text:
    A94A2483.
    PARKER v. GEORGIA RECEIVABLES, INC.
    (451 SE2d 538)
   Blackburn, Judge.

Appellant, Kenneth A. Parker, appeals the order of the trial court granting appellee, Georgia Receivables, Inc.’s motion for summary judgment in a suit for breach of Parker’s personal guaranty of an automobile lease.

On May 26, 1989, Parker, as president of Advanced Personnel, a Georgia corporation, entered into a vehicle lease agreement with Robinson Leasing, Inc. whereby Advanced Personnel agreed to lease it a 1989 Cadillac El Dorado for $22,096.44. Immediately after executing the lease agreement, Parker executed an unconditional guaranty of payment in the amount of $22,096.44, personally guaranteeing the payment of the note on the lease agreement. The lease was then assigned to the Fulton Federal Savings & Loan Association (Fulton Federal), as it had financed the lease. On November 16, 1990, the Georgia Bureau of Investigation seized the vehicle in connection with an illegal gambling operation. As a result, Fulton Federal terminated Parker as in default of the lease pursuant to Paragraph 16 thereof and sold the vehicle at auction for $15,100. With the failure of Fulton Federal, the lease was further assigned to Georgia Receivables from the Resolution Trust Corporation. Georgia Receivables, in turn, brought suit below upon Parker’s refusal to pay its alleged net loss of $4,406.53 on the lease as guarantor.

In a single enumeration of error, Parker asserts that the trial court erred in granting the motion for summary judgment in that “there were genuine issues of material fact from the evidence, pleadings and record before it which did not entitle the moving party to a judgment as a matter of law.” He further contends that jury questions exist as to whether the lease agreement was properly terminated; whether Georgia Receivables was a proper assignee of the lease; whether Parker was individually liable incident to the guaranty agreement, and, if so, in what amount.

Paragraph 19 of the lease agreement pertinently provides that “I agree that I will use or permit the use of the Vehicle only for lawful purposes . . . and in no event shall I use or permit the Vehicle to be used in violation of any federal, state or municipal statutes, laws, ordinances, rules, or regulations applicable to the operation of the Vehicle and [,]... [i]f the Vehicle is confiscated for any purpose by any political or governmental agency, for any reason, I agree to reimburse you, at your election, the fair market value of the Vehicle at the time of confiscation.” (Emphasis supplied.) It is uncontroverted in the record that the leased vehicle was seized by the Georgia Bureau of Investigation in connection with a gambling sting operation while being driven by an employee of Advanced Personnel. Paragraph 16 authorized termination for default based on the failure to “comply with any and all terms and conditions of [the] Lease Agreement.” Inasmuch as the vehicle was confiscated by a governmental agency, Parker was properly terminated for default under the express terms of the lease, subjecting him to repossession and the payment of all costs and expenses incurred by the lessor as a result. Where the parties have reduced to writing what appears to be a complete and certain agreement, the law concludes that the writing contains the entire contract. Andrews v. Skinner, 158 Ga. App. 229, 231 (279 SE2d 523) (1981). Further, if, as here, the terms are clear and unambiguous, no construction thereof is necessary or proper. Reahard v. Ivester, 188 Ga. App. 17, 19 (371 SE2d 905) (1988).

That Georgia Receivables was the real party in interest to the lease was fully demonstrated in the record; however, we conclude that a genuine issue of material fact remains as to whether the guaranty agreement executed by Parker made him personally liable. In this regard, Parker, citing Avec Corp. v. Schmidt, 207 Ga. App. 374, 376 (427 SE2d 850) (1993), contends that it is here impermissible to extend liability to him as a guarantor because such a result would require this court to construe his personal guaranty of the automobile lease by implication or interpretation. We agree.

