text:
    A91A1071.
    SCOTT v. THE STATE.
    (410 SE2d 362)
   Pope, Judge.

Defendant appeals his conviction and sentence for the offenses of possession with intent to distribute cocaine and possession of marijuana. Defendant filed a motion to suppress the contraband seized in the case on the basis that because no probable cause existed to justify his arrest, the search incident to arrest was illegal. The trial court denied that motion. Defendant then entered a plea of not guilty and agreed to a stipulated bench trial.

1. Defendant argues insufficient evidence exists to warrant his conviction, because the State did not submit any evidence that the substances seized in this case were controlled substances. The State argues that defendant should be precluded from raising this argument based upon the conduct of defense counsel. We agree. When the case was called for the stipulated bench trial the following conversation took place among prosecuting attorney Mrs. Macnamara, defense attorney Mrs. Mull, and the trial judge:

“MRS. MACNAMARA: Your Honor, the only other case is Case No. 17 on Robert Lewis Scott.

“Mr. Scott is here now. My understanding of the posture we’re in now is, Mrs. Mull has asked to have a stipulated bench trial on this case using the evidence that has been heard on the motion to suppress, and the purpose, as I understand, of doing that is to preserve the question of the motion to suppress on appeal.

“So, as I understand, what we will be doing today is both the state and the defendant asking Your Honor to simply find the defendant guilty on these charges in a bench trial, thereby preserving the motion to suppress as an appellate issue, and I have done this in this fashion before, believe it can be done in this way, and the state has no opposition to proceeding in that fashion.

“THE COURT: Mrs. Mull, is that your statement?

“MRS. MULL: Our statement is that what we would like to do is to have a stipulated bench trial. I believe the state would offer as evidence what the police officer said, and we would have no further evidence to put forward, and we would take whatever Your Honor’s verdict is in that case and thereby indeed preserve the right to appeal should that be Mr. Scott’s eventual desire.

“THE COURT: All right. Based upon the stipulation, I will find that Mr. Scott did commit the two criminal acts he’s charged with in the indictment, the violation of the Georgia Controlled Substance Act, possession of marijuana and possession of cocaine with intent to distribute.”

It is obvious from a review of the record that the defense attorney led both the triál judge and the prosecuting attorney to think that the only issue contested by the defendant was whether the evidence, obtained by the search of defendant, should be suppressed. The defense attorney made it clear to both the prosecuting attorney and the trial judge that her main goal in defending this case was to preserve for appeal the denial of defendant’s motion to suppress. Defense counsel led the trial court to believe she conceded that the State had otherwise met its burden of proof. Defendant thus waived his right to challenge the sufficiency of the evidence of the elements of the crimes charged.

2. Defendant also argues insufficient probable cause existed to arrest him, and therefore, the search incident to arrest was illegal. The only witness at the motion to suppress hearing was the arresting officer who testified the police department had received a report that two black males were selling cocaine from a white vehicle at a certain shopping center, which was known by police as a drug area. The arresting officer and three other units responded to that report. The arresting officer parked at a nearby apartment complex and approached the shopping center on foot. When the officer walked through the breezeway of the shopping center, he observed the defendant bending over and placing something in a trash container. The officer further testified that as the defendant walked away from the trash container, defendant looked in the direction of the other police units that had responded to the call.

When the officer walked by the trash container, he saw a “Ziploc bag containing several smaller baggies that were a white substance” at the top of the trash container. The officer then began to call to the defendant, who responded on the third call. The officer asked him for identification, which the defendant was unable to produce. During the defendant’s search for identification, however, he became nervous and pulled a small manilla envelope from his jacket pocket. The officer recognized the type envelope removed from his jacket pocket as an envelope often used for marijuana. The officer then placed defendant under arrest and during the search incident to arrest discovered a green leafy substance in the small manilla envelope that defendant had earlier removed from his pocket.

Decided September 10, 1991.

Corinne M. Mull, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

We conclude that these circumstances were sufficient to establish probable cause for the arresting officer to believe that defendant possessed a controlled substance. See Scott v. State, 193 Ga. App. 74, 75 (387 SE2d 31) (1989); Green v. State, 168 Ga. App. 558 (309 SE2d 687) (1983). Therefore, the search incident to arrest was proper. The cases relied upon by defendant, State v. Casey, 185 Ga. App. 726 (365 SE2d 878) (1988) and Vincent v. State, 178 Ga. App. 199 (342 SE2d 382) (1986) are factually inapposite to this case and do not support defendant’s position. The trial court properly denied the defendant’s motion to suppress.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A1195.
    HOWARD v. THE STATE.
    (410 SE2d 782)
   Sognier, Chief Judge.

Richard E. Howard was convicted by a jury of rape and two counts of armed robbery, and he appeals from the judgment and sentence entered on those convictions.

1. Appellant first enumerates the general grounds. Construed to support the jury’s verdict, the evidence at trial showed that on the evening of March 26, 1989, appellant knocked at the door of the home where Maude Cason lived with her two daughters, two grandchildren, and another woman, S. M. Cason was in the back bedroom watching television with her young grandchildren, and S. M. admitted appellant, who had identified himself as “Kenny,” a friend of Cason’s daughter. Appellant asked to use the telephone because his car had broken down, and S. M. permitted him to do so. After completing his call in the living room, however, appellant pulled a gun and held it to S. M.’s face, then marched her to Cason’s bedroom, where he threatened the lives of Cason and the grandchildren and demanded all of Cason’s money. After Cason gave him her wallet containing $60, appellant became enraged because Cason did not have more money. He forced S. M. to undress and then raped her on Cason’s bed while Cason and her four-year-old granddaughter were forced to sit on the floor and avert their eyes. Cason’s infant grandson was on the bed during the rape. Appellant finally tore off S. M.’s gold necklace and several rings and left.

Appellant contends the State failed to show that the robbery of S. M. was accomplished by use of an offensive weapon or replica thereof, which is a necessary element of armed robbery. See OCGA § 16-8-41 (a). The indictment charged appellant with committing armed robbery “by the use of a gun, the same being an offensive weapon,” and appellant argues that S. M.’s testimony established that he robbed her in the living room before he pulled the gun, forced her into the back bedroom, and raped her. Although that is a possible, albeit strained, interpretation of quotes from S. M.’s trial testimony, excerpted by appellant in his brief, when they are viewed in isolation, a careful review of S. M.’s entire testimony reveals no indication that events transpired in the sequence suggested by appellant, and Cason testified that she witnessed appellant snatch the chains off S. M.’s neck after the rape, “just as he reached . . . the door.”

S. M.’s testimony quoted by appellant was the direct response to questioning regarding whether she was aware of the gun at the moment she was robbed. Although S. M.’s response was that at the moment she was robbed she did not see the gun, “ ‘a conviction for armed robbery may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred.’ . . . [Cit.]” Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987). Here, S. M. testified that appellant held the gun to her face in the living room, forced her to the back of the house at gunpoint and threatened her, which led her to believe that because she and the other victims had all seen appellant’s face “maybe he would kill us [so we would] not be able to identify him.” Cason testified that when appellant entered the bedroom with S. M., she could see “something underneath his shirt” in the shape of a gun. The evidence presented at trial thus authorized the jury to conclude that the robbery of S. M. was accomplished well after she became aware of the presence of the gun; that at least the shape of the gun was visible, even though S. M. did not actually see it at the moment she was robbed; and that the robbery of S. M. was accomplished while she was under “a reasonable apprehension . . . that an offensive weapon [was] being used.” Moody v. State, 258 Ga. 818, 820 (1) (375 SE2d 30) (1989). Accordingly, we find the evidence presented at trial was sufficient to authorize the jury to convict appellant of the armed robbery of S. M. under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Moody, supra at 820 (1), 821-822 (5).

Decided September 10, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert W. Houman, Nelly F. Withers, Assistant District Attorneys, for appellee.

2. Appellant contends the trial court erred when it allowed the State to present, over objection, evidence of appellant’s two prior convictions. The trial transcript reveals that appellant volunteered the information about his prior incarceration when he testified, in response to a question on cross-examination about whether he had worked since his last job, as a drug counselor in Washington D. C. in 1978, “[n]o, sir, I have not worked since then. I do — did some odd jobs. I did some time.” Appellant was then asked what he meant by that, and he testified that he had been in the “Federal Correction Institute in Ashland, Kentucky 1978 and 1982,” and upon further questioning revealed that it was for “[b]urglarizing.” The State was not permitted to cross-examine appellant about another crime, a conviction for violation of the Georgia Controlled Substances Act, but certified copies of both convictions were entered into evidence.

It is clear that by admitting prior criminal conduct, appellant “raised an issue which may be fully explored by the State on cross-examination. [Cit.]” Jones v. State, 257 Ga. 753, 759 (1) (b) (363 SE2d 529) (1988). Here, appellant’s admission that he had been incarcerated entitled the State to explore the burglary, the crime for which he was incarcerated. Even assuming, as contended by appellant, that admission of the certified copy of appellant’s drug conviction was error because appellant’s sentence was probated and he was not incarcerated for that offense, the evidence of appellant’s guilt in this case was ample and thus it is highly probable that the introduction of the certified copy of that conviction did not contribute to the jury’s verdict. In the context of this case, therefore, any error in admitting the certified copy of appellant’s drug conviction was not harmful, and reversal is not required. Hargrove v. State, 188 Ga. App. 336, 338 (373 SE2d 44) (1988).

Judgment affirmed.

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


text:
    A91A1209.
    SUNBELT SPECIALTIES et al. v. KEITH.
    (410 SE2d 364)
   Sognier, Chief Judge.

