author: Ellington, Judge.

text:
    A99A1944.
    MYERS v. NORTH GEORGIA TITLE & TAX FREE EXCHANGE, LLC.
    (527 SE2d 212)
   Ellington, Judge.

James I. Myers, pro se, appeals from the trial court’s order granting North Georgia Title & Tax Free Exchange, LLC (“North Georgia”) summary judgment. Myers was ejected from his home following a dispossessory proceeding in magistrate court brought by North Georgia after it acquired a quitclaim deed to Myers’ property following an Internal Revenue Service (IRS) tax sale. Myers’ appeal to the superior court was dismissed. Meyers then filed the instant action, seeking to litigate whether North Georgia had valid title to the property. North Georgia filed a motion to dismiss on res judicata grounds, which the court treated as a motion for summary judgment and granted. Because Myers did not have the opportunity in the prior suit to litigate the title issues he now raises, the doctrine of res judicata does not apply. Consequently, we must reverse the grant of summary judgment.

1. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). Viewed in this light, the record reveals that as a result of Myers’ failure to pay income tax, the IRS placed liens against his home at 1328 Buford Highway. On January 30, 1997, the IRS seized the property. North Georgia bought the property for $146,000 at an auction held on April 8, 1997. The IRS issued North Georgia a certificate of sale on April 15, 1997. On October 7, 1997, after the expiration of the statutory 180-day redemption period, the IRS issued North Georgia a quitclaim deed to the property. North Georgia filed a dispossessory action in the Gwinnett County Magistrate Court on December 14, 1997.

Myers responded to the dispossessory action, arguing that North Georgia had no ownership interest in the property and that it had acquired the IRS liens but not title. Following a hearing on December 22, 1997, the magistrate court entered judgment in favor of North Georgia with possession to take place on January 8,1998. The magistrate court informed Myers that he could appeal the decision by timely filing a notice of appeal and by paying the monthly rental into the court registry. Myers filed a notice of appeal, but failed to pay rent into the registry. For that reason, the superior court dismissed his notice of appeal. Myers did not appeal the dismissal order, and on February 13, 1998, Myers was evicted.

On June 19, 1998, Myers brought the instant action entitled “Complaint for Quiet Title and Damages” in Gwinnett County Superior Court. A review of the complaint reveals that Myers sought to litigate “whether the federal tax sale was valid and effective” and whether North Georgia had a right to take possession of the property by virtue of the IRS quitclaim deed. Finding that Myers’ claims were barred by the prior dispossessory action in magistrate court under the doctrine of res judicata, the superior court granted summary judgment in favor of North Georgia.

The doctrine of res judicata, codified in OCGA § 9-12-40, provides that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

Applying this doctrine, a prior action will bar a subsequent action if these requirements are met:

The first action must have involved an adjudication by a court of competent jurisdiction; the two actions must have an identity of parties and subject matter; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action.

(Citations omitted.) Fowler v. Vineyard, 261 Ga. 454, 455 (1) (405 SE2d 678) (1991); Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337 (514 SE2d 684) (1999).

In this case, the doctrine does not apply because Myers did not have the opportunity to litigate whether North Georgia had title to the property in the prior magistrate court action. The magistrate court has jurisdiction over landlord-tenant dispossessory actions under OCGA § 44-7-50 et seq., and not over ejectment suits under OCGA § 44-11-1. OCGA § 15-10-2 (6). North Georgia chose to file in the magistrate court a dispossessory action under OCGA § 44-7-50 against Myers as a tenant at sufferance. Pursuant to OCGA § 44-7-9, Myers “is estopped from asserting an ownership interest in the property, and thereby disputing his landlord’s title to the property, during a dispossessory hearing.” Gentry v. Chateau Properties, 236 Ga. App. 371, 372 (1) (511 SE2d 892) (1999); Bridges v. City of Moultrie, 210 Ga. App. 697, 698 (1) (437 SE2d 368) (1993). Because Myers could not dispute North Georgia’s title in the prior proceeding, the doctrine of res judicata does not apply. See Fowler v. Vineyard, 261 Ga. at 455 (1).

Decided December 9, 1999.

James I. Myers, pro se.

Chandler & Britt, Luther H. Beck, Jr., for appellee.

We do not determine whether the trial court’s ruling met the “judgment right for any reason” rule. Ordinarily a judgment right for any reason must be affirmed; however, where it is apparent that the trial court rested its judgment upon an erroneous legal theory, it commits reversible error. Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249) (1995).

2. In view of our decision in Division 1, we need not reach Myers’ remaining enumerations of error.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A2084.
    PARKS v. THE STATE.
    (526 SE2d 893)
   Phipps, Judge.

Parks was convicted of committing rape and aggravated sodomy on J. A., of engaging in sodomy with M. M., and other offenses. In this appeal of his convictions, Parks contends that the court erred in admitting evidence concerning post-rape medical efforts to prevent transmission of the AIDS virus to J. A. He raises other issues concerning the constitutionality of his sodomy conviction, the denial of his motion for directed verdict, and the correctness of various jury instructions. We find no reversible error and affirm.

An indictment was returned charging Parks with the rape and kidnapping of M. M. and J. A., two counts of aggravated assault by pointing a shotgun at the victims, and four counts of aggravated sodomy by forcing each victim to perform both oral and anal sodomy with him. The jury returned a verdict finding Parks guilty of simple battery on M. M. as a lesser included offense of rape, guilty of rape of J. A., guilty of simple assaults on M. M. and J. A. as lesser included offenses of the aggravated assaults, not guilty of aggravated oral sodomy on M. M. but guilty of sodomy as a lesser included offense of the anal sodomy on M. M., guilty of aggravated oral and anal sodomy on J. A., and guilty of false imprisonment of the victims as lesser included offenses of kidnapping.

Parks and M. M. met at Charter Peachford Hospital in Atlanta. M. M. was HIV positive when she and Parks became romantically involved. Now Parks is also HIV positive. Although he and M. M. were ending their relationship, M. M. agreed to go to his house. She was accompanied by her friend J. A. When they arrived, Parks was intoxicated and complained that M. M. had ruined his life by giving him the AIDS virus. In short order, he punched M. M. in the face thereby fracturing her nose, brandished a shotgun, and forced her and J. A. to get back into their car and drive to a secluded area. M. M. drove, J. A. sat in the front seat, and Parks sat in the rear of the car holding the shotgun. En route, he punched J. A. in the face. His stated intent was to torture and humiliate both women.

When the group arrived at their destination, Parks forced J. A. to perform oral sodomy upon him by sticking the shotgun into her stomach and threatening to kill her if she did not do as he instructed. J. A. knew that Parks was HIV positive and begged him to have sex with M. M. instead. Although M. M. was agreeable, Parks insisted on J. A.’s performance of the sexual act. Afterward, they drove back to Parks’s house. En route, Parks forced J. A. to remove her clothes. After they parked the car in Parks’s driveway, he coerced J. A. into getting into the back seat and engaging in vaginal and then anal sex by threatening that he would otherwise kill M. M. At one point, Parks became frustrated with J. A.’s performance, instructed M. M. to get into the back seat, and had vaginal and anal intercourse with her. Although M. M. characterized her sexual activity with Parks as consensual, she testified that she did it so he would leave J. A. alone. J. A. testified that as all this was happening, people were milling about in the driveway. One even peered into the car and observed what was taking place, but would not render any assistance although she mouthed the word help. At least one of the car’s windows was down.

According to Parks, both M. M. and J. A. voluntarily engaged in the previously described sexual activities with him after he assured J. A. he would not ejaculate and offered both women money.

The victims went from Parks’s house to the police station and then to the hospital. J. A. was described as “hysterical.” A pelvic examination revealed that her vagina was teeming with motile sperm. Over objection, the prosecution was allowed to show that J. A. agreed to take the drug AZT for a period of six months in an attempt to prevent transmission of the AIDS virus, even though the drug has negative side effects and has not been proven effective.

1. Parks challenges the constitutionality of his conviction of sodomy under Powell v. State.

After this case was tried, Powell did hold that under the Georgia Constitution’s protection of the right of privacy, the state legislature cannot regulate private sexual conduct of consenting adults via Georgia’s sodomy statute. But Powell clearly noted that this right of privacy does not protect sexual activity performed in a public place, in exchange for money, or with force and against the will of the participant.

Although the jury by its verdict found that the State did not prove beyond a reasonable doubt that the sodomy was forceful and against M. M.’s will, the evidence authorized the jury to find that the act of sodomy was performed in a public place, and the verdict is not inconsistent with such a finding. According to Parks, M. M. performed sodomy on him in exchange for money. In either event, the act was beyond the ambit of constitutional protection.

2. Parks contends that the trial court erred in denying his motion for directed verdict on the counts of the indictment charging him with raping M. M. and committing aggravated anal sodomy upon her.

Parks argues that the evidence shows without dispute that any sexual activity between him and M. M. was with her consent. Even if this were so, Parks was found guilty of committing a simple battery on M. M. as a lesser included offense of rape and of sodomy as a lesser included offense of aggravated sodomy. Because the evidence is indisputably sufficient to establish Parks’s guilt of the lesser included offenses, any error by the court in denying Parks’s motion for directed verdict on the greater offenses would have been harmless.