In Avec, we declined to extend the guarantor’s liability on the ground that the lease and the guaranty were executed on different dates requiring that liability be extended by implication if the guaranty were interpreted as applicable to the earlier lease. Id. While the lease agreement and the guaranty before us were executed on the same day, it is unclear that they refer to the same subject matter. In this regard, the guaranty, on its face, purports to promise the payment of a note numbered, VIN 1G6EL1159KU621409, in exchange for a loan, rather than payment of amounts owing on an automobile lease pertaining to a vehicle having an identical vehicle identification number. In sum, to find Parker’s guaranty as applicable to his lease agreement with Georgia Receivables would require construction by implication or interpretation. The law of guaranty does not allow us that discretion.

Decided December 13, 1994.

Daniel F. Byrne, for appellant.

Frederick J. Hanna & Associates, Frederick J. Hanna, Elizabeth C. Whealler, for appellee.

Likewise we find that a genuine issue of material fact is in issue with respect to damages. By its motion for summary judgment Georgia Receivables contends that Parker originally owed it $25,850 plus a dealer markup of $675.79 in calculating its damages to be $4,406.53. Yet, the lease agreement and Parker’s alleged personal guaranty thereon indicate that such damages should have been calculated on an original figure of $22,096.44, the total amount Parker potentially owed. Summary adjudication of a contract action is only appropriate where the terms of the contract are plain and unambiguous. Castellana v. Conyers Toyota, 200 Ga. App. 161, 165 (407 SE2d 64) (1991). Inasmuch as the intention of the parties is not clear, the trial court erred in granting summary judgment to appellee. See American Honda Motor Co. v. Williams & Assoc., 208 Ga. App. 636, 644 (5) (431 SE2d 437) (1993).

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A2722.
    MOORE v. THE STATE.
    (451 SE2d 534)
   Birdsong, Presiding Judge.

Gary Nathaniel Moore appeals his conviction of habitual felon and violation of the Georgia Controlled Substances Act by unlawfully selling cocaine. Held:

1. Appellant asserts the trial court erred by denying without a hearing appellant’s pretrial motion to suppress identification testimony. This issue is controlled by Smith v. State, 195 Ga. App. 669 (1) (394 SE2d 558); moreover, “it has repeatedly been held that the trial court is not required to entertain a pre-trial motion to suppress identification testimony.” Martin v. State, 201 Ga. App. 643 (1) (411 SE2d 788). Appellant’s first enumeration is without merit.

2. Appellant contends the trial court erred in denying his motion for directed verdict based on “the motion to suppress identification testimony.” As a general rule, “a motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). The trial court did not err in denying the motion for a pretrial suppression hearing. See Division 1 above. At the commencement of trial and in response to an inquiry by appellant’s counsel, the trial court ruled that appellant could re-assert his motion to suppress identification testimony during the course of the trial. Thereafter, appellant elected not to object to the identification testimony of the police officers or otherwise to re-assert timely his motion to suppress such testimony. “No ruling by the trial court on the admissibility of the [officers’] identification testimony ever having been properly invoked, this enumeration presents nothing for review.” Smith, supra. Also, all evidence is admitted as a matter of course unless a valid ground of objection is timely interposed. Scott v. State, 206 Ga. App. 23, 26 (1) (424 SE2d 328). Appellant by his trial procedure and strategy aided in the admission of the identification testimony at issue. See generally Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309). For each of these reasons, appellant’s second enumeration is without merit.

