of fair play and substantial justice. [Cits.] These three elements do not constitute a due process formula, but are helpful analytical tools which ensure that a defendant is not forced to litigate in a jurisdiction solely as a result of ‘random,’ ‘fortuitous’ or ‘attenuated’ contacts. [Cit.] The first two elements are used to determine whether defendant has established the minimum contacts necessary for the exercise of jurisdiction.” Beasley v. Beasley, 260 Ga. 419, 421 (396 SE2d 222) (1990). See OCGA § 9-10-91.

Here, even construing the two affidavits in favor of Southern, there is no evidence sufficient to establish the required minimum contact. Telephone and mail contact by an out-of-state defendant do not, alone, amount to such contact, nor does signing a contract with an out-of-state person. Pleats, Inc. v. OMSA, Inc., 211 Ga. App. 643, 646 (3) (b) (440 SE2d 214) (1993); Scovill Fasteners, supra; White House, Inc. v. Winkler, 202 Ga. App. 603, 604 (415 SE2d 185) (1992).

Even Aikens’ statement that Anderson visited Southern’s Georgia offices says that he did so as a corporate officer, and there is nothing to indicate any other act by Anderson to avail himself personally of the law of Georgia. Compare Autrey v. UAP/GA &c., 230 Ga. App. 767 (497 SE2d 402) (1998) and Dana Augustine, Inc. v. Parkman, 226 Ga. App. 881 (487 SE2d 697) (1997) with Girard v. Weiss, 160 Ga. App. 295 (287 SE2d 301) (1981).

Drennen v. First Home Savings Bank, 204 Ga. App. 714 (420 SE2d 376) (1992), relied upon by Southern, is factually distinguished by the many more contacts with Georgia which were involved there. Alabama residents individually guaranteed an Alabama corporation’s note for the construction of a motel in Georgia. Drennen traveled to Georgia to purchase the property on which the motel was to be built, and the corporation was then formed to purchase the property from Drennen, with all of the guarantors, including Drennen, being shareholders and three of them officers. The first corporate shareholders’ meeting was held in Georgia, and some of the guarantors visited the Georgia project during construction as well as after for the purpose of managing the business.

We conclude that the trial court’s grant of Anderson’s motion to dismiss was correct.

2. Even if we were to conclude that there were sufficient contacts for jurisdiction over Anderson, there is also another basis upon which judgment should have been entered in favor of Anderson, and a judgment right for any reason will be affirmed. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991); Fetterolf v. State, 223 Ga. App. 744, 747 (6) (478 SE2d 889) (1996).

Although Aikens’ affidavit opines that the 1994 Credit Application containing the terms of agreement between the parties was intended only to update ASA’s trade references and “was not intended to replace the Credit Application of March 16, 1993,” this is not determinative of the effect of the second document because “[p]arol evidence is inadmissible to add to, take from, or vary a written contract.” OCGA § 13-2-2 (1).

Decided April 14, 1998

Reconsideration denied May 26, 1998.

Small, White & Marani, Karen F. White, for appellant.

Harman, Owen, Saunders & Sweeney, Merritt M. Wofford, for appellee.

Disregarding that opinion, as we must, and examining the two agreements, we conclude that the 1994 contract covered the shipments made after its signing, this being the only reasonable interpretation of the two documents. Puccini v. Thomas & Howard Co., 228 Ga. App. 537 (492 SE2d 297) (1997).

Even considering the 1993 guaranty in light of the fact that a guarantor may consent to future unilateral changes by the obligee or may agree that the guaranty may be a continuing one, there is nothing in the language of this guaranty which does so. Steiner v. Handler, 229 Ga. App. 833, 835 (3) (495 SE2d 132) (1997); Lothridge v. First Nat. Bank &c., 217 Ga. App. 711 (458 SE2d 887) (1995).

Therefore, Anderson was entitled to summary judgment on this ground.

Judgment affirmed.

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