3. Parks contends that the court gave duplicative instructions when it charged the jury that (1) a fear of bodily injury may result in an act of sexual intercourse being non-consensual, and (2) a threat of bodily injury may supply the element of force for the crime of rape. There is no merit in this contention, as force and lack of consent are two distinct elements of rape.

4. Parks charges the court with error in admitting evidence that J. A. took the drug AZT.

The court did not abuse its discretion in finding that evidence of J. A.’s decision to submit to this drug regimen, despite its negative side effects and unproven effectiveness, tended to show that she would not have voluntarily consented to unprotected sex with Parks knowing that he was HIV positive. Moreover, we do not find the evidence harmful to Parks as it left the jury with the impression that J. A. might not have contracted the AIDS virus.

5. In reliance on Kunselman v. State, Parks contends that the court gave an incorrect sequential charge to the jury on the greater and lesser included offenses.

Decided December 9, 1999.

Sarina J. Woods, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

The court charged the jury that “should you find the defendant not guilty of [the greater offense] or should you have a reasonable doubt as to his guilt of that offense, you would be authorized to determine whether he is guilty of the lesser included offense. . . .”

We find Kunselman distinguishable. Kunselman disapproved a charge which in effect required the jury to render a unanimous verdict of not guilty on the greater offense before considering the lesser included offense. The court in Kunselman distinguished that charge from the pattern instruction on lesser included offenses, which requires only a finding that the jurors do not believe beyond a reasonable doubt that the defendant is guilty of the greater offense. The charge in this case is more akin to the pattern instruction than to the one condemned in Kunselman. The charge here is not objectionable, because it correctly incorporates the “reasonable doubt” standard.

Judgment affirmed.

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

       270 Ga. 327, 328 (3) (510 SE2d 18) (1998).

       Id. at 332.

       See Helton v. State, 219 Ga. App. 826, 827 (1) (466 SE2d 690) (1996).

        House v. State, 236 Ga. App. 405, 408 (1) (512 SE2d 287) (1999).

       232 Ga. App. 323, 324 (1) (501 SE2d 834) (1998).

       Id., citing Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996).


author: Eldridge, Judge.

text:
    A99A2214.
    GOSIER v. THE STATE.
    (526 SE2d 890)
   Eldridge, Judge.

Appellant Gregory Gosier appeals from his conviction for violation of the Georgia Controlled Substances Act.

Viewed in a light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows the following: On September 2, 1997, Sergeant Calvin Little of the Quitman Police Department conducted an undercover drug operation. Officer Gail Crenshaw of the Colquitt County Drug Task Force was the undercover officer for the operation and was assisted by Willie James Knight, a confidential informant (“Cl”). Prior to sending Officer Crenshaw and the Cl out to attempt to purchase drugs, Sergeant Little searched both the vehicle that was to be used in the undercover drug operation and the Cl for contraband. Sergeant Lit-tie also installed video equipment in the vehicle.

During the undercover operation, Officer Crenshaw drove the vehicle, and the Cl sat in the front passenger seat. After leaving Sergeant Little, they drove directly to Laurel Street. At the corner of Laurel Street and Hall Street they observed the appellant sitting on the steps outside his home. Officer Crenshaw stopped the vehicle, and the Cl exited the vehicle and approached the appellant. After a short conversation, the Cl purchased cocaine from the appellant. Officer Crenshaw testified that she was able to observe the Cl during the entire time he purchased the cocaine from appellant.

After purchasing the cocaine, the Cl immediately returned to the vehicle and gave the cocaine to Officer Crenshaw. Officer Crenshaw placed the cocaine in a brown envelope and wrote on the front of the envelope the date, time, and location at which the buy occurred, the name of the appellant, and a description of the appellant. After making radio contact with Sergeant Little and informing him that a drug buy had been completed, Officer Crenshaw and the Cl met Sergeant Little without attempting to make any additional drug purchases. Officer Crenshaw turned the brown envelope which contained the cocaine over to Sergeant Little.

On September 5, 1997, Sergeant Little delivered the brown envelope containing the cocaine to Gail Paine, a forensic chemist with the Georgia Bureau of Investigation Crime Laboratory (“GBI Crime Lab”). Sergeant Little testified that the brown envelope containing the cocaine remained in his custody and control from the time he received it from Officer Crenshaw until he turned it over to the GBI Crime Lab for testing. Paine testified that after performing several tests on the substance in the brown envelope she concluded that it was, in fact, 0.1 gram of cocaine. Paine testified that the brown envelope and the cocaine remained in her custody and control from the time she received it from Sergeant Little until she brought it into court on the day of trial.

1. Appellant alleges that the trial court erred in overruling defense counsel’s objection to the admission of the brown envelope and the cocaine (State’s Exhibit 1) into evidence. Appellant argues that the alleged drug purchase in this case was not a proper “controlled buy.” Specifically, appellant argues that there is a disparity in the testimony of the State’s witness and the police report in the amount of time it took to complete the controlled buy. The police report stated that the controlled buy took 25 minutes. However, the Cl and Officer Crenshaw testified that the controlled buy was accomplished in less time. Appellant alleges that, because of the disparity in time, the Cl could have driven anywhere in town and purchased drugs from people other than the appellant.

We find appellant’s argument without merit. The evidence is uncontroverted that: (1) the Cl and the vehicle were searched for contraband; (2) the Cl and Officer Crenshaw were together or the Cl was in Officer Crenshaw’s view from the time they left Sergeant Little until they met him again after the drug buy was completed; (3) the Cl immediately turned the purchased cocaine over to Officer Cren-shaw when the Cl returned to the vehicle; (4) the controlled buy involving appellant was the only attempt Officer Crenshaw and the Cl made to buy drugs prior to turning the cocaine over to Sergeant Little; and (5) the drugs remained in Officer Crenshaw’s possession in the brown envelope until she delivered it to Sergeant Little. Hence, under the facts of this case, any discrepancy in the time the witnesses stated that it took to complete the drug buy and the time stated on the police report is irrelevant as to the admissibility into evidence of the brown envelope and the cocaine. Any discrepancy between the witnesses’ testimony and the police report went only to the weight and credibility of their testimony. It was a matter for defense counsel to show through cross-examination of the witnesses that the Cl had an opportunity to obtain the cocaine from another source and did so.

Further, “the admission of evidence is a matter which rests largely within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.’’ (Citations and punctuation omitted.) McBee v. State, 228 Ga. App. 16 (491 SE2d 97) (1997). There was not an abuse of the trial court’s discretion in admitting the brown envelope and the cocaine (State’s Exhibit 1) into evidence.

2. The appellant also contends that the trial court erred in denying his motion for a directed verdict of acquittal and that the evidence adduced at trial was insufficient to support his conviction.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt.

(Citations and punctuation omitted.) Cantrell v. State, 230 Ga. App. 693, 694-695 (1) (498 SE2d 90) (1998).

On appeal!,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]

Decided December 9, 1999.

George A. Bessonette, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, supra. Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense for which he was convicted. Id.

Judgment affirmed.

Blackburn, P. J, and Barnes, J., concur.

       Sergeant Little testified that a video recording of the drug purchase was not made because the wire that supplied power to the videocamera came loose.


author: Blackburn, Presiding Judge.

text:
    A99A2362.
    BRADY v. THE STATE.
    (527 SE2d 214)
   Blackburn, Presiding Judge.

Terry Wayne Brady appeals his conviction, following a jury trial, for the misdemeanor offense of driving while a habitual violator. OCGA § 40-5-58. Brady contends that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Brady] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence shows that Lieutenant Mark Sanford stopped Brady while he was driving his car on April 9, 1998. When asked for identification, Brady responded that his license had been suspended. Subsequent investigation showed that, on January 16, 1989, the Department of Public Safety revoked Brady’s license for a minimum of five years and declared him an habitual violator. Brady received notification of this revocation on June 30, 1989. A computer printout of the Department of Public Safety’s file on Brady’s driving violation includes no notation showing a renewal or reinstatement of Brady’s license after its revocation. To the contrary, it indicates that Brady repeatedly drove without a valid license after the initial revocation. Based on this evidence, the jury was authorized to determine that Brady never received a valid license after his original license was revoked in 1989.

Decided December 9, 1999.

Jeffrey L. Floyd, for. appellant.

Roger G. Queen, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

This Court has repeatedly held that the essence of the offense [of driving while an habitual violator] is driving after being notified that one may not do so because, by doing so, one is flouting the law even if one or more of the underlying convictions is voidable or void. The State is required to prove only that the accused was declared an habitual violator and operated a vehicle without having obtained a valid driver’s license.

(Citations and punctuation omitted.) Hollis v. State, 234 Ga. App. 269, 270 (1) (505 SE2d 837) (1998). In this case, as discussed above, there was evidence supporting the jury’s determination that Brady’s license was revoked in 1989, that it was never reinstated or renewed, and that Brady drove his car on April 9,1998, without a valid license. Accordingly, the elements of Brady’s crime were sufficiently shown, and his conviction must stand.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A2479.
    COX v. THE STATE.
    (526 SE2d 887)
   Blackburn, Presiding Judge.