3. Trial of the case took only approximately three-and-one-half hours; the jury was not confronted with conflicting expert testimony as to scientific matters, but was primarily confronted with important questions necessitating commonsense resolution of witness credibility and allocation of weight to various evidence. After deliberating approximately one hour and forty-five minutes, the jury was returned to the courtroom and the jury foreman reported a 10 to 2 jury deliberation vote — whereupon the trial court gave the jury an Allen charge; appellant posed a timely objection to the charge. Approximately 45 minutes later the jury returned a guilty verdict. Appellant contends that the trial court erred in giving the Allen charge. While the trial court did not inquire whether the jury was making progress in its deliberation before giving the charge, it was ascertained that the jury had not yet reached a verdict and the trial court was informed that the jury was in disagreement by its vote of 10 to 2; further, the trial court was not informed as to which way the votes had been cast. Examination of the Allen charge on its four corners reveals that the trial court did not suggest a particular verdict or even require that a verdict be reached by this particular jury. Rather the jury was encouraged to return to the jury room for a reasonable time and to examine their differences in the spirit of fairness and candor in order to “try to arrive at a verdict.” Additionally, the court expressly informed the jury that it was “not in any way bringing any pressure on any of [the jury members] to give up any conscientious opinion that [they] have.” On balance we do not find this particular charge coercive. We recognize the press of time that a busy court docket can create; however, the right to a fair trial must remain the paramount concern at all times and in all cases. A trial court should not elect too quickly to give an Allen charge, especially, when to do so, it would be compelled to call the jury from the deliberation room before the jury reported a need for additional guidance. Nevertheless it is the trial court’s responsibility to control, in the furtherance of justice, the conduct of all persons connected with a judicial proceeding before it and in every matter appertaining thereto. OCGA § 15-1-3 (4). “It is within the trial court’s discretion whether to give an Allen charge to a jury in disagreement. . . . Furthermore, the decision to give an Allen charge does not require a finding that the jury is deadlocked.” Stewart v. State, 210 Ga. App. 474, 476 (5) (436 SE2d 679). The circumstances of this case are clearly distinguishable from the coercive atmosphere found to exist in McMillan v. State, 253 Ga. 520 (322 SE2d 278). Under the facts of the case at bar, we find no abuse of discretion by the trial court in electing to give the particular Allen charge at issue. Compare Jones v. State, 202 Ga. App. 642 (1) (415 SE2d 64). Appellant’s fourth enumeration of error is without merit.

Decided December 13, 1994.

Michael R. McCarthy, for appellant.

Jack O. Partain III, District Attorney, Albert H. Tester, Assis tant District Attorney, for appellee.

4. Appellant asserts that the trial court erred in denying his motion for directed verdict based on a claim of insufficiency of the evidence. The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). Review has not revealed the existence of any legal errors, as enumerated, which harmed appellant. See Divisions 1 through 3 above. The police officers identified appellant as the person who sold them three pieces of a compressed substance which subsequent laboratory testing revealed contained cocaine. Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of selling cocaine of which convicted. Jackson v. Virginia, supra. Appellant’s third enumeration of error is without merit.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Pope, Chief Judge.

text:
    A94A0972.
    DICK et al. v. WILLIAMS et al.
    (452 SE2d 172)
   Pope, Chief Judge.

Plaintiffs/appellees brought a complaint in equity against defendants/appellants seeking to set aside the grant of a rezoning application brought by defendants David H. Dick and David B. Allman and to enjoin its implementation. The trial court granted plaintiffs’ request for equitable relief, and this appeal, which was originally filed by defendants in the Supreme Court, followed.

The following facts, as found by the trial court, are pertinent to the issues raised on appeal: In December 1990, defendants Dick and Allman submitted an application to rezone a piece of property located at the northeast intersection of Paces Ferry Road and Overlook Parkway in Cobb County, seeking a change from O & I (Office & Industrial) to OHR (Office High Rise). The application came before the Cobb County Planning Commission (“the Commission”) and the Cobb County Board of Commissioners (“the Board”) on February 19, 1991, at which time the Commission recommended rejection of the application. The Board voted to hold the application until the March 21, 1991 zoning hearing. On that date, the Board voted 4 to 1 to reject the application without prejudice because of a technical problem. Approximately one month later, the Board reconsidered the application and voted 4 to 1 to allow Dick and Allman to submit a corrected and amended application.

On July 18, 1991, the Board voted 2 to 2 on a motion to reject the application. Because of this “no action” vote, the application was held until the August 20, 1991 zoning hearing. On September 17, the Board voted 3 to 2 to reject the application.

In October, defendants Dick and Allman brought suit against Cobb County. In November 1992, defendant Cobb County, by a consensus of the Board meeting in Executive Session, voted to allow a reconsideration of the rezoning application. On December 15, 1992, a public hearing was held. At that meeting, Commissioner Burton made a motion to hold the application. Defendant/Commissioner William Cooper (“Commissioner Cooper”) made a substitute motion to approve the application. The Board voted 3 to 2 to approve the application. Dick and Allman subsequently dismissed their suit against Cobb County.