Walter Keith was injured in the course of his employment with Sunbelt Specialties and was awarded total disability income benefits under the Workers’ Compensation Act, OCGA § 34-9-1 et seq. Sunbelt and its insurer subsequently sought to suspend payment of benefits to Keith on the basis that he had experienced a change of condition for the better. OCGA § 34-9-104. The administrative law judge ruled in favor of the employer, and the State Board of Workers’ Compensation adopted the ALJ’s findings and ruling. The Superior Court of Camden County remanded the case for consideration of an issue the judge found had not been evaluated on the record, and we granted the application for discretionary review filed by Sunbelt and its insurer.

1. We find no merit in appellants’ contention that the superior court’s order is null and void because it was not entered within 20 days of the hearing as required by OCGA § 34-9-105 (b). Although the date stamped on the order by the clerk’s office indicates that the order was filed untimely, the superior court corrected the record to reflect that the order was filed the day it was rendered, which was within the 20 day statutory period. The superior court has the power to amend its own records so as to make them conform to the truth. OCGA § 15-1-3 (6).

2. Appellants contend the superior court erred by failing to affirm the Board’s award. The record reveals that in 1966, appellee had spinal fusion surgery. Appellee testified that he had never had any problem with his back from the time of the spinal fusion surgery until March 19, 1988 when he injured his back picking up some heavy construction materials, and that since the injury he has been totally unable to do any work. The doctor who conducted an independent medical examination of appellee 21 months after the injury opined that appellee’s problems stemmed from the preexisting spinal fusion (which the doctor estimated resulted in a 20 percent impairment to appellee’s body as a whole) and concluded that although appellee “might” have some additional loss of motion associated with the March 19 injury, the physical impairment from this lost range of motion would not exceed five percent to the body as a whole and “might not be permanent.”

The superior court found that the Board and ALJ had failed to evaluate on the record the effect of appellee’s March 19 injury on his preexisting injury because “[t]he omission from the [ALJ’s] decision of any discussion of the impact an injury causing an impairment of approximately 5 % would have on the work ability of a person with a pre-existing impairment estimated at 20 % casts doubt on whether that critical issue was considered.” However, the record reveals that after summarizing the testimony before him and further finding appellee’s credibility questionable (for reasons properly set forth in the ruling), the ALJ found that “any disability [appellee] may be presently experiencing is related solely to conditions which preexisted” the March 19 injury, that appellee failed to produce any medical evidence which directly related his current disability to the March 19 injury, “nor did [appellee] produce any direct medical evidence which established that his [March 19 injury] aggravated his preexisting back condition.” It is thus apparent that based on appellee’s lack of credibility and the inadequacy of appellee’s medical evidence, the ALJ determined that appellee was suffering from no impairment as a result of the March 19 injury. Applying the any evidence rule, see generally Harden v. Southeastern Meat Co., 196 Ga. App. 22, 24 (1) (395 SE2d 273) (1990), we find the ALJ’s determination on this matter is supported by the record. Given that determination, there was no reason for the ALJ or the Board to reach the issue raised by the superior court. Accordingly, the superior court erred by remanding this case.

Decided September 10, 1991.

Drew, Eckl & Farnham, John A. Ferguson, Jr., Nicole D. Tifverman, for appellants.

T. William Veach, for appellee.

Judgment reversed.

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


text:
    A91A1263, A91A1264.
    ROBENOLT v. CHRYSLER FINANCIAL SERVICES CORPORATION (two cases).
    (410 SE2d 365)
   Sognier, Chief Judge.

Chrysler Financial Services Corporation filed an action against Nancy Robenolt, seeking to foreclose its security interest in Robenolt’s mobile home. The trial court granted a writ of possession to Chrysler, and in Case No. A91A1263 Robenolt appeals from the denial of her motion to vacate and set aside the judgment granting the writ, or in the alternative, for a new trial. In Case No. A91A1264, Robenolt appeals from the trial court’s subsequent order requiring her to make payments on the underlying debt pending appeal. The two appeals are consolidated for review.

1. OCGA § 5-6-35 (a) (8) provides that appeals from “orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment” are discretionary, requiring application for leave to appeal. In State Farm Mut. Auto. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39) (1989), the Supreme Court held that this legislative requirement is mandatory and may not be circumvented by filing a direct appeal from the denial of a motion for new trial which includes enumerations pertaining also to the denial of a motion to set aside. The holding in Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980) does not apply in those circumstances, Yancey, supra at n. 1, and any enumerations in such a direct appeal contending error in the denial of the motion to set aside the judgment must be dismissed for failure to follow proper appellate procedure. Accordingly, the portion of Case No. A91A1263 pertaining to the denial of appellant’s motion to vacate and set aside the trial court’s judgment is dismissed.

2. In her second enumeration of error, appellant contends the trial court erred by denying her motion for new trial because the writ of possession was granted without holding a trial as required by OCGA § 44-14-233 (c). The record reveals that a rule nisi was scheduled on the petition for writ of possession, and the parties agree that the original hearing was continued by consent. In her brief on appeal, appellant contends the rescheduled evidentiary hearing did not take place, while appellee, in its brief, states that the hearing was held at the place and time scheduled but that appellant failed to appear. As the parties do not agree on what transpired, and the record does not indicate affirmatively whether a hearing was held and, if so, whether appellant was present, we must assume the trial court acted properly. “ ‘The trial judge is presumed to know the law (cit.) and presumed to “faithfully and lawfully (perform) the duties devolving upon [him] by law.” [Cit.]’ [Cits.] . . . ‘(T)his court will not presume the trial court committed error where that fact does not affirmatively appear.’ [Cits.]” Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (3) (399 SE2d 712) (1990). Accordingly, the trial court’s denial of appellant’s motion for a new trial is affirmed.

3. Appellant maintains that Rule 3.2 of the Uniform Superior Court Rules was not complied with in that the various rulings in the case were not made by the same judge. We find no merit in this enumeration. First, Rule 3.2 provides that “[w]hen practical, all actions involving substantially the same parties, or substantially the same subject matter, or substantially the same factual issues, whether pending simultaneously or not, shall be assigned to the same judge.” (Emphasis supplied.) The emphasized language makes it apparent that the rule was intended to apply to multiple cases with a common factor, rather than to different hearings in the same case, and thus does not apply here. Moreover, in non-metropolitan areas, where the circuit’s judges preside over cases in several counties on different dates, as was the case here, it is often unfeasible and unwise for reasons of judicial economy for a single judge to preside over all hearings in a single case. We decline to hold that the USCR prohibits the common practice of assigning a particular judge to hear all motions on a designated “motions day,” particularly given that USCR 2.5 defines the term “assigned judge” as “the judge to whom an action is assigned in accordance with these rules; or, if the context permits, in circuits having approved local rules permitting a general calendaring system, to the trial judge responsible for the matter at any particular time.”

4. Appellant’s remaining enumerations pertain to Case No. A91A1264, in which appellant complains of the trial court’s order compelling her to make payments on the rental contract pending appeal.

(a) Appellant contends the trial court was without jurisdiction to order her to pay rent into the registry of the court pending appeal because that order was entered after appellant had filed a notice of appeal. Even assuming appellant is correct, however, she would be required to make those payments pursuant to OCGA § 44-14-235, because that statute authorizes a defendant in a personal property foreclosure action to remain in possession of the secured property pending appeal of the grant of a writ of possession to the plaintiff “provided that the defendant complies with all of the provisions of Code Section 44-14-234 [which requires rent payments to be made into the registry of the court] until the issue has been finally determined on appeal.” Accordingly, appellant has shown no harm, and “‘[i]t is an old and sound rule that error to be reversible must be harmful.’ . . . [Cit.]” Ingram v. Peterson, 196 Ga. App. 888, 891 (397 SE2d 141) (1990).

(b) Since appellant claims no amount is due under the contract, we agree with appellant that pending final resolution on appeal, pursuant to OCGA § 44-14-234 (5), as they become due payments should be made into the registry of the court and held in the court registry, rather than being made to appellee, as the trial court directed in its order.

5. Appellee’s motion for a frivolous appeal penalty is denied.

Judgment affirmed in part and dismissed in part in Case No. A91A1263. Judgment affirmed with direction in Case No. A91A1264.

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

Decided September 10, 1991.

J. Laddie Boatright, for appellant.

Mark C. Walker, Edward B. Claxton III, for appellee.


author: McMurray, Presiding Judge.

text:
    A91A1287.
    COOLEY v. THE STATE.
    (410 SE2d 453)
   McMurray, Presiding Judge.

Defendant Cooley appeals his conviction of the offenses of rape, kidnapping with bodily injury, and robbery. Held:

1. Defendant’s first enumeration of error raises the sufficiency of the evidence to authorize defendant’s conviction on each charge. The evidence viewed in the light most favorable to upholding the verdict shows that the victim was staying temporarily with a friend, Acker. When the victim returned to Acker’s apartment around 11:30 p.m., she found defendant present. After a conversation with the victim and defendant, Acker indicated that he was ready to go to sleep. The victim and defendant left the apartment at that time and went to the nearby apartment of defendant’s mother. Defendant became embroiled in an argument with family members and the victim returned to Acker’s apartment. Shortly thereafter, defendant returned to Acker’s apartment and accused the victim of having taken some money from him. An argument began between the two and as it escalated Acker asked them to go outside. The victim and defendant continued to argue as they walked back to the vicinity of the apartment of defendant’s mother. Defendant insisted that the victim proceed further and she refused at which point defendant knocked the victim unconscious causing her to suffer a broken tooth and various cuts and scratches about the face. The victim regained consciousness in a vacant apartment near defendant’s mother’s apartment; she had been disrobed. Defendant was lying on the victim as she regained consciousness and he proceeded by forcibly overcoming her resistance to have carnal knowledge of her. Afterwards, as the victim was fleeing the scene, defendant chased her down on the street and forcibly took her handbag from her.