Following a jury trial, William Harold Cox appeals from his convictions of one count of child molestation, two counts of incest, and three counts of aggravated child molestation. Cox contends that the trial court erred by: (1) denying his motion to quash the indictment which challenged the grand jury array; (2) overruling his challenge to the petit jury array; (3) excluding evidence that the victim was sexually active with her boyfriend; (4) admitting evidence of an incident between him and the victim which was not alleged in the indictment; and (5) denying his motion for acquittal asserting that the State had failed to prove venue.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Brown v. State, 237 Ga. App. 761 (516 SE2d 810) (1999). So viewed, the evidence shows that Cox is the stepfather of the victim, whom he adopted when she was ten years old. The Coxes have lived in Valdosta in Lowndes County since 1987. Cox’s stepdaughter testified that Cox began molesting her when she was 11 and that, when she was 12, he had intercourse with her in their home. In the summer of 1996, she and Cox had oral sex and intercourse on several occasions at Shoney’s Inn in Lake Park. She and Cox had oral sex and intercourse on several occasions in their home.

1. Cox moved to quash the indictment, challenging the array of both the grand jury and the petit jury. Cox contends that the method used to select the jury array is illegal because a jury commissioner can arbitrarily disqualify a citizen from jury service.

The selection of jurors is governed by OCGA § 15-12-40, which requires that the list of jurors represent a fair cross section of the eligible members of the community:

[T]he board of jury commissioners shall compile, maintain, and revise a trial jury list of upright and intelligent citizens of the county to serve as trial jurors and a grand jury list of the most experienced, intelligent, and upright citizens of the county to serve as grand jurors. In composing the trial jury list, the board of jury commissioners shall select a fairly representative cross section of the intelligent and upright citizens of the county. In composing the grand jury list, the board of jury commissioners shall select a fairly representative cross section of the most experienced, intelligent, and upright citizens of the county.

It is undisputed that the jury array represented a fair cross section of the community.

John Cowart, chairman of the Lowndes County Jury Commission, testified that the commission uses a copy of the voter registration file as its primary source list for both the trial and grand jury lists. Then, current members of the trial jury and grand jury box are removed as are convicted felons, citizens who have moved, and overage citizens who have requested removal by affidavit. Next, citizens who have requested to be on the list are added. This information is fed into a computer which generates the jury box. The jury commission reviews this list, and, if it approves of the individuals, this list becomes the trial and grand jury box. However, if a jury commissioner disapproves of any individual on the list, that person can be removed. A jury commissioner can also remove an individual from the initial source list.

Cowart further testified that, although this is the procedure, in fact, no individuals were removed from the list which resulted in the grand jury which indicted Cox or the petit jury before which Cox was tried.

Our Supreme Court has held that “[t]here is no requirement that the jury list include the name of every citizen of the county eligible for jury service. The list must include a fair cross-section of the eligible members of the community, not every eligible member of the community.” (Emphasis omitted.) Ingram v. State, 253 Ga. 622, 629 (1) (d) (323 SE2d 801) (1984), cert. denied, 473 U. S. 911 (105 SC 3538, 87 LE2d 661) (1985). Since the jury array included a fair cross section of the eligible members of the community, the trial court did not err in denying the motions challenging the jury array.

Cox’s reliance on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) is misplaced. That case did not deal with a challenge to the array, but concerned the use of peremptory challenges. Moreover, Cox does not argue that a distinctive group or a recognizable class in the community was excluded from the jury list, and in fact, no person was excluded from the jury list here. “The burden is upon the defendant challenging the array of a jury to establish a prima facie case that there has been systematic exclusion of a distinct class of citizens.” (Punctuation omitted.) Campbell v. State, 185 Ga. App. 3 (363 SE2d 293) (1987).

2. We cannot say the trial court abused its discretion by granting the State’s motion to exclude evidence that the victim told her physician in 1995 that she was sexually active with her boyfriend. Williams v. State, 237 Ga. App. 814 (2) (515 SE2d 875) (1999). At trial, Cox argued that the statement was a prior inconsistent statement, and the trial court allowed evidence that the victim told the physician she wás sexually active but that she did not mention Cox. Thus, the trial court excluded only evidence identifying her sexual partner.

Cox’s stepdaughter told her physician that she was sexually active with her boyfriend. This evidence regarding the identity of her sexual partner goes directly to the stepdaughter’s past sexual behavior and, under the facts of this case, is inadmissible under the Rape Shield Law, OCGA § 24-2-3: “In any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination.” Additionally, “this court has held that evidence of a prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or her preoccupation with sex.” Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990). Cox was tried on charges of molestation, incest, aggravated child molestation and rape (but not convicted of rape), so the trial court properly excluded this evidence, under the facts of this case.

3. Cox contends the trial court erred by admitting evidence that Cox had intercourse with his stepdaughter in April 1998 because that particular incident was not charged in the indictment. Cox characterizes this incident as “similar transactions” and asserts that the State failed to provide the proper notice under Uniform Superior Court Rule 31.3.

Cox objected to testimony by his stepdaughter that he had sexual intercourse with her on one occasion and attempted it on another while Cox, his stepdaughter and her boyfriend were in Savannah on a business trip in April 1998. The incident was reported when the three returned to Valdosta. This incident was properly admitted despite the lack of notice. “[TJhere is no requirement that the State comply with USCR 31.3 when presenting evidence of prior difficulties between the victim and the accused.” Buice v. State, 239 Ga. App. 52, 57 (520 SE2d 258) (1999).

Moreover, even though it was not charged in the indictment, the incident was properly admitted because an “indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the appropriate period of limitation, including the date alleged.” (Punctuation and footnote omitted.) Miller v. State, 226 Ga. App. 509, 511 (2) (486 SE2d 911) (1997); Stell v. State, 210 Ga. App. 662 (3) (436 SE2d 806) (1993); Robinson v. State, 202 Ga. App. 576, 577 (1) (415 SE2d 21) (1992); see Snider v. State, 238 Ga. App. 55 (2) (516 SE2d 569) (1999). Additionally,

where molestation, incest, or even rape occurs repeatedly over the period of the statute of limitation against the same victim in the same way, proof of such occurrence is not a prior similar offense but constitutes proof of the offense charged, and thus excludes such acts from the ambit of the rules governing the admission of similar transaction evidence.

(Footnote omitted.) Miller, supra at 512. This incident, one of a number of acts of molestation and intercourse with the victim during the limitation period, was properly admitted, and the trial court did not abuse its discretion by admitting this evidence. Williams, supra.

4. Cox moved for a directed verdict of acquittal on the grounds that the State had failed to prove venue. “Venue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt.” Graves v. State, 269 Ga. 772, 773 (1) (504 SE2d 679) (1998). “[C] ircumstantial as well as direct evidence may be used to establish venue. Venue is a question to be decided by the jury and its decision will not be set aside as long as there is any evidence to support it.” (Citation and punctuation omitted.) Jones v. State, 245 Ga. 592, 596 (2) (266 SE2d 201) (1980).

Decided December 9, 1999.

J. Converse Bright, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

The evidence at trial established venue beyond a reasonable doubt. Viewed in the light most favorable to the verdict, Cox’s stepdaughter testified that she had lived in Lowndes County for the past 11 years. She further testified that she and Cox, at various times, had sexual intercourse and oral sex in her bedroom, his bedroom, her bathroom, the living room, the laundry room, an old trailer in the yard of their home, a workshop in the yard of their home, and at Shoney’s Inn in Lake Park, a town located in Lowndes County. This testimony supports the jury’s determination that venue was appropriate in Lowndes County beyond a reasonable doubt. The trial court properly denied the motion for directed verdict.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


text:
    A99A2492.
    In re ESTATE OF JACKSON.
    (526 SE2d 884)
   Eldridge, Judge.

Ira Jackson appeals from the probate court’s order removing him as administrator of the estate of Willie R. Jackson, Sr. We find no error and affirm.

On March 23, 1998, Willie R. Jackson, Jr. filed a petition in the Probate Court of Fulton County to remove Ira Jackson as the administrator of his father’s (Willie R. Jackson) estate. At the time the petition was filed, Ira Jackson was an inmate of Maxwell AFB Federal Penitentiary, which is located in Montgomery, Alabama. A rule nisi was issued setting a hearing on the petition for August 6, 1998, and Ira Jackson was served with a copy of the petition and rule nisi.

At the hearing on August 6, 1998, Willie R. Jackson, Jr., counsel for Ira Jackson, and counsel for the surety were present. On August 7, 1998, the probate court entered an order finding that there were matters in dispute between the administrator and one or more of the heirs, and that the administrator had not shown why the disputed matters had not been resolved and why the administration of the estate had not been completed since 1988. In such interim order, the probate court ordered Ira Jackson to file a proposed final settlement of the estate within 30 days and directed that Ira Jackson would be removed as administrator if the proposed final settlement was not filed timely. Ira Jackson did not file a petition for final settlement of the estate until November 6, 1998. On December 7, 1998, Willie R. Jackson, Jr. filed a response challenging the final settlement.