The record further shows that attorney Jean E. Johnson, Jr. represented defendants Dick and Allman in connection with their rezoning application before the Board. At that time Johnson was a professional employee of the law firm of Jean E. Johnson, Jr., P. C. Attorney Lance A. Cooper, who is the son of Commissioner Cooper, was also a professional employee of Jean E. Johnson, Jr., P. C. and was paid a salary by the firm. Although Johnson and Cooper both testified that Cooper did not participate in the legal work involving zoning matters and Cobb County, Lance Cooper testified that during 1991 he did attend one meeting with defendant Allman during which the rezoning application was discussed. Lance Cooper testified that he attended the meeting as part of his on-going education as an associate attorney to learn how to deal with clients, but also conceded that an attorney-client relationship was created by his attendance at the meeting.

On January 1, 1992, Lance Cooper and Jean Johnson formed the partnership of Johnson & Cooper. However, both Lance Cooper and Jean Johnson testified that after formation of the partnership, zoning matters involving Cobb County were still handled by Jean E. Johnson, Jr., P. C., and not by the partnership of Johnson & Cooper, and that, furthermore, Lance Cooper received no portion of the legal fees generated by these matters. A separate checking account was maintained by Jean E. Johnson, Jr., P. C. for any fees generated by the Cobb County zoning work. However, the record further shows that two pieces of correspondence relating to the rezoning application of Allman and Dick were sent out on Johnson & Cooper stationery.

On January 13, 1993, plaintiffs filed their complaint in equity alleging, inter alia, that under the Ethics Code of Cobb County (“Ethics Code”) Commissioner Cooper should not have participated in the proceedings involving the rezoning application filed by defendants Dick and Allman because of his familial relationship with Lance Cooper and Lance Cooper’s professional relationship with Jean Johnson.

Hearings were held before the trial court which thereafter entered an extensive order wherein it: 1) declared the action previously taken by the Board on the rezoning application to be null and void, and remanded the application to the Board for reconsideration; 2) enjoined and restrained Commissioner Cooper from participating in any rezoning applications relating to the subject property; 3) enjoined and restrained defendants Dick and Allman from utilizing the benefits of the rezoning previously granted.

1. In their first enumeration of error, defendants contend the trial court erred in holding thát the existence of a conflict of interest should be determined under the Ethics Code of Cobb County, rather than state law. We find no merit to this contention. Rather, we believe that state law provides a floor and not a ceiling for the boundaries of ethical conduct by government officials. Local county and municipal governments are free to impose higher standards, and individuals who seek and retain office in local jurisdictions are bound by the standards of the government they serve.

As is pertinent to this appeal, the Ethics Code provides: “Public interest requires that Cobb County protect against improper influence or the appearance of improper influence by establishing appropriate ethical standards with respect to the conduct of public officials.” Section 3-20-32. Section 3-20-37 (a) provides in pertinent part, “It shall be a violation of this code of ethics for any officer to participate directly or indirectly through decision, approval, disapproval, recommendation or in any other manner upon the following: (1) Any proceeding, application, vote, request for ruling, claim, controversy, contract or any other matter involving an immediate relative or any interest of an immediate relative of the officer.”

Clearly, an appearance of impropriety was created by Commissioner Cooper acting on an application where the applicants were represented by his son’s law partner. Indeed, defendants state in their brief “If [plaintiff’s evidence] showed anything, [it] showed only the appearance of impropriety.”