Although defendant testified as to another account of the incident including that the sexual intercourse was consensual, the determination of credibility and resolution of conflicts in the evidence are for the jury. This Court does not reweigh the evidence but only determines its legal sufficiency. Holcomb v. State, 198 Ga. App. 547 (1) (402 SE2d 520). The evidence is sufficient to authorize any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hunnicutt v. State, 198 Ga. App. 572, 575 (402 SE2d 534).

Decided September 10, 1991.

W. Edward Nethery, John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Nelly F. Withers, Assistant District Attorneys, for appellee.

2. Defendant contends the trial court erred by admitting evidence of a similar transaction, a previous rape which like the crime at issue occurred late at night after defendant had been drinking and using marijuana. “In criminal cases, the rule admitting evidence of similar crimes is an exception to the general rule against prejudicially putting a defendant’s character in issue. Millwood v. State, 164 Ga. App. 699 (296 SE2d 239). But where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact, it is properly admitted. Hayes v. State, 175 Ga. App. 135, 137 (332 SE2d 917); McCarty v. State, 165 Ga. App. 241, 243 (299 SE2d 95). However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged. Davis v. State, 249 Ga. 309, 311 (290 SE2d 273).” Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270). Both of the conditions prerequisite to the admission of the evidence at issue were satisfied. Based on these similarities there was no error in the trial court’s admission of this evidence. Colquitt v. State, 196 Ga. App. 817, 818 (2) (397 SE2d 164).

3. The trial court did not err in curtailing the cross-examination of a witness who was the victim in the similar transaction crime. The witness had already testified that she was not using any drugs on the night of the similar transaction crime, that no one present at that incident was smoking crack cocaine and that she was familiar enough with cocaine to recognize when others used it. It was within the trial court’s discretion in controlling cross-examination to sustain the State’s objection to an inquiry as to whether she had ever used cocaine since such evidence was neither relevant nor material. Williamson v. State, 186 Ga. App. 589, 590 (2) (367 SE2d 863).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Sognxer, Chief Judge.

text:
    A91A1398.
    In the Interest of J. M. C., a child.
    (410 SE2d 368)
   Sognxer, Chief Judge.

The mother of J. M. C. appeals from the order of the Juvenile Court of Hall County terminating her parental rights.

The record reveals that appellant has abused alcohol and drugs for many years and has a history of convictions for shoplifting and drug offenses. She has five children, all of whom have different biological fathers. DFCS obtained legal custody of J. M. C., who was born on May 21, 1983 and was seven years old at the time of the hearing, at birth. J. M. C. remained in DFCS custody until the age of 33 months, then was returned to appellant’s custody until October 1989, when appellant was incarcerated, and has been in foster care since. J. M. C.’s father voluntarily surrendered his parental rights in 1983.

Shortly after appellant was released from prison in December of 1989, her DFCS caseworker prepared and discussed with her a plan for reunification with J. M. C. and ensuring the continuation of her parental rights in the child. The plan called for the achievement of several goals, including the requirements that appellant stay drug and alcohol free; receive treatment for drug abuse for at least six months; visit regularly with the child; find stable housing; and stay out of trouble. The record shows appellant did not follow this plan.

Appellant lived at five different addresses during the time between her release from prison and the hearing on the DFCS petition to terminate her parental rights. Although her visits with J. M. C. were regular at first, they became sporadic and then ceased. Appellant obtained no consistent or verifiable treatment for her substance abuse, and while making a home visit in August 1990 appellant’s probation officer found drug paraphernalia in appellant’s bedroom. In lieu of incarceration for probation violation, appellant was ordered to attend a one year residential drug and alcohol abuse treatment program, which she was still attending at the time of this hearing.

Social workers testified that J. M. C. resisted visitation with his mother, and usually exhibited behavior problems both before and after visits. During one visit, J. M. C. was observed using profanity, which appellant’s husband encouraged. J. M. C. suffers from attention deficit disorder as well as physical problems, and his increasingly destructive and violent behavior necessitated his removal by DFCS from one foster care placement at the request of the foster family.

As correctly noted by the trial court, the decision to terminate parental rights is a two step process. First, the court must determine “whether there is present clear and convincing evidence of parental misconduct or inability as provided in [OCGA § 15-11-81 (b)].” OCGA § 15-11-81 (a). If so, “the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” Id.; see In the Interest of A. T., 187 Ga. App. 299, 301 (2) (370 SE2d 48) (1988). If parental rights have been terminated by the trial court, our standard of review on appeal “ ‘is whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. (Cit.)’ [Cit.]” In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666) (1988).

The term “parental misconduct or inability” is defined by statute: “The court determines parental misconduct or inability by finding that . . . [t]he child is a deprived child, as . . . defined in [OCGA §] 15-11-2; . . . [t]he lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; . . . [s]uch cause of deprivation is likely to continue or will not likely be remedied; and . . . [t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A). No question exists in the case sub judice that J. M. C. is deprived, having been declared so as early as birth, and given the circumstances thus far in his life. No question exists as well that continued deprivation is likely to cause serious harm,’ or that the deprivation has been caused by appellant’s lack of proper parental care and control, the record being replete with evidence of chronic drug and alcohol abuse resulting in incarceration and consequent neglect of J. M. C., as well as appellant’s failure to comply with the plan for reuniting her with her child. See OCGA § 15-11-81 (b) (4) (C) (iii).

Appellant contends that her recent entry into a treatment program and the testimony of Marilyn Davis, the director of the treatment facility in which appellant is in residence, that she has seen “a significant change” in appellant, render it unlikely that the deprivation of J. M. C. will continue. However, the trial court noted that it had relied in the past on appellant’s previous promises to change, but in those instances the change had not materialized. “[T]he past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. [Cits.]” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987). Unlike the parent in In re N. F. R., 179 Ga. App. 346, 347-349 (2) (346 SE2d 121) (1986), who demonstrated significant progress in overcoming her prior substance abuse problems and had obtained permanent employment and stable housing, appellant had only temporary employment, had been drug free only a short time, had been in drug treatment only three months, and faced the prospect of many more months in residential treatment which required absence from her children. Based on the evidence of appellant’s past behavior and the length of time the problem had existed, we find that a rational factfinder could have found by clear and convincing evidence that the conditions of J. M. C.’s deprivation were likely to continue.

Decided September 10, 1991.

Summer & Summer, Daniel A. Summer, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Charles W. Smith, Jr., Special Assistant Attorney General, Margot M. Cairnes, Staff Attorney, for appellee.

In considering the child’s best interest, the trial court may consider the child’s need for a stable home situation and the detrimental effects of prolonged foster care. In re G. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987). In this case, citing the evidence presented of increasing harm to the child, his need for bonding and permanence, the lack of alternatives to termination of appellant’s rights other than keeping J. M. C. in foster care, and the effects of “foster [care] drift,” the trial court refused to “pay mere ‘lip service’ to [its] grave obligation [to protect the child] by preserving in legal fiction [an] already harmful and deteriorated parent/child relationship” and subjecting the child to “the likelihood not only of continuing emotional harm, but” also of potential danger. The trial court’s decision was supported by clear and convincing evidence, and we affirm. See generally In the Interest of R. L. H., supra.

Judgment affirmed.

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


text:
    A91A1401.
    LINCOLN NATIONAL LIFE INSURANCE COMPANY v. DAVENPORT.
    (410 SE2d 370)
   McMurray, Presiding Judge.

Defendant the Lincoln National Life Insurance Company sold a disability insurance policy to plaintiff Davenport. The policy contained an exclusion of coverage where disability was caused by injury to the spine. Plaintiff was in an auto accident and an initial report indicated a spinal injury. Defendant withheld payment, on plaintiff’s claim under the policy, contending that plaintiff’s disability, if any, was caused by a spinal injury. Plaintiff filed this action seeking to recover disability benefits along with penalties and attorney fees pursuant to OCGA § 33-4-6. The complaint was amended to add a second count setting forth claims for conversion; intentional infliction of emotional distress; and, expenses of litigation pursuant to OCGA § 13-6-11.

Defendant moved to dismiss plaintiff’s second count for failure to state a claim upon which relief can be granted. The superior court denied the motion to dismiss holding that plaintiff’s claim for emotional distress is viable. We granted defendant’s application for interlocutory review of the denial of its motion to dismiss. Held:

A motion to dismiss for failure to state a claim should be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of the claim. State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (2) (372 SE2d 276). See also Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383).

Contrary to plaintiff’s assertion, Count 2 of the complaint fails to state a claim for conversion. Plaintiff “is not seeking to recover some specific money, either in certain bills or coins to which she had title, but instead seeks to recover a certain amount of money generally. . . . Thus, this is not such a case for which a cause of action for conversion was intended. See Cooke v. Bryant, 103 Ga. 727 (30 SE 435) (1898).” Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 751 (1) (365 SE2d 494).

Nor may plaintiff recover for intentional infliction of emotional distress. Plaintiff alleges that the emotional distress was inflicted when defendant disregarded medical opinions which supported her claim and denied benefits under the policy. An insurer’s failure to pay benefits under an insurance policy does not, as a matter of law, rise to the level of such outrageousness requisite to a cause of action for intentional infliction of emotional distress. Bekele v. Ryals, 177 Ga. App. 445, 446 (339 SE2d 655).