After additional hearings were held on January 19, 1999, and May 3,1999, the probate court entered a final order on May 25,1999. In this order, the probate court found that Ira Jackson should be removed as administrator for the following reasons: “(1) he [had] failed to file timely and proper annual returns, and (2) he [had] failed to expeditiously and properly administer the estate [,]” and appointed Willie R. Jackson, Jr. as successor administrator. In addition, the probate court ordered that Ira Jackson should not receive any further payments, other assets, or attorney fees from this estate; Ira Jackson must re-deed the property back to the estate that he had previously deeded to himself within 30 days of the date of the order, and that if Ira Jackson complied with this provision, it would be considered that he had made an accounting and owed no money back to the estate; and if the Kennesaw property (which was still in the estate) was sold, the proceeds were to be held in the estate until September 1,1999, or further order of the court, to allow Ira Jackson to file documents showing additional amounts owing to him for the court’s consideration. It is from the entry of this order that Ira Jackson appeals. Held:

1. Ira Jackson alleges that the probate court erred in denying his motion for a continuance of the May 3, 1999 hearing so that he could attend after his proposed release date from prison.

Ira Jackson’s motion for continuance was not filed with the probate court until April 26, 1999, approximately one week before the May 3, 1999 hearing. In such motion, Ira Jackson alleged that he was incarcerated, and that he was due to be released from the custody of the Federal Bureau of Prisons on July 23, 1999. Ira Jackson requested a continuance of the hearing until after his anticipated July 23, 1999 release date so that he could personally appear and present documentary evidence.

“A motion for continuance of a trial is properly addressed to the ‘sound legal discretion’ of a trial judge, who is in control of the management of the case in court. OCGA § 9-10-167. [Cit.]” Gen. Motors Corp. v. Blake, 237 Ga. App. 426, 427 (515 SE2d 166) (1999). “The exercise of that discretion will not be disturbed by the appellate courts unless the discretion is manifestly abused. [Cit.]” Simmons v. Simmons, 265 Ga. 183, 184 (453 SE2d 696) (1995).

“In all cases, the party making an application for a continuance must show that he has used due diligence.” OCGA § 9-10-166. Ira Jackson and his counsel had the burden of ensuring that a writ of habeas corpus ad testificandum was filed in the proper court requesting that federal officers be compelled to produce Ira Jackson for the hearing. There is no evidence in the record that such a writ was filed. “One cannot complain of a ruling that his or her own procedure or conduct aided in causing.” (Citations and punctuation omitted.) Minor v. State, 232 Ga. App. 246, 247 (501 SE2d 576) (1998).

Further, there was no showing that Ira Jackson would, in fact, be released from prison on July 23, 1999; such release date was an anticipated release date. Additionally, when the motion for continuance was filed, the petition to remove Ira Jackson as administrator had been pending for over a year. Ira Jackson admits in his motion that the matter had “been pending for an inordinate period of time of [sic] and that much of the delay [was] the fault of [petitioner.” Under the facts of this case, we find no abuse of discretion in the denial of the motion for continuance.

2. Ira Jackson alleges that the probate court abused its discretion in removing him as administrator and appointing a successor administrator absent a showing of waste, mismanagement, or that he was unfit for the trust reposed in him.

Ira Jackson has failed to support or address this enumeration of error in his brief in any manner with either citation of authority or argument. Therefore, such enumeration of error is waived pursuant to Court of Appeals Rule 27 (c) (2). Because this issue is so essential to the case, however, this Court will address this enumeration in the exercise of its discretion.

The probate court, in the exercise of its discretion, may revoke a personal representative’s (or administrator’s) letters “[u]pon the petition of any person having an interest in the estate or whenever it appears to the probate court that good cause may exist to revoke the letters of a personal representative.” OCGA § 53-7-55 (l). The discretionary powers of the probate court under OCGA § 53-7-55 are “very broad and may be exercised whether the violation of law under consideration is a minor or major ‘matter.’ ” Lokey v. Lokey, 82 Ga. App. 171, 176 (60 SE2d 569) (1950); see also In re Estate of Dunn, 236 Ga. App. 211, 213 (511 SE2d 575) (1999).

OCGA § 53-7-67, which carries forward the provisions of former OCGA § 53-7-180, requires any personal representative (or administrator) of an estate, who is required to make an annual return, to file with the probate court each year, within 60 days of the anniversary of the date of his or her qualification, “a true and just verified accounting of the receipts and expenditures in behalf of the estate during the year preceding.” Here, in addition to finding that Ira Jackson had failed to expeditiously and properly administer the estate, the probate court specifically found that Ira Jackson failed to file timely and proper annual returns. The estate had been open since 1988. Therefore, there was no abuse of discretion in the probate court’s removal of Ira Jackson as administrator. See Holsenbeck v. Arnold, 75 Ga. App. 311 (43 SE2d 348) (1947).

3. In two separate enumerations of error, Ira Jackson alleges that: (1) the “[p]robate court erred in ordering [a]ppellant to re-deed the property back to the estate that he previously deeded to himself,” and (2) the “[p] róbate [cjourt abused its discretion in ordering that [a]ppellant shall not receive any attorney’s fees from the Estate as the cost[s] of litigation were not brought on by his own fault or misconduct.” In his brief, in violation of Court of Appeals Rule 27 (c) (1), Ira Jackson does not address these enumerations of error separately and as they are drafted, but consolidates both of these enumerations into the following argument:

[t]he portions of the court’s order requiring the retransfer of certain properties to the Estate and foreclosing recoupment of attorney’s fees and other expenses incurred on behalf of the estate must be vacated because the probate court did not enter findings of fact or conclusions of law sufficient to support them.

This argument is not reasonably encompassed in Ira Jackson’s enumerations of error as drafted.

On appeal!,] an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration. One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.

(Citations and punctuation omitted.) Bob v. Hardy, 222 Ga. App. 550, 554 (474 SE2d 658) (1996).

Decided December 9, 1999.

Arrington & Hollowell, Stanley E. Foster, for appellant.

Willie R. Jackson, Jr., pro se.

Ira Jackson, having failed to support or address these enumerations of error, as drafted, in his brief with either citations of authority or argument, such enumerations of error are waived pursuant to Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       Amendments to the petition for final settlement were filed on November 12,1998, and January 29, 1999.

       28 USCA § 2241 (c) (5); Clark v. Hendrix, 397 FSupp. 966 (N.D. Ga. 1975).

       OCGA § 53-7-55 became effective January 1, 1998, to the extent that no vested rights of title, year’s support, succession, or inheritance were impaired and carries forward the provisions of former OCGA § 53-7-148. Ga. L. 1997, pp. 1352, 1353, § 1; Ga. L. 1996, pp. 504, 623, § 17; OCGA § 53-7-55, comment, p. 558.


author: Miller, Judge.

text:
    A99A1348.
    CITY OF MACON et al. v. MACRIVE CONSTRUCTION, INC. et al.
    (525 SE2d 418)
   Miller, Judge.

Homeowners Gaughfs and Rubins sued Macrive Construction, Inc., Rivers Construction Company, and related parties for nuisance created by an inadequate pipe in a drainage ditch located on the homeowners’ property which caused flooding during heavy rains. The City of Macon reconstructed the drainage ditch and jointly sued to recover the cost of repair. At the close of evidence at trial, the appel-lees successfully moved for a directed verdict on the grounds that nuisance is not the proper cause of action and that even if it were a nuisance, the statute of limitation had run. The City of Macon and the homeowners appeal. Because the statute of limitation had run, we affirm.

A directed verdict can be upheld only where all the evidence demands that verdict, which requires a de novo review. Construed in favor of the appellants, the evidence showed that Macrive Construction installed a drainage pipe too small to handle the drainage of the two lots on which it was installed. The Rubins purchased one of the lots in 1984, and another family purchased the neighboring lot that same year. In the winter of 1985-1986 and several times each winter thereafter, flooding occurred after heavy rains and caused damage to both lots. The Gaughfs bought the neighboring lot from the other family in 1987.

After complaining to appellees to no avail, the homeowners sought help from the City of Macon, which reconstructed the drainage pipe to allow adequate flow and prevent further flooding. The City of Macon, the Rubins, and the Gaughfs filed suit in November 1990.

Decided November 17, 1999

Reconsideration denied December 10, 1999.

James P. Langstaff, Charles L. Ruffin, for appellants.

Hall, Bloch, Garland & Meyer, John F. Kennedy, John E. Hall IV, for appellees.

Assuming for the sake of argument that this was a nuisance, the action was barred by the four-year statute of limitation. The parties brought suit in November 1990, more than four years after the flooding began. Macko v. City of Lawrenceville held under nearly identical facts that the four-year statute of limitation on any alleged nuisance caused by installing inadequate drainage pipes began to run the year the property first flooded. Because no evidence showed that the developer-defendant took any action, subsequent to the year of the first flooding, that increased the flooding problem, Macko rejected the argument that repeated flooding caused the situation to be a continuing nuisance.

Similarly, here the installation of the drainage system was completed prior to the winter of 1985-1986, the time of the first flooding. “As such, any nuisance created by the allegedly inadequate system was complete and apparent [by the spring of 1986], more than four years prior to the filing of this suit.” Since no evidence showed the appellees took any action subsequent to 1985 that increased the flooding problem, no continuing nuisance was shown.

The court did not err in granting the directed verdict in favor of the appellees.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Carden v. Burckhalter, 214 Ga. App. 487, 488-489 (1) (b) (448 SE2d 251) (1994).

       See OCGA § 9-3-30.

       231 Ga. App. 671, 674 (3) (499 SE2d 707) (1998).

       Id.


text:
    A99A1710.
    MILLER v. THE STATE.
    (527 SE2d 571)
   Miller, Judge.