Defendants argue, however, that Commissioner Cooper had no conflict of interest in considering the zoning application at issue, because his son derived no pecuniary benefit from and thus had no interest in the legal work performed by Jean E. Johnson, Jr., P. C. Implicit in this argument is the recognition that if measures to insulate Lance Cooper from this matter had not been taken, Lance Cooper would have an interest necessitating his father’s abstention from any zoning matters. The real issue presented by this case is thus whether lawyers can structure their law practice in such a way to achieve the result attempted here. We think this question must be answered in the negative. “If the lawyer is required to decline employment, no partner or associate of his firm may accept such employment, because a lawyer may legitimately disclose and discuss the affairs of a client with his partners or associates of his firm, unless the client otherwise directs, and a lawyer is required to avoid even the appearance of impropriety.” (Citations omitted.) Summerlin v. Johnson, 176 Ga. App. 336 (1) (335 SE2d 879) (1985). Furthermore, DR 2-102 (B) (3) of the Code of Professional Responsibility provides that “a law firm shall not simultaneously practice law under more than one name.” Lawyers practicing in the same firm should not be allowed to create multiple legal entities and parcel their clients among them in order to circumvent an otherwise existing conflict, and it necessarily follows that they should not be able to do so in order to allow some lawyers in the firm to have an “interest” in a particular matter while others do not.

In so holding, however, we would emphasize, as did the trial court, that there is no question of the integrity or motives of the defendants in this case. Indeed, Commissioner Cooper sought the advice of the county attorney on his participation in this matter on two occasions. However, we nevertheless agree with the trial court that the rezoning application in this case should be remanded and reheard by the Board, and that Commissioner Cooper should not participate in these proceedings.

2. We find no merit to defendants’ contention that the trial court erred in failing to grant their motion for directed verdict urged on the basis that plaintiffs should have first exhausted their administrative remedies under the Ethics Code before seeking equitable relief. “ ‘ “A remedy at law, to exclude appropriate relief in equity, must be complete and the substantial equivalent of the equitable relief. It is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity.” ’ [Cit.]” Clear-Vu Cable v. Town of Trion, 244 Ga. 790, 793 (2) (262 SE2d 73) (1979).

It is clear to us that filing an administrative action pursuant to the Ethics Code would not have provided an adequate remedy in this case. Instead plaintiffs properly invoked the equitable powers of the superior court to invalidate the grant of the rezoning application, and injunctive relief was necessary to prevent defendants from going forward with their plans for use of the land consistent with the grant of the application. Consequently, this enumeration of error is without merit.

3. We also find without merit defendants’ contention that plaintiffs lack standing to bring this action. See Dunaway v. City of Marietta, 251 Ga. 727, 729 (2) (308 SE2d 823) (1983).

4. Based on the foregoing, the superior court did not err in issuing the injunctive relief requested by plaintiffs. “The discretion of the trial court in granting or denying interlocutory injunctive relief will not be interfered with in the absence of a showing of manifest abuse.” Mark Smith Constr. Co. v. Fulton County, 248 Ga. 694, 695 (2) (285 SE2d 692) (1982). Defendants’ fourth enumeration of error is thus without merit.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Decided December 1, 1994

Reconsideration denied December 14, 1994

Ronald A. Lowry, Dupree, Johnson & Poole, Hylton B. Dupree, Jr., for appellants.

Cauthorn & Phillips, Thomas E. Cauthorn III, R. Randy Edwards, James W. Friedwald, for appellees.

       By order dated January 24, 1994, the Supreme Court transferred the case to this court, on the basis that “the equitable relief granted by the trial court was a matter of routine once the underlying issues of law were resolved, . . . Pittman v. Harbin Clinic, 263 Ga. 66 (428 SE2d 328) (1993).” Although we agree with plaintiffs’ assessment that the Supreme Court, not this court, has jurisdiction of this appeal, see 1983 Ga. Const., Art. VI, Sec. VI, Par. III (2), we are constrained by principles of fairness and justice to consider the merits of this appeal. However, we note that jurisdiction of the appellate courts of this state is set forth in our state constitution and neither this court nor the Supreme Court can broaden or limit jurisdiction on its own initiative; nor can the Supreme Court confer jurisdiction on this court where such jurisdiction would not otherwise be proper.


author: Smith, Judge.

text:
    A94A1225.
    KENDALL et al. v. PEACH STATE MACHINERY, INC.
    (451 SE2d 810)
   Smith, Judge.

Brent Construction Company and Wayne B. Kendall, its president and sole shareholder, appeal from the trial court’s grant of summary judgment to Peach State Machinery in an action brought by Peach State to recover a deficiency judgment.