Plaintiff’s claim in Count 1 for penalties and attorney fees under OCGA § 33-4-6 is her exclusive remedy for any failure of defendant to pay benefits within 60 days of plaintiff’s demand. McCall v. Allstate Ins. Co., 251 Ga. 869, 871 (2), 872 (310 SE2d 513). Additional damages to compensate plaintiff for expenses of litigation are not recoverable pursuant to OCGA § 13-6-11 unless other elements of damages are recoverable. Connell v. Houser, 189 Ga. App. 158, 160 (5) (375 SE2d 136); Basic Four Corp. v. Parker, 158 Ga. App. 117, 120 (2), 121 (279 SE2d 241). Since plaintiff’s only viable claim for damages is that stated in Count 1 and predicated on the defendant’s failure to pay benefits under the policy within 60 days of demand, there is no claim for damages that will support an award under OCGA § 13-6-11.

Plaintiff would not be entitled to relief under any state of facts that could be proven in support of Count 2. Therefore, the superior court erred in denying defendant’s motion to dismiss Count 2 of plaintiff’s complaint.

Decided September 10, 1991.

Carter & Ansley, Ben Kingree III, Rebecca I. Jones, for appellant.

Donald B. Walker, for appellee.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


author: Carley, Judge.

text:
    A90A0849.
    BOSWELL v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (410 SE2d 829)
    Decided September 12, 1991.

      James Booker, for appellant.

      Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Stephanie L. Scheier, Michael E. Fisher, for appellee.

      Salem & Wong, Alvin T. Wong, Beltran & Buckley, Frank J. Beltran, William Q. Bird, amici curiae.
   Carley, Judge.

In Boswell v. MARTA, 196 Ga. App. 902 (397 SE2d 165) (1990), we held that appellee-defendant Metropolitan Atlanta Rapid Transit Authority (MARTA) was not immune from liability for punitive damages because the legislation whereby MARTA had been created contained “ ‘a clear, complete and absolute waiver of [any] governmental immunity from tort liability.’ ” On certiorari, however, the Supreme Court reversed, concluding that, “as a matter of law, an award of punitive damages against MARTA would violate public policy. . . .” Metropolitan Atlanta Rapid Transit Auth. v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991). Accordingly, our original judgment is vacated, the judgment of the Supreme Court is made the judgment of this court and the judgment of the trial court is hereby affirmed.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A90A1578.
    HARRIS v. THE STATE.
    (410 SE2d 830)
   Carley, Judge.

In Harris v. State, 198 Ga. App. 503 (402 SE2d 62) (1991), we affirmed the judgment of the lower court. On certiorari, the Supreme Court reversed the judgment of this Court. Harris v. State, 261 Ga. 386 (405 SE2d 482) (1991). Accordingly, our prior judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgments of conviction that were entered in the instant case are reversed.

Decided September 12, 1991.

Hudson & Solomon, James D. Hudson, for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Judgments reversed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A0960.
    MARETT v. PROFESSIONAL INSURANCE CAREERS, INC.
    (410 SE2d 373)
   Sognier, Chief Judge.

Professional Insurance Careers, Inc. brought suit against William W. Marett, Sam Foreman, Harry Butler, and National Trust Fire Insurance Company to recover a fee allegedly owed under an executive recruiting contract. The trial court directed a verdict in favor of Butler and Foreman, and the jury returned a verdict in favor of National Trust and against Marett individually. Marett appeals.

The facts were sharply disputed at trial on the crucial issues of whether a contract existed between appellee and any of the defendants; whether the executive recruit was actually employed by the defendants; and whether appellant was individually liable either because he contracted with appellee in his individual capacity or because he disregarded the corporate form so as to justify piercing the corporate veil. Lee Richards, appellee’s president, testified that appellee was engaged in the business of providing executive search services to the insurance industry. Evidence was adduced that NTFI Holdings, Inc. (hereinafter the “holding company”), a Tennessee corporation not a party to this litigation, was incorporated on January 5, 1987 by appellant and his co-defendants Butler and Foreman (hereinafter the “investors”) for the purpose of acquiring the stock of defendant National Trust Fire Insurance Company (hereinafter the “insurance company”). Richards testified that in early 1987 he learned of this purchase of the insurance company from an accountant who was advising the holding company, and that the accountant informed him the investors intended to hire a chief executive officer (“CEO”) to run the insurance company. Richards then sent appellant a letter and accompanying documentation explaining the services provided by appellee and the fee structure used.

As a result of this solicitation, Richards testified, he met with appellant on May 15, 1987 to discuss the insurance company’s employment needs. Richards stated that he offered appellee’s services to locate a suitable CEO and that appellant orally accepted this offer. On the question whether this oral contract was entered into by appellant individually or by the holding company or the insurance company, Richards testified variously that “I don’t really know who the client was”; that “[appellant] was my client”; that “I understood my client to be [appellant], representing the other two venture partners”; and that when he filled out appellee’s standard “search assignment form” during this meeting, he wrote “Marett Properties” (an entity not involved in this litigation) and “[the holding company]” in the box labeled “client.” He testified that he mailed subsequent correspondence to appellant at the Marett Properties address, although he did acknowledge that Marett Properties probably was not the client since it was not in the insurance business.

Richards testified further that he referred Herbert Sands to appellant in 1987, that Sands was employed by the insurance company in May 1988 at a base salary of $150,000, and that appellee’s ensuing invoices to appellant for a fee of $45,000 for procuring Sands’s services were not paid. Sands testified by deposition that he considered himself to have been employed by the insurance company as president and CEO as of May 16, 1988, and that he resigned his former position and relocated to Atlanta to begin work. He stated that he refused to sign the employment contract offered by the insurance company until the investors obtained adequate funding, and that he resigned the CEO position in late August because of the continued lack of capitalization. He deposed further that his first paycheck was issued by Marett Properties and that all subsequent paychecks he received were written on the insurance company’s payroll account, which he set up as part of the performance of his duties as CEO.

Appellant testified that the investors’ desire to enter the property and casualty insurance business led to their purchase of the insurance company, which he described as a shell corporation with no outstanding policies, because it was already licensed to do business as an insurer. He testified that because of the way the purchase was financed, the insurance company had a negative net worth after the acquisition. He explained that the investors’ plan was to seek additional investors to contribute $5,000,000 in capital so that the company could begin writing insurance policies, but that the holding company eventually sold the insurance company because of its inability to obtain this necessary capital. Appellant testified further that he was a principal in 27 corporations and partnerships, many of which were organized for tax purposes and operated out of the same office. He stated that he frequently wrote paychecks for the employees of these various entities from the account of one of the corporations and then reimbursed the account with funds from the other entities.

With regard to liability for appellee’s fee for locating Sands, appellant acknowledged meeting with Richards and agreeing to pay a fee if appellee found an acceptable candidate for the CEO position, but testified that at all times he acted on behalf of the holding company, not individually. He stated that Sands was never employed as CEO because he failed to execute the employment contract and that the insurance company paid Sands only as a consultant. Appellant also denied having agreed to the fee structure claimed by appellee.

1. Appellant contends the trial court erred by denying his motions for directed verdict and for judgment n.o.v. made on the ground that the evidence failed to justify piercing the corporate veil of the holding company or otherwise establish his individual liability.

(a) We first address appellee’s contention that this enumeration cannot be considered because appellant moved for directed verdict only at the end of appellee’s case and failed to renew his motion at the close of the evidence. Although OCGA § 9-11-50 (b) provides that a motion for judgment n.o.v. may be made “[w]henever a motion for a directed verdict made at the close of all the evidence is denied,” the Supreme Court held in Department of Transp. v. Claussen Paving Co., 246 Ga. 807, 809 (2) (273 SE2d 161) (1980) that the statutory phrase “at the close of all the evidence” “do[es] not deny to a defendant who has moved for a directed verdict at the close of the plaintiff’s evidence the opportunity to move for judgment [n.o.v.] on the grounds presented in his motion for directed verdict.” Battle v. Yancey Bros. Co., 157 Ga. App. 277 (277 SE2d 280) (1981), cited by appellee, does not provide authority to the contrary, for that case relied on two cases previously overruled in Claussen Paving, supra at 808-809 (2). Accordingly, the trial court’s denials of both motions are properly before us.

(b) As to the merits of appellant’s appeal, we agree with him that the trial court erred by submitting to the jury the question whether the evidence authorized piercing the corporate veil. To establish a basis for disregarding the corporate entity on the ground that the corporation is a mere alter ego of an individual, “it must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and [that] to adhere to the doctrine of corporate entity would promote injustice or protect fraud. [Cits.]” (Punctuation omitted.) Trans-Amer. Communications v. Nolle, 134 Ga. App. 457, 460 (1) (a) (214 SE2d 717) (1975). The evidence adduced at trial did not present a jury question under this test. Appellant readily acknowledged that the holding company was not sufficiently capitalized to begin operations; however, undercapitalization of a corporation will justify piercing the corporate veil only when “coupled with evidence of an intent at the time of the capitalization to improperly avoid future debts of the corporation.” Hickman v. Hyzer, 261 Ga. 38, 40 (1) (401 SE2d 738) (1991). Here, appellant offered a valid business reason for the manner in which the acquisition was financed and gave an unrebutted explanation of the investors’ capitalization plans and the ultimate failure of that effort. Thus, there is no evidence of fraudulent intent at the time of capitalization. See id. at (1), (2).