Indicted for numerous offenses and represented by two attorneys, Christopher Miller negotiated a sentence and charge reduction with the State and pled guilty to two offenses (burglary and robbery by intimidation). After a detailed inquiry to ensure Miller was acting voluntarily, the court accepted the guilty plea and entered the negotiated sentence. Two days later Miller moved to withdraw his guilty plea, arguing the plea was involuntary because (i) as an eighteen-year-old with no counsel from his family he had been scared and overwhelmed by the process, and (ii) he had received only one day to consider the State’s offer. Following a hearing, the court denied the motion.

On appeal Miller asserts two errors: (1) in light of his age, distraught psychological condition, and lack of time to consider the plea, the court erred in finding the plea was voluntary; and (2) the court erred in denying the motion to withdraw the plea where the transcript showed that, in seeming contradiction to the court’s pronouncement, the State said the plea agreement would be violated if Miller sought a sentence reduction from the Sentence Review Panel. Because evidence supported a finding of voluntariness, and because Miller did not raise the sentencing panel issue below, we affirm.

1. Once a defendant challenges the validity of his guilty plea, the burden falls on the State to show that the defendant intelligently and voluntarily entered the plea. The query is whether the defendant freely and voluntarily entered the plea with an understanding of (i) the charges against him and (ii) the consequences of his plea. The State may meet its burden through use of the transcript of the guilty plea hearing or through use of extrinsic evidence. We will not disturb the trial court’s ruling on the question absent a manifest abuse of discretion.

Here the transcript of the guilty plea hearing reflected a careful inquiry by the court showing that Miller fully understood the nature of the charges, the consequences of his plea, and the rights he was relinquishing. Miller also testified that he was acting freely and voluntarily without fear of coercion or hope of benefit (other than the negotiated sentence), and he admitted to the facts underlying the two offenses. True, Miller’s attorneys later argued in the motions to withdraw the plea that his age, lack of family advice, psychological condition, and short time frame coerced him. But this was a matter for the trial court to decide, and since evidence supported its ruling, it did not manifestly abuse its discretion in concluding that Miller entered the plea voluntarily and freely with the requisite understanding.

Decided December 10, 1999.

Mark S. Martin, for appellant.

Kelly R. Burke, District Attorney, A. James Rockefeller, Assistant District Attorney, for appellee.

2. After the court advised Miller that he could have his sentence reviewed by the Sentence Review Panel, the State announced that in its opinion a sentence review application would violate the plea agreement. Miller contends that this required the court to allow him to withdraw his guilty plea.

But Miller failed to raise this argument below, either in his written motions to withdraw his plea or at the hearing on his motions. Grounds for allowing a guilty plea withdrawal, which are not raised below, may not be raised for the first time on appeal.

Judgment affirmed.

Pope, P. J., and Smith, J, concur.

        King v. State, 270 Ga. 367, 369 (1) (509 SE2d 32) (1998); Beck v. State, 222 Ga. App. 168 (473 SE2d 263) (1996).

        King, supra, 270 Ga. at 369 (1); Goodman v. Davis, 249 Ga. 11, 13 (1) (287 SE2d 26) (1982).

        King, supra, 270 Ga. at 369 (1); Roberts v. Greenway, 233 Ga. 473, 475 (1) (211 SE2d 764) (1975).

        Cunningham v. State, 239 Ga. App. 889, 890 (1) (522 SE2d 480) (1999); Craft v. State, 234 Ga. App. 305, 307 (1) (506 SE2d 663) (1998).

       Compare Rowland v. State, 72 Ga. App. 793 (35 SE2d 372) (1945).

        Overby v. State, 150 Ga. App. 319, 320 (4) (257 SE2d 386) (1979).


text:
    A99A1847.
    FOX v. THE STATE.
    (527 SE2d 216)
   Miller, Judge.

Stephen Fox pled guilty to two counts of robbery by intimidation and was sentenced by Chatham County Superior Court in February 1998. In April 1999 he moved the court to withdraw his guilty plea and to amend his sentence. The court dismissed both motions on the grounds that they were filed outside the term of court in which sentence was entered. Despite acknowledging that controlling authority mandated the dismissal of his motions, Fox contends the court erred. We disagree and affirm.

Fox clearly filed the motions outside the term in which the court imposed sentence.* “The superior court’s jurisdiction to entertain a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction was rendered.” Similarly, “[a] trial court is without jurisdiction to modify a sentence after the expiration of the term of court during which the sentence was entered.” As there is no contention that the sentence was void, the trial court did not err in dismissing both motions.

Decided December 10, 1999.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       See OCGA § 15-6-3 (17).

       (Citations and punctuation omitted.) Foskey v. State, 232 Ga. App. 303 (501 SE2d 856) (1998); see Downs v. State, 270 Ga. 310 (509 SE2d 40) (1998).

       (Citation omitted.) Shaw v. State, 233 Ga. App. 232, 233 (504 SE2d 18) (1998); see Penney v. State, 236 Ga. App. 442 (511 SE2d 275) (1999).

       Cf. id.


author: Barnes, Judge.

text:
    A99A1450.
    YOUNG v. TURNER HERITAGE HOMES, INC.
    (526 SE2d 82)
   Barnes, Judge.

Homer L. Young appeals the grant of summary judgment to Turner Heritage Homes, Inc. (“Turner Heritage”) on his claims for punitive damages, attorney fees, and expenses of litigation. Young’s claims against Turner Heritage for negligent construction and breach of warranty remain pending below.

This appeal arises from a contract between the parties under which Turner Heritage would build a house that Young and his wife would purchase upon completion. Although Young was dissatisfied with the progress of the construction, the parties ultimately closed on the sale. Thereafter, however, Young sued Turner Heritage for breach of contract, damages, and attorney fees. The complaint alleged counts of breach of contract because Turner Heritage’s negligent and deficient construction breached the seller’s limited warranty in the contract, active or constructive fraud, punitive damages based on the fraud, and attorney fees and expenses of litigation under OCGA § 13-6-11 because Turner Heritage signed the contract in bad faith.

After Turner Heritage filed its answer, it moved for summary judgment on Young’s claims for fraud, punitive damages, and attorney fees. Turner Heritage alleged that the evidence did not show that it committed fraud and that in any event Young was not entitled to assert a fraud claim because Young had not sought to rescind the contract. See Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 523 (1) (448 SE2d 271) (1994). Thus, Turner Heritage contended that Young was not entitled to an. award of punitive damages or attorney fees. Ultimately, the trial court granted summary judgment to Turner Heritage on Young’s claims of fraud, punitive damages, and attorney fees and designated the judgment as final pursuant to OCGA § 9-11-54 (b).

Thereafter, Young filed a notice of appeal from the grant of summary judgment to Turner Heritage on these claims. Young asserts that the trial court erred by granting summary judgment on his claims for punitive damages and attorney fees. No error, however, was enumerated regarding the grant of summary judgment on his fraud claim.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

2. Because the trial court’s order designated its grant of summary judgment as final under OCGA § 9-11-54 (b), Young was required to appeal any adverse rulings in that order within 30 days of the final judgment’s entry. OCGA § 5-6-38. The normal rules that would allow a direct appeal from an order granting summary judgment to be taken either within 30 days of rendition of the judgment or after the rendition of the final judgment in the case (see Studdard v. Satcher, Chick &c., Inc., 217 Ga. App. 1, 2 (456 SE2d 71) (1995), do not apply. Jarallah v. Aetna Cas. &c. Co., 199 Ga. App. 592, 593 (405 SE2d 510) (1991). If an appellant fails to file a notice of appeal within 30 days of such an order, the right to review the order is lost. Id.

In this instance, Young has not enumerated as error the grant of summary judgment to Turner Heritage on his fraud claim. Therefore, any claim of error regarding that grant of summary judgment has been abandoned. Matters not enumerated as error will not be considered on appeal. Rider v. State, 226 Ga. 14, 15 (2) (172 SE2d 318) (1970). Consequently, because he did not appeal that ruling as required by OCGA § 5-6-38 (a), that judgment is final.

This ruling has increased significance in this case because in the absence of a fraud claim, Young’s breach of contract claim will not support an award of punitive damages. OCGA § 13-6-10; Trust Co. Bank v. C & S Trust Co., 260 Ga. 124, 126 (1) (b) (390 SE2d 589) (1990). Further, “[pjunitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award.” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3) (b) (365 SE2d 827) (1988).

Decided November 22, 1999

Reconsideration denied December 13, 1999

Divine, Dorough & Sizemore, Kermit S. Dorough, Jr., for appellant.

Therefore, in the absence of an allegation in the complaint that would support the award of punitive damages, Young’s enumeration concerning the grant of summary judgment on his claim for punitive damages is moot. For errors to require reversal, they must be harmful. See OCGA § 9-11-61; Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892) (1990).

In this appeal, even if the trial court erred by granting summary judgment on Young’s claim for punitive damages, punitive damages can no longer be awarded because the only claim that would support the imposition of punitive damages has been removed from the case. Therefore, this enumeration of error is moot. Merrill v. Eiberger, 198 Ga. App. 806 (403 SE2d 91) (1991).