The record reveals that on January 7, 1993, the trial court entered an order granting Peach State’s motion for summary judgment. Appellants allege they first learned the order had been entered when served with post-judgment discovery in April 1993. On April 15, 1993, appellants filed a “motion to vacate and correct judgment” under OCGA § 9-11-60 (g), and on April 27, 1993, they filed a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d).

After a hearing, the trial court entered an order on June 18, 1993, denying both motions. The order recites that the January 1993 order remains the judgment of the court, but because Brent and Kendall had apparently not received a copy, the order is to be re-entered nunc pro tunc and notice given in accordance with OCGA § 15-6-21.

1. In Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980), the Supreme Court held that the trial court’s failure to notify counsel of the entry of judgment, as required by OCGA § 15-6-21 (c), warranted the grant of a motion to set aside the judgment under 9-11-60 (g). The procedure outlined in Cambron permits commencement of a new 30-day period after re-entry of the judgment, provided the earlier judgment is first set aside. Id. at 148-149 (1).

An appellate court has the duty to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. Atlantic-Canadian Corp. v. Hammer, Siler, George Assoc., 167 Ga. App. 257, 258 (1) (306 SE2d 22) (1983). For appellate jurisdiction to attach, it is mandatory that a notice of appeal be timely filed. Id. The Cambrón court did not hold that failure to notify a party of the entry of judgment extends the time for filing the notice of appeal, Atlantic-Canadian Corp., supra, and the denial of a motion to set aside under OCGA § 9-11-60 (d) is subject to the discretionary appeal procedures, OCGA § 5-6-35 (a) (8). This court has held, however, that the denial of a motion to set aside brought under OCGA § 9-11-60 (g) is directly appealable. Crawford v. Kroger Co., 183 Ga. App. 836 (360 SE2d 274) (1987). Accordingly, this court has jurisdiction to entertain this appeal from the denial of the motion to set aside brought under OCGA § 9-11-60 (g).

2. We consider, therefore, whether the trial court’s denial of the motions to set aside was erroneous.

Cambron provides that upon a finding by the court that notice was not provided as required by OCGA § 15-6-21 (c), the motion to set aside may be granted and the judgment re-entered. Alternatively, if the judge finds that notice was sent and received, the motion to set aside the earlier judgment should be denied. 246 Ga. at 148-149 (1). As stated in Intertrust Corp. v. Fischer Imaging Corp., 198 Ga. App. 812 (403 SE2d 94) (1991), the issue is not whether the losing party had knowledge that judgment was entered, but whether the duty imposed on the court in OCGA § 15-6-21 (c) was carried out. Id. at 813 (1). To implement properly the procedure set forth in Cambron, therefore, it is necessary that the trial court first make a finding regarding whether the duty imposed on the court by OCGA § 15-6-21 (c) was met. If the trial court finds the statute’s requirements were not met, the earlier judgment must be set aside before judgment is reentered to commence a new 30-day period for appeal.

The order appealed from contains a finding that appellants did not receive the summary judgment order. However, it includes no finding regarding whether such notice was sent or whether the court’s duty under OCGA § 15-6-21 (c) was met. Moreover, although the order explicitly denies the motions to set aside and states that the earlier order remains the judgment of the court, it also directs the entry nunc pro tunc of its order granting summary judgment.

These provisions appear to be contradictory, and we cannot discern from the language of the order whether it was the intent of the trial court to allow the commencement of a new 30-day period for appeal or to refuse to do so. Further, since no finding was made regarding compliance with OCGA § 15-6-21 (c), even if we could ascertain the court’s intention, we would be unable to determine whether the court’s decision to grant or deny the motion to set aside was proper under Cambron.

Decided November 30, 1994

Reconsideration denied December 14, 1994

Lawson & Thornton, George 0. Lawson, Jr., for appellants.

James H. Mobley, Jr., for appellee.

For these reasons, we are unable to determine if it is necessary that the trial court’s order be vacated. This case therefore must be remanded to the trial court with direction that the court make the necessary findings and otherwise follow the procedure set forth in Cambrón.