Moreover, there is no evidence of commingling of personal and corporate assets or disregard of the corporate form. The holding company prepared corporate minutes and records and kept separate bank accounts. See Heyde v. Xtraman, Inc., 199 Ga. App. 303, 306 (404 SE2d 607) (1991). While appellant testified he sometimes issued payroll checks for employees of various corporations from one corporate account subject to later reimbursement, and the evidence showed he wrote Sands’s first check from the account of another company, there is no evidence he commingled personal assets with those of the holding company. See Hickman, supra at 40-41 (3). In comparison to the actions of the sole shareholder in Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (250 SE2d 851) (1978), cited by appellee, in the case at bar there is no evidence that appellant conducted his private and corporate business on an interchangeable basis as though they were one or that he commingled or confused personal and holding company property, records, or control. See Heyde, supra at 306-307. Nor is there any evidence of fraud. Like the corporation in Hickman, the holding company was shown to be nothing more than an unsuccessful business venture, “not a case of wrongdoing, fraud and bad faith on the part of a corporate [officer]. The . . . record [did] not create an issue of fact for the jury regarding piercing the corporate veil,” id. at 41, and accordingly, we hold appellant was entitled to a directed verdict on that issue at the close of appellee’s evidence. See Heyde, supra.

(c) We also must consider whether any evidence was adduced to support appellee’s claim at trial that appellant entered into the recruiting contract individually. Appellant denied acting in his individual capacity and asserted he acted solely on behalf of the holding company, the entity that was seeking to hire a CEO. Appellee’s only proof on this issue was the testimony of Richards and the documents and correspondence he prepared during the course of the transaction at issue. As discussed above, at different times during his testimony Richards stated that the contract was with appellant; that the contract was with appellant on behalf of the investors; that at his initial meeting with appellant Richards listed Marett Properties and the holding company as the client (although he subsequently acknowledged Marett Properties probably was not the client); and that he did not know who appellee’s client was.

Decided September 12, 1991.

Hylton B. Dupree, Jr., Mark A. Johnson, for appellant.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellee.

“The law in this state is that the testimony of a party offering himself as a witness in his own behalf is to be construed most strongly against him when it is contradictory, vague or equivocal [(cit.)]; even as against a directed judgment, [cits.], and that construction most unfavorable to his position should generally be adopted. [Cit.] If that most unfavorable position shows that the party is not entitled to prevail, unless other evidence shows compellingly that he should prevail, he must lose. [Cit.]” Veal v. Fraser, 155 Ga. App. 157, 161 (2) (270 SE2d 250) (1980). We find that Richards’s testimony must be subjected to this test, for it was confusing, equivocal, and contradictory. Since there was no other evidence adduced to support appellee’s theory of individual liability independent of Richards’s testimony, appellee was not entitled to prevail on its theory that appellant entered into the recruiting contract in his individual capacity, see generally id. at 160-161 (2), and appellant was entitled to a directed verdict. Accordingly, we reverse the denial of appellant’s motions and direct that judgment be entered for appellant in accordance with OCGA § 9-11-50 (b).

2. Because of our holding in Division 1, we need not address appellant’s other enumerations of error.

Judgment reversed with direction.

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


author: Beasley, Judge.

text:
    A91A1075.
    WILLIS v. THE STATE.
    (410 SE2d 377)
   Beasley, Judge.

Defendant Willis appeals his conviction of cruelty to an animal, OCGA § 16-12-4, enumerating as error that the evidence was insufficient.

Defendant was accused of shooting Tristan, an Australian Shepherd, which was owned by Dr. Janet Clark, a veterinarian. She and her husband, Don Clark, Jr., lived on property adjacent to that of defendant. Clark’s father, Don Clark, Sr., who also lived nearby testified that he heard the dog yelping and howling and saw it running away. He also saw defendant standing with a rifle in his hand. He began moving in the direction of defendant who, accompanied by his son, turned in the direction of a shed which he entered. Clark, Sr., stopped following defendant because Clark, Jr., arrived in his truck and they went to search for the dog before dark. Clark further testified the dog was on his son’s land and that he heard no report from the rifle. He explained that defendant had told him of shooting another dog with a pellet gun which makes no loud sound. After the dog was found, Dr. Janet Clark testified that it had a gunshot wound through its ear which she treated. Clark, Sr.’s wife testified that she heard the dog’s cries and upon looking out the window of the house she saw defendant holding what looked like a rifle and accompanied by his son. She stated defendant walked to a shed and came out empty-handed.

Decided September 12, 1991.

Andrews & Seery, Stephen H. Andrews, for appellant.

Defendant admitted on cross-examination that his son owned an air rifle or pellet gun which “will shoot pellets of BBs.” The rifle formerly was defendant’s. Defense witnesses gave testimony which, if believed, would establish an alibi for Willis.

The principal issues involved circumstantial evidence and credibility. In this respect, we view the evidence in a light most favorable to the verdict. Murdix v. State, 250 Ga. 272, 274 (1) (297 SE2d 265) (1982). “ Tf a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt,’ ” the jury’s finding will not be disturbed unless the verdict is unsupportable as a matter of law. Brewer v. State, 156 Ga. App. 468, 469 (274 SE2d 817) (1980). Accord Shockley v. State, 166 Ga. App. 182 (303 SE2d 519) (1983). We do not undertake to weigh the evidence but only to ascertain whether there is sufficient competent evidence to sustain the verdict. Pierce v. State, 243 Ga. 454 (254 SE2d 838) (1979). As to conflicting evidence and testimony, “[t]he weight of the evidence and credibility of witnesses are questions for the jury.” Williams v. State, 184 Ga. App. 68 (1) (360 SE2d 634) (1987). Jones v. State, 188 Ga. App. 398, 399 (373 SE2d 86) (1988).

Applying these precepts to the facts of this case, the evidence was sufficient to support the verdict.

Judgment affirmed.

Birdsong, P. J., and Carley, P. J., concur.

J. Richard Porter III, Solicitor, for appellee.


text:
    A91A1222.
    CANTRELL v. THE STATE.
    (410 SE2d 208)
    Decided September 12, 1991.

      Summer & Summer, Daniel A. Summer, for appellant.

      C. Andrew Fuller, District Attorney, Edward R. Collier, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was indicted with Robert Brown, Jr., on two counts of violating the Georgia Controlled Substances Act, i.e., selling cocaine. The case was tried before a jury and defendant was found guilty on both counts of the indictment. This appeal followed. Held:

In her sole enumeration, defendant contends the trial court erred in denying her motion for mistrial after the State’s attorney “stated in his opening argument that the co-defendant had pleaded guilty and admitted his guilt.”

During his opening statement, the State’s attorney stated, “Robert Brown was indicted with [defendant]. The evidence will show that he has plead guilty, he has admitted his guilt.” Defense counsel moved for a mistrial, arguing that evidence of a co-defendant’s guilty plea inappropriately suggests that “the other party is somehow also culpable or guilty.” The trial court held that evidence of a co-defendant’s guilt was not inadmissible and denied the motion for mistrial.

“We have acknowledged a ‘rule of inadmissibility with regard to a non-testifying co-indictee’s guilty plea. The cases which apply this rule of inadmissibility rely upon the language of OCGA § 24-3-52 and, based upon the consequent irrelevancy or incompetency of that guilty plea as proof of the guilt of the defendant on trial, hold that it cannot be used as substantive evidence “against” him. (Cits.)’ Foster v. State, 178 Ga. App. 478, 479 (343 SE2d 745). [However,] OCGA § 24-3-52 is inapplicable to the case sub judice since the co-indictee[, Robert Brown,] took the stand and was subject to cross-examination by defendant’s attorney. [Cits.]” Greer v. State, 188 Ga. App. 808 (1) (374 SE2d 337). Consequently, the State’s attorney’s comment regarding Robert Brown’s guilty plea was not harmful to defendant and the trial court did not err in denying defendant’s motion for mistrial.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A91A1224.
    HERSHISER v. YORKSHIRE CONDOMINIUM ASSOCIATION, INC.
    (410 SE2d 455)
   McMurray, Presiding Judge.

Plaintiff Yorkshire Condominium Association, Inc., a condominium homeowners’ association responsible for the management and maintenance of the common elements of Yorkshire Townhomes, filed this action against defendant Hershiser, owner of a condominium unit of Yorkshire Townhomes, to collect certain condominium assessments or fees, along with interest and attorney fees.

On August 9, 1990, plaintiff moved for summary judgment supported by an affidavit of Michele Young. On September 20, 1990, defendant filed her cross motion for partial summary judgment and for payment of attorney fees. Plaintiff filed a supplemental affidavit of Ms. Young on October 23, 1990, and on October 26, 1990, the affidavit of plaintiff’s counsel. On October 29, 1990, defendant filed a brief in support of oral objections made at the summary judgment hearing to plaintiff’s use of the supplemental affidavit of Ms. Young and the affidavit of plaintiff’s counsel.