3. Young’s claim for attorney fees and expenses of litigation, however, is not affected by his failure to appeal the fraud claim, because this count in the complaint alleged a separate claim for bad faith in the execution of the contract. Turner Heritage’s motion on this claim was based upon an allegation that the evidence shows it was acting in good faith in this matter. This allegation is not an appropriate basis for resolving the issue because “questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally questions for the jury to decide.” (Citation and punctuation omitted.) American Med. Transport Group v. Glo-An, Inc., 235 Ga. App. 464, 467 (3) (509 SE2d 738) (1998). Even though some evidence may support Turner Heritage’s contention, if some evidence also supports a claim under OCGA § 13-6-11, the issue must be submitted to the jury. City of Warner Robins v. Holt, 220 Ga. App. 794, 796 (1) (c) (470 SE2d 238) (1996). Because we find evidence from which, if believed, a jury could infer that Turner Heritage executed the contract in bad faith, i.e., promising to correct certain defects identified by Young and then refusing to do so after the closing, failing to comply with minimum building codes, and laying the slab on uncompacted topsoil, we must reverse the trial court on this issue.

The grant of summary judgment on the punitive damages claim is affirmed, but the grant of summary judgment on the claim for attorney fees and expenses of litigation is reversed.

Judgment affirmed in part and reversed in part.

Blackburn, P. J, and Ellington, J, concur.

Langdale, Vallotton, Linahan & Threlkeld, William P. Langdale III, Hodges, Erwin, Hedrick & Coleman, William A. Erwin, for appel-lee.


text:
    A99A2014.
    A99A2015, A99A2016.
    JACOBS et al. v. LITTLETON. JACOBS v. CITY OF WAYCROSS et al. (two cases).
    (525 SE2d 433)
   Blackburn, Presiding Judge.

These related appeals arise out of the arrest of Sherry Kay Jacobs and Daniel Dixon Jacobs by Mary E. Littleton, a police officer for the City of Waycross. Sherry Jacobs appeals the grant of summary judgment to Mary Littleton in Case No. A99A2014, and the Jacobses appeal the grant of summary judgment to the City Defendants in Case Nos. A99A2015 and A99A2016 on their claims for personal injuries suffered in the arrest.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewing the evidence, the record shows that on September 12, 1995, Mary Littleton was an employee of the Waycross Police Department. On that evening, Officer Littleton was involved in the arrest of the Jacobses following an incident at a school board meeting. An altercation ensued, during which Littleton and the Jacobses allegedly suffered injuries. Two lawsuits arose out of these events.

Case No. A99A2014

In the first lawsuit, Officer Littleton filed suit against the Jacobses to recover for her personal injuries. The Jacobses answered on February 1, 1996, and Sherry Jacobs counterclaimed for her personal injuries. In February 1997, Littleton filed a motion for summary judgment on Sherry Jacobs’ counterclaim. In March 1998, while Littleton’s motion for summary judgment was pending, the Jacobses filed an amendment to the counterclaim which asserted a claim for abusive litigation, OCGA § 51-7-80 et seq., and a claim for Daniel Jacobs’ personal injuries. In April 1998, the trial court granted Littleton’s motion for summary judgment.

In July 1998, Littleton filed a second motion for summary judgment on the amended counterclaim. On January 8, 1999, the trial court granted that motion as well, finding that the amendment to the counterclaim was in fact a compulsory counterclaim which Daniel Jacobs had not timely filed. In addition, the trial court determined that any claims asserted by Sherry Jacobs were previously dismissed by the prior order granting summary judgment.

1. In Sherry Jacobs’ sole enumeration of error she contends that the trial court erred in granting summary judgment on the abusive litigation claim set forth in her amended counterclaim. However, an action for abusive litigation pursuant to OCGA § 51-7-80 et seq. cannot be brought until after the final termination of the proceeding. OCGA § 51-7-84 (b). Here, Jacobs’ assertion of the action in her counterclaim was premature since it was brought before the termination of Littleton’s action, so the grant of summary judgment was improper. See Stocks v. Glover, 220 Ga. App. 557, 559 (2) (469 SE2d 677) (1996) (premature filing of abusive litigation claim is properly dismissed). The January 8, 1999 order of the trial court is hereby vacated only with respect to the grant of summary judgment to Lit-tleton on the abusive litigation claim asserted by Sherry Jacobs, and that claim is dismissed without prejudice.

2. Littleton’s motion to dismiss Sherry Jacobs’ appeal is denied. See OCGA § 5-6-34 (a) (1).

Case Nos. A99A2015 and A99A2016

In the second lawsuit arising out of the Jacobses’ arrest, the Jacobses filed suit on September 12, 1997, against the City of Way-cross, the Waycross Police Department and various individual city employees, including Mary Littleton (City Defendants). The suit asserted claims of: (1) negligence in the performance of an arrest and the subsequent investigation and report; (2) negligence in protecting prisoners and providing medical care; (3) negligence in the securing of evidence; (4) false arrest; (5) false swearing; (6) false charges; (7) false evidence; and (8) use of excessive force.

The trial court granted summary judgment to the City Defendants, finding that the Jacobses’ claims were barred because the Jacobses failed to provide ante litem notice as required by OCGA § 36-33-5. In addition, the trial court found the claims were barred because they should have been raised as compulsory counterclaims in the suit previously brought by Littleton.

3. (a) The Jacobses contend that the trial court erred by granting summary judgment to the individual city employee defendants based on a failure to give ante litem notice. We agree that ante litem notice is not required. OCGA § 36-33-5 (a) provides:

No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) of this Code section.

(Emphasis supplied.) OCGA § 36-33-5 is in derogation of the common law and must be strictly construed. Hicks v. City of Atlanta, 154 Ga. App. 809 (270 SE2d 58) (1980). The statute requires notice only if the claim is against the municipality; it does not require ante litem notice to individual employees of a municipality. Thus, although the trial court properly granted summary judgment to the City of Way-cross and the Waycross Police Department due to the Jacobses’ failure to provide ante litem notice, it improperly granted summary judgment to the individual city employee defendants on this ground. Accord Whipple v. City of Cordele, 231 Ga. App. 274, 275 (2) (499 SE2d 113) (1998); Brown v. City of Chamblee, 211 Ga. App. 145, 148 (2) (438 SE2d 396) (1993).

(b) In Case No. A99A2016, Sherry Jacobs contends that her mental incapacity suspended the period for the ante litem notice to the City of Waycross and the Waycross Police Department. Sherry Jacobs averred by affidavit that, due to brain surgery in 1985, she was “partially functioning” when her claims accrued, thus triggering the provisions of OCGA § 9-3-90:

Minors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.

If Sherry Jacobs was mentally incompetent within the meaning of the statute, the ante litem period would be tolled. Lowe v. Pue, 150 Ga. App. 234 (257 SE2d 209) (1979). The test to be applied is whether the one claiming the disability has such “unsoundness of mind or imbecility as to incapacitate one from managing the ordinary business of life.” (Punctuation omitted.) Id. The trial court can determine as a matter of law that the tolling statute does not apply. Hickey v. Askren, 198 Ga. App. 718 (403 SE2d 225) (1991), cert. denied, 198 Ga. App. 898.

The burden was on Sherry Jacobs to prove the incapacity which she alleged tolled the running of the statute, and her self-serving affidavit does not suffice. Foster v. Cohen, 203 Ga. App. 434, 436 (1) (417 SE2d 61) (1992). Although Sherry Jacobs averred mental incapacity, her own deposition testimony rebuts that she was incapable of managing her day-to-day affairs. See Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452, 460 (d) (504 SE2d 514) (1998). Sherry Jacobs testified that, following her brain surgery in 1985, she was not treated by any mental health professionals and that her only physical limitation was an inability to run. Moreover, she was employed as a receptionist in an office and later in a store during this period. Sherry Jacobs’ deposition testimony did not establish her mental incapacity. Accordingly, under the facts of this case, the trial court did not err by finding the tolling statute was not triggered and by granting summary judgment to the City of Waycross and the Waycross Police Department based on Sherry Jacobs’ failure to give ante litem notice.

4. The trial court erroneously determined that all the Jacobses’ claims were compulsory counterclaims in the suit filed by Officer Lit-tleton, and, therefore, the grant of summary judgment to all the City Defendants on this basis was improper.

OCGA § 9-11-13 (a) provides:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

A claim arises out of the same transaction or occurrence if there exists a logical connection between the claims of the parties. Aycock v. Calk, 228 Ga. App. 172 (491 SE2d 383) (1997); Myers v. United Svcs. Auto. Assn., 130 Ga. App. 357 (203 SE2d 304) (1973). The Jacobses’ claims against Officer Littleton, which arose out of their arrest and related proceedings, were logically connected to the suit filed against the Jacobses by Officer Littleton. Thus, the Jacobses had a compulsory counterclaim against Officer Littleton under OCGA § 9-11-13 (a), which they instead asserted in an independent action against Littleton, the City of Waycross and the other City Defendants. Having failed to assert that compulsory counterclaim, the Jacobses are estopped from asserting the claim against Officer Littleton. Ay cock, supra.

Decided November 18, 1999

Reconsideration denied December 13, 1999.

George L. Hoyt, Jr., for appellants.

Daniel D. Jacobs, pro se.

Sherry K. Jacobs, pro se.