Case remanded with direction.

Pope, C. J., concurs. McMurray, P. J., concurs in the judgment only.

       Because it appears that some confusion exists regarding the procedure for re-entering judgment after setting aside an earlier judgment and that for entering an order nunc pro tunc, we note that a nunc pro tunc entry is used to record a previously unrecorded action taken or judgment rendered, which is to take effect as of the former date. It may not be used to correct a decision, however erroneous, or to supply non-action on the part of the court. Rivers v. Goodson, 184 Ga. App. 70, 72 (360 SE2d 740) (1987).


author: Blackburn, Judge.

text:
    A94A1891.
    MATTISON v. THE STATE.
    (451 SE2d 807)
   Blackburn, Judge.

Following a trial by jury, the appellant, Java Mattison, was convicted of armed robbery. He appeals from the entry of the judgment of conviction and sentence and the denial of his motion for new trial.

1. Initially, Mattison asserts that the trial court erred in charging the jury that “[a] person commits armed robbery when with the intent to commit theft that person takes property of another from the person or the immediate presence of another by use of an offensive weapon or by any replica, article, or device having the appearance of such weapon.” He argues that because the indictment specifically alleged armed robbery “by use of a pistol, an offensive weapon,” the jury was erroneously instructed on other means by which the offense of armed robbery could be committed.

“The trial court essentially charged the entire armed robbery statute. OCGA § 16-8-41 (a). It is not usually cause for new trial that an entire Code section is given. This is so even though a part of the charge may be inapplicable under the facts in evidence.” (Citations and punctuation omitted.) Daniels v. State, 207 Ga. App. 689, 690 (428 SE2d 820) (1993). The evidence produced by the State showed that a handgun was used in the commission of the robbery. In addition, the trial judge read directly from the indictment in the course of instructing the jury. Considering the charge in its entirety, viewed in connection with the evidence adduced at trial, the jury could not have been misled into convicting Mattison of armed robbery by any other means than as charged in the indictment. See id.

2. Mattison next maintains that the trial court erred in failing to suppress the on-the-scene show-up identification of him while he was sitting in the rear of a patrol car after he was apprehended. However, “such on-the-scene ‘show-up’ identifications have been held not to be impermissibly suggestive where they are necessary due to the practicalities of the situation.” (Citations and punctuation omitted.) Bigsby v. State, 210 Ga. App. 696, 697 (436 SE2d 817) (1993). Mattison was apprehended by police officers within 15 minutes after he fled a convenience store’s parking lot at a high rate of speed in the victim’s automobile, was pursued by the officers at the request of the victim and other witnesses, and was identified by the victim within this time period. The victim had ample opportunity to see Mattison’s face for at least a minute at close range during the robbery and the preceding verbal exchange between the two in a well-lighted area of the parking lot, and she was absolutely certain that Mattison was the robber. Under these circumstances, there was no substantial likelihood of misidentification. See id. Hence, the trial court did not err in denying the motion to suppress.

3. Lastly, Mattison, a black male, asserts that the trial court’s findings in the Batson hearing were clearly erroneous because the explanations offered for the prosecution’s exercise of its peremptory challenges were not racially neutral. We agree.

The qualified venire in this case consisted of eighteen blacks and seventeen whites and eight blacks and one black alternate were on the trial jury. The prosecution exercised five of six peremptory challenges to remove blacks from the qualified venire. This overwhelming pattern of strikes establishes a prima facie inference of racial discrimination. Ford v. State, 262 Ga. 558 (1) (423 SE2d 245) (1992). There is a “very high probability that this racial disparity did not occur strictly as a matter of chance.” Id. at 559.

“Where the result of [the exercise of] peremptory strikes is the grossly disproportionate exclusion of jurors of one race, there is greater likelihood that race was the underlying determining factor and the real explanation for the result. At this point, ‘mistake,’ or ‘ignorance,’ or ‘idiosyncracy’ do little to dispel the inference that racial bias infected the prosecutor’s exercise of peremptory strikes. Hence it is not a sufficient rebuttal simply to offer explanations which do no more than fail to prove the defendant’s claim that the prosecutor acted, consciously or unconsciously, in a racially-discriminatory manner. That he so acted may be inferred by the circumstances establishing the prima facie case. The prosecutor’s explanations must be strong enough to overcome the prima facie case.” Id.