The state court granted plaintiff’s motion for summary judgment, awarding damages of $1,059.70 in principal, $114.78 in interest, and $5,251.15 in attorney fees for a total judgment of $6,425.63. The defendant’s motions for partial summary judgment, attorney fees, and to strike affidavits were denied. Defendant appeals from the grant of plaintiff’s motion for summary judgment and from the denial of her motions for partial summary judgment and to strike affidavits. Held:

1. OCGA § 9-11-6 (d) provides in part, “When a motion is supported by affidavit, the affidavit shall be served with the motion.” While this statutory rule is not absolute and trial judges may exercise their discretion to permit the late filing of affidavits, the party seeking to file affidavits late must make a motion and obtain an extension from the court pursuant to OCGA § 9-11-6 (b). Citizens & Southern Nat. Bank v. Dorsey, 159 Ga. App. 784, 785 (1) (285 SE2d 242). No such request for an extension of the time within which to file and serve the affidavits having been made in the case sub judice and no finding of excusable neglect in failing to timely file and serve the affidavits having been made by the state court, we must conclude that plaintiff failed to proceed in a manner that would permit the state court to exercise its discretion under OCGA § 9-11-6 (b). It follows that the state court erred in considering (in relation to plaintiff’s motion for summary judgment), over defendant’s objection via motion to strike, the supplemental affidavit of Ms. Young and the affidavit of plaintiff’s counsel which were filed subsequent to plaintiff’s motion for summary judgment. Citizens & Southern Nat. Bank v. Dorsey, 159 Ga. App. 784, 785 (1), supra; Bailey v. Dunn, 158 Ga. App. 347 (280 SE2d 388). Compare Riberglass, Inc. v. ECO Chemical Specialties, 194 Ga. App. 417, 418 (1), 419 (390 SE2d 616).

2. Pursuant to OCGA § 44-3-109 (b) (3) plaintiff sought to recover “reasonable attorney’s fees actually incurred.” The evidence submitted by plaintiff on this issue shows no more than the amount billed by its attorney. This evidence is insufficient to establish the reasonableness of the claimed attorney fees, therefore the state court erred in awarding attorney fees to plaintiff. First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203); Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (4) (278 SE2d 689). Compare Wehunt v. Wren’s Cross &c. Assn., 175 Ga. App. 70, 72 (1) (332 SE2d 368).

3. Defendant enumerates as error the state court’s failure to strike portions of the original affidavit of Ms. Young. While there is authority for the striking of affidavits submitted on summary judgment where proper and timely motions to strike have been submitted (Ford v. Ga. Power Co., 151 Ga. App. 748, 749 (2A) (261 SE2d 474)), no such motion to strike Ms. Young’s original affidavit was filed by defendant in the state court. Criticism of the affidavit at issue in defendant’s brief did not elicit action by the state court and therefore did not amount to a motion to strike. This enumeration of error is without merit. Connell v. Houser, 189 Ga. App. 158, 159 (3) (375 SE2d 136).

4. The state court erred in awarding plaintiff interest on the sum allegedly due. The plaintiff’s condominium declaration reserved interest on assessments not paid when due at a rate in excess of that permitted under the provisions of OCGA § 44-3-109 (b) (2). While plaintiff sought to recover, in the state court, only the amount permitted under the statute, contracting for the payment of the higher rate amounts to usury. Walton v. Johnson, 213 Ga. 108, 110 (2) (97 SE2d 310). Usury results in forfeiture of the entire interest. OCGA §§ 7-4-2 (a) (2) and 7-4-10 (a).

“There are four requisites of every usurious transaction: (1) A loan or forbearance of money, either express or implied. (2) Upon an understanding that the principal shall or may be returned. (3) And that for such loan or forbearance a greater profit than is authorized by law shall be paid or is agreed to be paid. (4) That the contract was made with an intent to violate the law.” Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801, 810 (132 SE 221). See also Knight v. First Fed. &c. Assn., Savannah, 151 Ga. App. 447, 448 (1), 449 (260 SE2d 511). All of these elements are present in the case sub judice.

5. In her fifth enumeration of error, defendant contends that the state court erred in construing the contract or condominium instruments in relation to attorney fees. In view of the paucity of evidence concerning the basis for the attorney fees awarded (see Division 2), there is nothing in the record which conclusively supports defendant’s hypothesis that the state court awarded pre-litigation attorney’s expenses. Therefore, an issue as to whether pre-litigation attorney fees could be awarded under plaintiff’s declaration is not ripe for appellate review. Since this issue is prematurely raised, it will not be addressed on this appeal. Insofar as this enumeration of error is concerned with the applicability of OCGA § 13-1-11 to plaintiff’s claims for attorney fees, we note our decision in Wehunt v. Wren’s Cross &c. Assn., 175 Ga. App. 70, 74-75 (6), supra.

Decided September 12, 1991.

Lipshutz, Greenblatt & King, Randall M. Lipshutz, Bruce J. Landau, Zimring & Ellin, Martin L. Ellin, for appellant.

Swift, Currie, McGhee & Hiers, Jane C. Barwick, for appellee.

6. In summary, the state court’s grant of summary judgment in favor of plaintiff is reversed for the reasons stated in Divisions 1, 2 and 4 of this opinion. The denial of defendant’s motion for partial summary judgment on plaintiff’s claim for interest on past due assessments is also reversed, based on Division 4.

We affirm the denial of defendant’s motion for partial summary judgment on plaintiff’s claim for attorney fees.

Judgment affirmed in part and reversed in part.

Andrews, J., concurs. Sognier, C. J., concurs specially.

Sognier, Chief Judge,

concurring specially.

I concur fully. I write to explain my agreement with the majority’s conclusion, in Division 4, that all of the elements necessary to show usury are present in this case, particularly the showing that there existed a “loan or forbearance of money.” I have found only one Georgia case in which usury was found to exist where the underlying obligation was a forbearance of money rather than a loan, note, or mortgage: in Plastics Dev. Corp. v. Flexible Prods. Co., 112 Ga. App. 460 (145 SE2d 655) (1965), we noted that a contract calling for interest at a rate greater than that allowed by law for delayed payments on an account was usurious. Black’s Law Dictionary (5th ed., p. 580) defines “forbearance” as an “[a]ct by which [a] creditor waits for payment of [a] debt due him by [a] debtor after it becomes due ... [or a] delay in enforcing rights.” As it is undisputed in the case sub judice that the assessments forming the principal sued on here were overdue, it follows that the delay in collection was a forbearance on the part of the association, and thus the necessary elements of usury existed.


text:
    A91A1330.
    POWELL v. THE STATE.
    (410 SE2d 378)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated assault and possession of a firearm during the commission of a crime. This appeal followed. Held:

1. In his first enumeration, defendant contends the trial court erred in denying his motion for a directed verdict, arguing that there was insufficient evidence to corroborate his admission that he shot a handgun and missed a “dude” he intended to kill and hit the two-year-old victim.

“OCGA § 24-3-53 provides that a confession alone, uncorroborated by any other evidence, shall not justify a conviction. However, a conviction may be had on a confession although corroborated only by proof of the corpus delicti. Brown v. State, 167 Ga. App. 851, 853 (1) (307 SE2d 737) (1983). The amount of evidence necessary to corroborate a confession is for the jury to decide, as it may consider the confession along with other facts and circumstances independent and separate from it in determining whether or not the corpus delicti has been established to their satisfaction. Id.” Nation v. State, 180 Ga. App. 460 (1), 461 (349 SE2d 479).

In the case sub judice, an eyewitness testified that he saw defendant fire several rounds from a handgun and that the gunfire hit the two-year-old victim. This testimony and evidence that defendant was carrying small caliber ammunition shortly after the shooting sufficiently corroborated defendant’s admission and authorized the jury’s finding that defendant was guilty, beyond a reasonable doubt, of aggravated assault and possession of a firearm during the commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The trial court did not err in denying defendant’s motion for directed verdict of acquittal.

2. Next, defendant contends the trial court erred in denying his motion for a mistrial after his character was placed in issue.

The record shows that Officer Lamar Clark of the Rome City Police Department testified that defendant was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), and that defendant indicated that he understood his rights by responding, “ T have had them read to me before.’ ” Defense counsel objected and complained that the officer’s testimony “infers that [defendant] has been involved in some sort of previous criminal activity and thus puts his character in issue. ... I would have to move for a mistrial.” The trial court denied the motion for mistrial, but instructed the jury as follows: “Ladies and gentlemen, that last comment was not directed to this case at all and has nothing to do with the trial of the defendant in this case, and I’m going to instruct you to disregard the comment made by Officer Clark with respect to the reading of these rights previously to the defendant. It has nothing to do with this charge or these charges before you and will have nothing to do with the verdict that you render in this case, and I instruct you to disregard it completely; and I instruct Officer Clark not to refer to that any longer.”

“The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with. [Cits.]” Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315). The circumstances of the case sub judice do not reveal an abuse of the trial court’s discretion in denying defendant’s motion for mistrial. Curative instructions were promptly given and the State’s witness was admonished to refrain from referring to the objectional testimony. Beach v. State, 258 Ga. 700, 701 (1) (373 SE2d 210). This enumeration is without merit.

3. In his last enumeration, defendant contends the trial court erred in determining that his custodial statement was free and voluntary, arguing that he was intoxicated at the time of police interrogation.

“[I]ntoxication does not always preclude an individual’s making a knowledgeable waiver of his rights. Strickland v. State, 250 Ga. 624 (300 SE2d 156) (1983).” Horton v. State, 258 Ga. 489, 490 (3) (371 SE2d 384). The totality of the circumstances that precedes the statement must be examined in determining voluntariness. Williams v. State, 238 Ga. 298, 300 (1), 302 (232 SE2d 535). In the case sub judice, Detective Tom Bojo of the Rome Police Department testified that he interrogated defendant during the evening after defendant’s arrest and that defendant then smelled of alcohol, but that he did not appear to be drunk. Detective Bojo further testified that, before questioning, defendant was advised of his rights under Miranda v. Arizona, 384 U. S. 436, supra; that defendant indicated an understanding of his constitutional rights and that defendant was not threatened or coerced into giving a statement. Detective Bojo testified that defendant gave information regarding “his name, date of birth, his address, phone number, social security number [and] high school education.” Detective Bojo affirmed that defendant appeared to “understand . . . questions regarding his rights . . .” and that defendant’s speech was “coherent” at the time of questioning. This evidence is sufficient to authorize the trial court’s finding that defendant knowingly, freely and voluntarily submitted to police interrogation. Sams v. State, 258 Ga. 158, 160 (2) (366 SE2d 290).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided September 12, 1991.