Helms & Helms, Jack J. Helms, Jr., for appellees.

With regard to the City of Waycross and the other City Defendants who were not parties to the suit by Littleton, under OCGA § 9-11-13 (h), the Jacobses could have asked the trial court to add them as additional parties in the counterclaim. However, the trial court had the discretion to deny adding the parties. Thus, since the City of Waycross and other City Defendants were not parties to the suit filed by Littleton, estoppel does not apply. Id.

Summary judgment as to the claim against Officer Littleton is affirmed. Summary judgment as to the claim against the other individual city employee defendants is reversed. While the trial court’s grant of summary judgment to the City of Waycross and the Way-cross Police Department on this ground was improper and is reversed, our holding in Division 3 renders this error moot.

Judgment affirmed in part and vacated in part in Case No. A99A2014. Judgments affirmed in part and reversed in part in Case Nos. A99A2015 and A99A2016.

Eldridge and Barnes, JJ, concur.

       The City of Waycross, Waycross Police Department, Mary E. Littleton, John Daniel Hampton, Jr., Officer D. Cameron, Natalie Gallman Norris, Lisa O’Berry, Officer Middleton, and Detective Laurence Etheridge, collectively “the City Defendants.”

       Daniel Jacobs has not appealed the dismissal of his counterclaim. Sherry Jacobs has not enumerated any error with respect to the April 1998 order granting summary judgment to Littleton. Court of Appeals Rule 22 (d).

       However, a claim against a state employee under the Georgia Tort Claims Act is subject to dismissal for failure to give ante litem notice. Horton v. Whitaker, 238 Ga. App. 312 (518 SE2d 712) (1999).


text:
    A99A1830.
    HANSFORD v. BURNS et al.
    (526 SE2d 896)
   Ellington, Judge.

Derrick Hansford sued Ronald Gatskie, R & G Services, Inc. and Joan and Ben Burns for various torts and alleged violations of the Commercial Code in connection with a series of secured transactions. The trial court granted the defendants’ motions for summary judgment and denied Hansford’s motion for summary judgment. Hans-ford appeals. Because we conclude that material questions of fact remain, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. •

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the record shows that on March 31, 1994, Joan Burns sold two dry cleaning businesses to Hansford for $150,000. Hansford paid Burns $50,000 in cash and gave her an installment note for $100,000 secured by the businesses’ assets (“the first Hansford note”). Burns filed UCC-1 financing statements to perfect her security interest in the businesses. As the broker for both Joan Burns and Hansford, Ben Burns earned a commission of $10,000 which Hansford paid in full.

On July 21, 1995, Hansford sold the businesses to Gatskie for $160,000. As the broker for both Hansford and Gatskie, Ben Burns earned a commission of $16,000 which Hansford paid in cash. Gat-skie paid Hansford $80,000 in cash and gave Hansford an installment note for $80,000 (“the Gatskie note”). As part of the same transaction, Hansford paid Joan Bums $64,000 which left a principal balance of $8,507.94 on the $100,000 note. Hansford gave Burns an installment note for $8,507.94 (“the second Hansford note”) which was secured by an assignment of the $80,000 Gatskie note. In the assignment of the Gatskie note, Gatskie was directed to make payments on his $80,000 debt to Hansford directly to Burns in satisfaction of Hansford’s debt to Burns. Hansford filed UCC-1 financing statements to perfect his security interest in the businesses. Burns never filed UCC-3 forms showing that her security interest in the businesses had terminated. See OCGA § 11-9-404.

As directed, Gatskie made a number of payments to Joan Burns. Gatskie then defaulted on his debt to Hansford, leaving a principal balance of $5,771.59 on the second Hansford note. Hansford did not cure the default. On December 5, 1995, Burns sent Hansford a notice of default on the second Hansford note. On January 17, 1996, Burns filed suit on the second Hansford note, seeking the outstanding principal balance of $5,771.59 plus interest. On May 13, 1996, Hansford filed a petition for personal bankruptcy under Chapter 13 of the Bankruptcy Code. Hansford’s bankruptcy plan was confirmed on June 27,1996. On July 17, 1996, Burns sent Hansford a notice which stated that he was in default on the second Hansford note and that if the debt were not paid within ten days, she would “commence foreclosure on the Security Agreement, and taking [sic] back the collateral which [was] secured by the UCC Financing Statement.” On September 10, 1996, Burns sent a notice to Hansford and Gatskie which stated that because they were in default on the July 21,1995 security agreement, “and pursuant to O.C.G.A. Section 11-9-504,” Burns had “exercised her right to retake the collateral” and that unless the collateral were redeemed by September 25, Burns would “proceed to dispose of the collateral at a private sale.”

On September 26, 1996, R & G Services, which was wholly owned by Gatskie, paid Joan Burns $9,855.31. In the “contract for sale of business,” Burns warranted that she had marketable title to the assets of the businesses tree and clear of any other indebtedness. R & G Services immediately sold the businesses to Sarah Slaughter for $135,000. As the broker for Gatskie, Ben Burns earned a commission of $7,250. A few weeks later, Joan Burns filed UCC-3 forms “by assignment” to terminate Hansford’s security interest in the businesses.

1. The trial court erred in granting Joan Burns’ motion for summary judgment on Hansford’s claim that she wrongfully failed to terminate her security interest in the businesses.

The first Hansford note was paid in full when Hansford tendered, and Joan Burns accepted, a new note for the balance. Because there was no outstanding secured obligation under the first Hansford note, OCGA § 11-9-404 required Bums to file UCC-3 forms reflecting the termination of her security interest in the collateral (the businesses) within 60 days. There was no evidence before the trial court that Burns filed UCC-3 forms within the time allowed. Therefore Burns was not entitled to judgment as a matter of law on Hansford’s claim for OCGA § 11-9-404 statutory and actual damages.

2. The trial court erred in granting summary judgment to Joan and Ben Burns on Hansford’s claim for damages arising from the private sale of the businesses which were the collateral for the Gatskie note. The trial court concluded that Bums’ foreclosure on the businesses was authorized by OCGA § 11-9-505. Under the procedure of strict foreclosure, a creditor in possession may retain the collateral in satisfaction of the debt. OCGA § 11-9-505 (2). To proceed under OCGA § 11-9-505 (2), a creditor must give notice to the debtor of its proposal to retain the collateral in satisfaction of the debt. Id. The debtor then has 21 days to object to that proposal. Id. If the debtor objects, then the creditor must dispose of the collateral in compliance with OCGA § 11-9-504, that is, in a commercially reasonable manner. Id. This procedure protects the debtor’s right to mitigate his loss when the collateral is worth more than the debt. Chen v. Profit Sharing Plan &c., 216 Ga. App. 878, 880 (1) (456 SE2d 237) (1995).

In this case, the trial court specifically found that Burns “complied with the notice provisions of OCGA § 11-9-505 (2).” Even assuming that the assignment of the Gatskie note gave Burns the authority to foreclose on the businesses, the record does not support the trial court’s finding. Burns never gave Hansford notice that she intended to retain the collateral in satisfaction of the debt. “The written notice required by OCGA § 11-9-505 (2) must clearly state the creditor’s proposal to retain the collateral in satisfaction of the debt and must notify the debtor that he has 21 days in which to raise an objection to such a proposal.” (Citations omitted.) Chen, 216 Ga. App. at 880 (1).

In this case, the July 17, 1996 notice letter referred to “taking back the collateral” but did not say that retention of the collateral would be in satisfaction of the debt, nor did the letter refer specifically to OCGA § 11-9-505. The September 10, 1996 notice invoked OCGA § 11-9-504 and indicated that Burns had retaken the collateral and intended to sell it at a private sale. Again, the notice did not say that retention of the collateral would be in satisfaction of the debt, nor did it refer specifically to OCGA § 11-9-505. Because Burns has identified no communication which would constitute notice that the collateral would be retained in satisfaction of the debt, she did not act under the authority of OCGA § 11-9-505. Anderson, Uniform Commercial Code, Vol. 9A, § 9-505:37, p. 677. Therefore, Burns never acquired fee simple title to the businesses and could not sell them to Gatskie as she purported to do. MTI Systems Corp. v. Hatziemanuel, 542 NYS2d 710, 711 (1989) (secured party may become the legal owner of collateral after default only by retaining the collateral in satisfaction of the debt in compliance with UCC § 9-505 (2) or by purchasing the collateral at a sale).

Because Burns failed to comply with the strict foreclosure procedure provided by OCGA § 11-9-505, the foreclosure was governed by OCGA § 11-9-504. Chen, 216 Ga. App. at 880 (1). Any disposal of collateral under OCGA § 11-9-504 must be commercially reasonable. OCGA § 11-9-504 (3). Generally, “the issue of commercial reasonableness is to be decided by the trier of fact.” ITT Terryphone Corp. v. Modems Plus, 171 Ga. App. 710, 713-714 (3) (320 SE2d 784) (1984). In this case, the secured party (Joan Burns) sold the collateral at a private sale, and within hours the buyer (Gatskie) resold the collateral to a third party for more than 13 times what he paid. There was no evidence before the trial court that Burns solicited more than one buyer. Hansford carried his burden in opposing summary judgment of identifying evidence that the sale of the collateral was not commercially reasonable.