William H. Newton III, for appellant.

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


text:
    A91A1436.
    STEWART v. THE STATE.
    (410 SE2d 380)
   McMurray, Presiding Judge.

Defendant was indicted for murder (Count 1), felony murder during the commission of aggravated assault (Count 2) and possession of a knife during the commission of a crime (Count 3). The case was tried before a jury and defendant was found not guilty on Count 1, guilty of the lesser included offense of aggravated assault on Count 2, and guilty on Count 3. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first contends the evidence was insufficient to support the jury’s verdict. We do not agree.

Defendant admitted that he stabbed and killed the victim during a violent lovers’ quarrel, but claimed that he inflicted the fatal wounds in self-defense. The State’s evidence showed that the victim had multiple wounds over his body; that six knife wounds were found on the front and back of the victim’s abdomen; that four of the abdomen wounds had a “depth [of] approximately six inches . . .” and that a knife with an “eight to ten inch . . .” blade and a broken handle was found under the victim’s body. This evidence and evidence showing that the victim had “defense injuries” on “the hands and the forearm ...” support the jury’s finding, beyond a reasonable doubt, that the force defendant used against the victim was unnecessary in self-defense and that defendant’s acts constituted aggravated assault of the victim with a knife blade three or more inches in length. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Next, defendant contends “[t]he trial court erred and prejudiced the jury in failing to instruct on specific intent and justification in its supplemental instruction.”

During deliberations, the jury returned with the following pertinent question: “The charges that we received were malice and felony, but we also heard voluntary manslaughter and aggravated assault. How does aggravated assault and voluntary manslaughter fit in with felony and malice?” The trial court responded to the jury’s questions and asked counsel, “is there any exception to the recharge?” Defendant’s attorney responded, “Your honor, I think you correctly answered the questions that they asked you. I respectfully prayed that you would charge on specific intent, and even though they did not request it on justification, and I know what your answer was to that.”

Decided September 12, 1991.

Tony L. Axam, for appellant.

Robert E. Wilson, District Attorney, J. Michael McDaniel, Barbara B. Conroy, Assistant District Attorneys, for appellee.

“Where a jury requests a charge or recharge on a particular point, it is within the discretion of the judge to also give or not give additional instructions. Taylor v. State, 169 Ga. App. 842, 844 (315 SE2d 661) (1984).” Walter v. State, 256 Ga. 666, 668 (2) (352 SE2d 570). In the case sub judice, we find no abuse of the trial court’s discretion in failing to recharge on specific intent and justification in its response to the jury’s question. Penn v. State, 260 Ga. 117, 118 (6) (390 SE2d 584).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Pope, Judge.

text:
    A91A0814.
    McCLAIN v. THE STATE.
    (410 SE2d 325)
   Pope, Judge.

Defendant Willie Moses McClain was convicted of aggravated assault and aggravated battery upon his wife and appeals.

1. After deliberations, the jury returned to the courtroom and the foreman announced: “We, the members of the jury, have come to the conclusion, based on not having enough evidence that this case should be handled by another jury.” The trial judge stated he did not know what the jury meant and asked if the jury could not reach a verdict. The foreman stated, “Each time [we voted] it was a split decision.” The judge instructed the jury to deliberate further. The jury ultimately returned a guilty verdict on both counts charged.

Defendant argues the initial announcement of the foreman amounted to a verdict of not guilty for lack of evidence and that the trial court erred in requiring further deliberation. We conclude the original announcement did not amount to an acquittal but an indication that a unanimous verdict had not been reached. When the verdict returned by the jury gives neither a verdict of guilty nor a verdict of not guilty of the offense charged, then it is a nullity and the trial court should refuse to receive it. Cross v. State, 124 Ga. App. 152 (2) (183 SE2d 93) (1971). No error is committed when a trial court refuses to accept a verdict which does not properly find the defendant either guilty or not guilty and “[requires] the jury to return to the jury room to reach and record a verdict correct in form and substance. [Cits.]” Bearden v. State, 159 Ga. App. 892, 895 (7) (285 SE2d 606) (1981). See also Savage v. State, 165 Ga. App. 121 (2) (299 SE2d 177) (1983); Alexander v. State, 150 Ga. App. 41 (2) (256 SE2d 649) (1979).

Decided September 3, 1991

Reconsideration denied September 13, 1991

Lori Silverman, Kenneth Kondritzer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

2. In the course of instructing the jury on the element of criminal intent, the trial judge stated: “In other words, if you came home one night and had lost your key and forced your way into your house, after you got inside lo and behold you found you were in somebody else’s house, you wouldn’t be guilty of a crime, might be hard to prove it, but you wouldn’t be guilty of a crime because you had no intention of breaking in someone else’s house . . . .” Defendant argues this instruction was error as a matter of law because it implies a defendant has the burden of proving lack of intent to commit a crime. “ Tt is well settled by case law that the charge of the court must be taken in its entirety when considering its impact upon the jurors.’ Dyke v. State, 232 Ga. 817, 825 (209 SE2d 166) (1974). When the charge in the present case is taken as a whole, the jury was clearly informed of the correct applicable law as to [criminal intent and burden of proof]. Anderson v. State, 150 Ga. App. 318 (1) (257 SE2d 385) [(1979)].” (Punctuation omitted.) Cordova v. State, 191 Ga. App. 297, 298 (3) (381 SE2d 436) (1989).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Carley, Presiding Judge.

text:
    A91A0787.
    WATSON v. GEORGIA FEDERAL BANK, FSB.
    (410 SE2d 387)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit against appellee-defendant, seeking to recover for injuries that he allegedly sustained in a vehicular collision. After a jury trial, a verdict in favor of appellee was returned. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

On cross-examination of appellant, counsel for appellee asked the following question: “Do you have any health or accident disability policies?” Before this question was ever answered, appellant made an immediate objection which the trial court promptly sustained. Appellant then moved for a mistrial. The denial of the motion for mistrial is the basis of appellant’s sole enumeration of error.

Decided September 13, 1991.

Albert E. Jones, for appellant.

Van Gerpen, Shigley & Hoffman, Earl J. Van Gerpen, George L. Parson, John A. Allen Associates, John A. Allen, for appellee.

The instant collision occurred prior to the effective date of OCGA § 51-12-1 (b). Accordingly, resolution is dependent upon a consideration of neither that statutory provision nor of the effect of Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991), which declared that statutory provision to be unconstitutional. Instead, appellant relies upon an application of the long-standing pre-tort reform “rule that evidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant. ...” Collins v. Davis, 186 Ga. App. 192, 193 (1) (366 SE2d 769) (1988). After a thorough review of the record, however, we conclude that this principle would not mandate a reversal of the judgment in the instant case. “ ‘Although the question asked by appellee’s counsel [may have been] a patent attempt to introduce inadmissible evidence, the question was never answered, and we do not believe that in the context of all the evidence presented during this [three]-day trial it so prejudiced the proceedings as to require a mistrial as a matter of law.’ [Cit.]” Carolina Cas. Ins. Co. v. Davalos, 154 Ga. App. 776, 780 (3) (269 SE2d 897) (1980), rev’d on other grounds, 246 Ga. 746 (272 SE2d 702) (1980).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in the judgment only.


text:
    A91A0882.
    S. J. KILPATRICK CONSTRUCTION COMPANY v. SIZEMORE.
    (410 SE2d 386)
   Carley, Presiding Judge.

Appellant-plaintiff filed suit, seeking to recover on a promissory note. Although the complaint named “Richard D. Sizemore” as the defendant, the note attached thereto bore the name and signature of “Richard D. Sizemore, Jr.” The complaint was served at the residence of appellee-defendant Richard D. Sizemore, Sr. When no answer was filed, appellant secured a default judgment against “Richard D. Size-more.” When appellant sought to enforce this default judgment against appellee, appellee filed a motion to set that default judgment aside as to him. The trial court granted the motion and appellant appeals.

Decided September 13, 1991.

Allman & Banner, Denise R. Griffin, for appellant.

John B. Blandford, for appellee.

Anthony Sizemore, pro se.

Richard Sizemore, pro se.

Assuming without deciding that appellant had ever even obtained a default judgment against appellee, the trial court clearly did not err in setting that default judgment aside. The note attached to the complaint shows that appellant’s claim is against “Richard D. Sizemore, Jr.” and that appellant has no claim whatsoever against appellee. See generally Gilham v. Stamm & Co., 117 Ga. App. 846 (162 SE2d 248) (1968).

Judgment affirmed.

Beasley and Cooper, JJ., concur.


author: Sognier, Chief Judge. McMurray, Presiding Judge,

text:
    A91A1040.
    SULLENBERGER v. GRAND UNION COMPANY.
    (410 SE2d 381)
   Sognier, Chief Judge.

Douglas Sullenberger brought suit against Grand Union Company d/b/a The Big Star Grocery and Selig Enterprises, Inc. seeking damages for injuries he incurred when he slipped and fell in a parking lot owned by Selig Enterprises and leased by Grand Union for customers at its Big Star grocery store. The trial court granted Grand Union’s motion for summary judgment, and Sullenberger appeals.