Where a sale of collateral does not comply with OCGA § 11-9-504, the debtor can recover actual damages under OCGA § 11-9-507 for any loss caused by an inadequate sale price. Willis v. Healthdyne, 191 Ga. App. 671, 673 (1) (382 SE2d 651) (1989). Because Hansford raised a question of fact regarding whether Bums’ disposition of the collateral was commercially reasonable, the trial court erred in granting Burns’ motion for summary judgment on Hansford’s claim for damages from the sale of the collateral.

3. The trial court erred in granting summary judgment to Gat-skie and R & G Services on Hansford’s suit on the Gatskie note. The trial court concluded that Hansford failed to properly disclose the existence of the Gatskie note to the bankruptcy court. Applying Byrd v. JRC Towne Lake, 225 Ga. App. 506 (484 SE2d 309) (1997), the trial court ruled that because Hansford failed to list the Gatskie note in his Chapter 13 petition, he was judicially estopped from pursuing that claim later.

The record, however, does not support the trial court’s conclusion that as a matter of law Hansford failed to disclose the claim. Before filing his Chapter 13 petition, Hansford transferred the Gatskie note to a corporation, HanJa, Inc. Before Hansford’s Chapter 13 plan was confirmed on June 27, 1996, Hansford filed an amendment to the plan which showed that within one year of filing for bankruptcy Hansford had sold a business for $80,000 cash and a promissory note of $80,000 which was in default. On February 5, 1998, after Hans-ford’s Chapter 13 plan was confirmed, but before all payments under the plan were completed, the bankruptcy court conducted a hearing on Hansford’s motion to employ certain counsel. After a discussion about the Gatskie note, the bankruptcy court suggested that the note should be conveyed back to Hansford and any proceeds distributed to Hansford’s creditors. On February 9, 1998, HanJa, Inc. transferred the Gatskie note to Hansford. On February 13, 1998, Hansford filed an amendment to his Chapter 13 petition, adding the Gatskie note to the schedule of debtor’s personal property as an account receivable. All of these events, which were documented in the record before the trial court, occurred before the bankruptcy case was concluded. Therefore, the trial court erred in concluding that Hansford did not disclose his claim under the Gatskie note “in the bankruptcy case” as required by Byrd. “Under such circumstances, it cannot be said as a matter of law that plaintiff intentionally attempted to manipulate and deceive the court system, or that he was attempting to make a mockery of the system through inconsistent pleading.” Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996). Accordingly, the trial court erred in applying the doctrine of judicial estop-pel to bar Hansford’s suit on the Gatskie note.

Decided December 13, 1999.

Weinstock & Scavo, Michael Weinstock, Jeffrey P. Yashinsky, Elizabeth M. Jaffe, Mark I. Sanders, for appellant.

Joe M. Harris, Jr., John W. Mrosek, for appellees.

Judgment reversed.

Andrews, P. J, and Ruffin, J., concur.

       Hansford initially bought the businesses with a partner, Vincent Cumberbatch. Cumberbatch later abandoned his share to Hansford, and Hansford took over sole responsibility for the note.

       The amount paid represented $5,771.59 principal balance and $484.22 interest on the second Hansford note plus $3,099.50 attorney fees.


author: Pope, Presiding Judge.

text:
    A99A1452.
    MECHANICAL EQUIPMENT COMPANY v. HOOSE et al.
    (523 SE2d 575)
   Pope, Presiding Judge.

Plaintiff Celeste Hoose filed suit against defendant Mechanical Equipment Company for injuries she received when she fell on a set of crosstie steps located on Mechanical’s premises. The trial court denied Mechanical’s motion for summary judgment, but granted a certificate of immediate review. This appeal follows our grant of Mechanical’s application for interlocutory appeal.

Viewed in the light most favorable to Hoose, the nonmovant, the evidence shows that on the day of the accident Hoose had gone to Mechanical to pick up some parts for her employer, Gene’s Refrigeration. Hoose testified in her deposition that during the three years she had been employed by Gene’s, she picked up parts at Mechanical on at least a monthly basis, and that depending on the season, she might go there as. often as twice a week. Hoose stated that she had used the crosstie steps approximately ten to twelve times in the past year. On the day she fell, Hoose picked up some parts in another area of the business and then traversed the crosstie steps to get to the loading dock so she could pick up another part. Hoose picked up the additional part and fell on the top step as she started going back down the steps. Hoose testified that she did not notice a problem with the step going up and that she did not look at the step after she fell. Hoose presented the affidavit of a professional engineer, who opined that the steps violated the standard building code in several respects.

Mechanical presented evidence that the steps had been on the premises for at least eight years and that its employees used the steps on virtually a daily basis. Several of Mechanical’s employees who used the steps on numerous occasions averred that they

noticed no defects in the steps with regard to the instability of the individual steps or with regard to any portion of the step breaking away. There were no loose steps immediately following [Hoose’s] alleged fall. Specifically, there were no steps loose to the extent that a step would trip up and cause someone to fall. At that time, there were no defects in the steps which appeared to have resulted from any portion of the step itself falling off or breaking away.

Both Hoose’s and Mechanical’s evidence showed that the steps, which had been in place for at least eight years, were a static condition. Our cases have distinguished claims involving static defects from other slip and fall cases.

A claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.

(Citations and punctuation omitted.) Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 394 (506 SE2d 910) (1998).

Hoose argues, however, that this case is controlled by our decision in Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791 (504 SE2d 198) (1998). In Flournoy the plaintiff slipped while going down a ramp. Analyzing the case under Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997), we first considered whether defendant had knowledge of the. hazard and found its knowledge could be presumed from the fact that it applied a non-skid paint to the ramp, and that its continuous use of the ramp supplied it with actual or constructive knowledge of the worn nature of the non-skid coating. We then considered, under the second prong of Robinson, defendant’s contention that plaintiff’s negligence was established as a matter of law because he had previously negotiated the ramp without difficulty. In rejecting that contention, we held that the rule barring recovery based on an individual’s previous use of the alleged dangerous condition was inapplicable because the dangerous condition in Flournoy resulted from a combination of factors (the slope of the ramp, the fact that the non-skid paint had worn off and that the ramp was wet) that could not be appreciated by someone who had previously gone only up the ramp.

We find Flournoy distinguishable from this case. Mechanical presented evidence that its employees used the steps almost daily before the fall, that they continued to use the steps after Hoose fell and that they noticed nothing wrong with the steps which would have caused her to fall. In addition to Mechanical’s employees, many other people had successfully traversed the steps without injury numerous times over an eight-year period and never complained about the condition of the steps. Thus, unlike in Flournoy, the evidence shows there was nothing to show that Mechanical either knew or should have known of any defect in the steps.

“Although we are aware that under Robinson, the lack of evidence of [Mechanical’s] knowledge of the defect ends our inquiry, given the circumstances of this case we also examine [Hoose’s] role in this incident.” Herrin v. Peeches Neighborhood Grill &c., 235 Ga. App. 528, 532 (1) (509 SE2d 103) (1998). Hoose’s theory was that she fell because either the step was loose or the wood was rotten. But she did not notice anything wrong with the step when she first traversed it, and she did not examine the step after she fell. Importantly, she could not, as in Flournoy, point to any defect which would not have been apparent going up the steps but which would have manifested itself only when she was going down the steps. Moreover, the evidence is clear that Hoose had used the steps many times before her fall without incident. And although Hoose argues on appeal that the condition of the steps may have been obscured by grass growing around the steps, this argument ignores the fact that she had traversed the steps just before she fell. “Accordingly, the evidence shows [Mechanical] did not have superior knowledge of the alleged defect. Furthermore, because [Hoose] had successfully negotiated the steps on several occasions in the past, [she] cannot recover for [her] subsequent injury. [Cit.]” Hannah v. Hampton Auto Parts, 234 Ga. App. at 394-395.

In support of the trial court’s order denying Mechanical’s motion for summary judgment, Hoose also points to her expert’s affidavit opining that the steps did not meet the standard building code. Mechanical argues the affidavit was inadmissible because it was not based on the personal knowledge of the expert.

“We need not decide [, however,] whether the (steps) constituted a building code violation, because, even assuming (they) did, it would show only negligence per se.” Parks-Nietzold [v. J C. Penney, 227 Ga. App. 724, 726 (2) (490 SE2d 133) (1997)]. [Hoose] and [Mechanical] had equal knowledge of the static condition of the steps, and “(t)he equal knowledge rule would preclude recovery even if [Hoose] could show that the (maintenance of the steps) was negligence per se as a violation of the building code.” Id.

Decided October 7, 1999

Reconsideration denied December 14, 1999

Carey, Jarrard & Walker, Daniel L. Parr, Sr., for appellant.

Susan C. Campbell, Malcolm S. Campbell, for appellees.

Hannah v. Hampton Auto Parts, 234 Ga. App. at 395. See also Herrin v. Peeches Neighborhood Grill &c., 235 Ga. App. at 533 (2).

While this Court is to remain mindful “that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication ...,” this is one of those cases in which the evidence is plain and palpable that the [defendant is] not liable. Robinson v. Kroger Co., 268 Ga. [at] 748.

Hannah v. Hampton Auto Parts, 234 Ga. App. at 395.

Judgment reversed.

Smith and Eldridge, JJ, concur.