Appellant’s fall occurred at approximately 8:00 p.m. on November 9, 1987. Appellant stated in his deposition that after purchasing a cart full of groceries at appellee’s store, he left and pushed the cart himself up an incline in the parking lot to his car. Appellee does not provide employees to carry groceries for customers. Appellant testified he positioned his cart so that its front was heading downhill, backed it to the rear of his car, and braked the cart by placing one foot behind a wheel. After all but the final bag of groceries had been loaded in his car, appellant moved his foot from behind the wheel in order to position the last bag further into his car. He then turned to see the cart he had released rolling down the drive lane of the parking lot toward a trafficked lane in front of the grocery store.

Appellant, who is an attorney, stated that he dashed after the cart “thinking proximate cause,” but because the slope of the driveway or the cart’s wheels were causing it to angle to the left, appellant did not chase directly after it. Instead, he decided that he was “going to chance” trying to “head it off” by deliberately cutting across an area of the lot he was aware had been designed for and contained parked cars. Appellant admitted that he could not recall what he was watching as he ran and that he did not know what he was looking at, other than the fleeing grocery cart, as he cut past a parked car. A parking bumper or curb, which appellee’s expert testified was “required by the City,” was positioned between a handicapped parking space and a cart return area. Appellant stated, “I don’t know for a fact that I tripped on the curb. I know that the curb was right behind me and that was the path I took, but I don’t know for a fact because I wasn’t watching my feet every second that I was running.” After his fall he saw a dark puddle of liquid which he could not identify but stated that “as opposed to a slip or a trip, it seems to me it had to have been a trip because I fell so far forward from where I was.” The inadequacy of the lighting in the parking lot was one of the instances of negligence alleged in appellant’s complaint. Appellee’s expert testified that a standard light with four four-hundred-watt high intensity lights was installed directly in front of the store where the fall occurred. When appellant was questioned about the lighting, he responded, “Was lighting a factor? I don’t know. I don’t know if it would have made a difference if there had been more light there or not. I can’t say.”

Appellant contends the trial court erred by granting appellee’s motion for summary judgment. “The utilization of dividers [or concrete bumpers] in parking lots does not in itself constitute negligence. [Cits.]” Townsend v. Central Parking, 118 Ga. App. 538, 539 (164 SE2d 287) (1968). See McHugh v. Trust Co. of Ga., 102 Ga. App. 412 (116 SE2d 512) (1960). Appellant argues these cases are distinguishable here because they did not involve a situation where the plaintiff’s attention was distracted by vehicular traffic and by a sudden emergency caused by a runaway cart. However, the evidence here establishes that it was the result of appellant’s own negligence in releasing his control over a cart he had positioned to head downhill on a slope that appellant had to run across the parking lot after his cart to prevent it from harming anyone. Thus, any “distraction” posed by the fleeing cart “was self-induced by a possible emergency situation which was entirely of [appellant’s] own creation. ‘ “One valid line of distinction existing in the so-called ‘distraction’ cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.’” [Cit.]” Gray v. Alterman Real Estate Corp., 196 Ga. App. 239, 240 (396 SE2d 42) (1990).

The record also establishes that although appellant deliberately chose to risk cutting across an area marked for and occupied by parked cars, see Townsend, supra, he admittedly ran without watching where he was going. Appellant’s own testimony thus establishes that he would not have seen the parking curb. “ ‘It is generally incumbent upon one to use his eyesight for the discovering of any obstruction that may have been placed in the way. (Cits.)’ [Cit.]” Gray, supra at 240-241. Finally, appellant’s own testimony reveals that he did not know that the parking curb caused his fall, see Batts v. Bozeman & Son, 196 Ga. App. 614, 615-616 (396 SE2d 505) (1990), nor did he adduce any evidence that different lighting would have prevented his fall.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Applying this standard to the facts in the case sub judice, appellee was entitled to summary judgment as a matter of law, and the trial court did not err by so ruling.

Judgment affirmed.

Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur. Carley, P. J., concurs in the judgment only. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

The evidence upon which the trial court based the grant of summary judgment showed that plaintiff shopped at the Big Star store at Ansley Mall in Atlanta on the evening of November 9, 1987, exiting the store at about 8:00 p.m. with a full cart of groceries. Big Star does not provide employees to assist customers in transferring their groceries from the store to their cars, but does furnish carts for that purpose. Plaintiff pushed his cart up the inclined parking lot in front of the store, backed the cart to the rear of his car, opened the trunk and began unloading bags of groceries into it. Plaintiff kept the cart in place by putting his foot under one wheel, but as he reached for the last bag the cart began rolling down the parking area, veering to the left and “bumping” and “hopping.” As an attorney, plaintiff’s first thought was that the cart “careening down the hill” would be the proximate cause of injuring someone.

Plaintiff chased after the cart “as fast as [he could] run” as it gathered speed, trying to catch it before it crashed into cars or hit a pedestrian. To “head it off” he cut through a parking lane and tripped over a three-to-four inch divider curb or bumper positioned between a handicapped parking space and the cart return area. Although he did not recall exactly what happened, he remembered “flying and landing on” his left elbow, breaking his arm in two places below the elbow. There were no such raised obstructions in the area where plaintiff parked his car and, while he was not looking at his feet, his impression was that he tripped over the bumper rather than slipped because his body was “angled out” when he went down.

The fact that plaintiff could not say “if it would have made a difference if there had been more light or not” does not obviate issues of location of the obstruction, observability to the plaintiff and maintenance of the area by defendants. Construing the evidence most favorably to plaintiff as the party opposing the motion for summary judgment, it could be concluded that the parking lot was not adequately lighted and that the obstruction over which plaintiff fell was obscured by darkness as well as the parked cars around it. Thus, unresolved questions of fact are presented as to whether the bumper constituted an open and obvious obstruction, whether this area was inadequately lighted and plaintiff was prevented from observing the curb or whether his view was blocked by a parked car, which should have been reasonably anticipated by Big Star as occupier of the premises.

The controlling principles of law here are as follows: “Plaintiff was an invitee of defendant. An owner or occupier of retail premises is not an insurer of the safety of invitees [cit.] but a duty rests upon it to exercise ordinary care to keep the premises safe for persons coming thereon by its invitation. [Cit.] An invitee may rely upon the proper discharge of this duty by the owner or occupier and is not, as a matter of law, guilty of negligence in failing to discover the existence of a patent defect in the premises which could render it unsafe for persons coming upon the premises. [Cit.] However, the customer-invitee must make use of all of his or her senses in a reasonable measure — amounting to ordinary care, in discovering and avoiding those things that might cause injury to him. It is his duty to exercise ordinary care to observe such obstructions as an ordinarily prudent person would, under normal conditions, expect in the . . . place of business in which he is an invitee. [Cit.]” Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 428 (1) (263 SE2d 171) (1979).

“The decisive issues are: ‘(1) fault on the part of [Big Star], and (2) ignorance of the danger on the part of the [plaintiff]. (Cit.)’ [Cit.] With regard to the first issue: ‘The question is whether these dividers [or bumpers] expose an invitee to a foreseeable unreasonable risk of harm under the totality of the circumstances in each particular case. In making this determination, the court must consider the utility of the dividers with respect to the type of construction, location, observability to invitees and the state of maintenance.’ [Cit.]” Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 349-350 (1) (349 SE2d 241) (1986). With regard to the second issue, “if the lack of lighting prevents the injured party from discovering a dangerous condition of which the owner [or occupier] but not the injured party should be aware, liability may be imposed. [Cit.]” Evans v. Parker, 172 Ga. App. 416, 417 (2) (323 SE2d 276) (1984).

Moreover, “[t]he doctrine that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril is well recognized. From this stems the rule that a lesser degree of prudence may be sufficient to constitute ordinary care where there are circumstances causing stress or excitement. [Cit.] The doctrine is further broadened to cover situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur. . . . One valid line of distinction existing in the so-called ‘distraction’ cases concerns the cause of the distraction. Where the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence. Where the distraction comes from without, and is of such nature as naturally to divert the plaintiff, and also of such nature that the defendant might naturally have anticipated it, the result is different. [Cit.]” Redding v. Sinclair Refining Co., 105 Ga. App. 375, 377 (2), 378-379 (124 SE2d 688) (1962). See Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473 (249 SE2d 276) (1978).

“This court thoroughly discussed the two lines of cases regarding the ‘plain view’ doctrine and the ‘distraction’ rationale in Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473 [supra] where we held that the issue could not be determined as a matter of law and was a question for the jury. We reaffirmed the general rule that issues of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s own protection are ordinarily for the jury [cit.] and are usually incapable of summary adjudication and should be resolved by trial. [Cit.]” Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427, 430, supra.

Decided September 13, 1991.

Weinstock & Scavo, Michael Weinstock, Michael J. Zenner, for appellant.

Sullivan, Hall, Booth & Smith, Alexander H. Booth, Jeffrey T. Wise, Joe O’Connor, for appellee.

In my view, the “distraction theory” is applicable here. “The evidence authorized a finding of [plaintiff’s] distraction ‘by reason of present or reasonably to be anticipated dangers’ resulting from being subjected to extremely close proximity to vehicular traffic [while trying to prevent the grocery cart’s precipitous flight].” Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 816 (1) (318 SE2d 235) (1984).

“ ‘[I] cannot say that under these circumstances that a conclusion, as a matter of law, is demanded that the plaintiff should have had a full appreciation of the danger, and that in the exercise of ordinary care (he) should have avoided the injury to (himself). This, [I] think, is a question for the jury.’ Firestone Service Stores v. Gillen, [58 Ga. App. 782, 787 (199 SE 853)].” Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 813 (1), 815, supra. Accordingly, I respectfully dissent.