Here, as in Ford, many of the explanations offered by the prosecutor could have applied equally to white jurors whom the prosecutor declined to strike. For example, two black males were stricken because they knew someone who had been mistakenly accused of a crime and mistaken identity was a defense asserted in the present case. However, the State accepted a white female juror who stated that her son was mistakenly charged with a drug-related offense. While the State argues that this juror was rehabilitated because she stated that she had a positive feeling about law enforcement officials as a result of their assistance in another incident, in contrast, one of the stricken black male’s testimony was not rehabilitated after he discussed his positive experience with law enforcement.

In addition, the prosecutor exercised a peremptory strike against a black female because her brother had been beaten years ago by law enforcement officers and she thought that he had been treated unfairly. However, she stated that her brother’s past experience with law enforcement officers would not prejudice her decision if she were chosen as a juror. Nevertheless, two white males who had unpleasant experiences with law enforcement officials were accepted by the State although one of the men testified that he thought that law enforcement officials treated his friend unfairly during an incident.

The State also struck a black male because he did not know certain details about the places where his children worked, did not know the type of work they did, did not know details of the work performed by his wife, and misunderstood a question posed by the State, although a white female who also misunderstood a question and supplied an incorrect answer to the question, was deemed acceptable. However, the prosecution failed to show how the juror’s lack of detailed information on the work performed by his family members is related to this particular case. See Chunn v. State, 210 Ga. App. 209 (2) (435 SE2d 728) (1993). Moreover, part of the prosecution’s basis for the exercise of this strike was not neutrally applied. See Ford, supra.

The State exercised the last peremptory strike in question against a black male because his daughter was a rape victim and at his request, based in part upon information that he later discovered concerning his daughter’s actions, the charges were dropped. The charges were also dropped because the juror did not want his daughter to be involved in the trial of the accused youths at her age. Even assuming arguendo that the reason offered for the exercise of this strike was legitimate because of the potential for bias in favor of the accused and against the State, the other proffered explanations were questionable and insufficient to withstand a Batson challenge. Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987).

“A prosecutor carries an especially heavy burden when attempting to rebut a prima facie case as strong as the one in this case. [Cit.]” Ford, supra at 560. “The explanations offered in this case simply are not the kind of concrete, tangible, [case-related,] race-neutral and neutrally-applied reasons that can overcome the strong prima facie case established by the pattern of strikes [exercised] in this case.” Id. See Gamble v. State, supra at 326 (5). As the State correctly argues, the trial court’s findings are entitled to great deference, but “rubber stamp approval of all nonracial explanations no matter how whimsical or fanciful, would cripple Batson’s commitment to ensure that no citizen is disqualified from jury service because of race.” (Citations and punctuation omitted.) Id. at 327. Consequently, the trial court’s findings that the prosecution’s explanations for the exercise of its peremptory strikes were racially neutral are clearly erroneous, and a new trial is in order. Ford, supra. See also Lewis v. State, 262 Ga. 679 (2) (424 SE2d 626) (1993).

Decided November 30, 1994

Reconsideration denied December 14, 1994

Luana K. Walsh, for appellant.

Lewis R. Slaton, District Attorney, Penny A. Penn, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment reversed.

Ruffin, J., concurs. Birdsong, P. J., concurs in judgment only.


text:
    A94A1959.
    THOMAS v. SOUTHWEST GEORGIA COMMUNITY ACTION COUNCIL, INC.
    (451 SE2d 800)
   Blackburn, Judge.

Appellant, Lucille Thomas, appeals the order of the trial court granting appellee, Southwest Georgia Community Action Council, Inc.’s (Southwest Georgia), motion for summary judgment and dismissing her suit for damages arising out of a slip and fall injury.

On March 6, 1991, a clear sunny day, Thomas, age 68, went to Southwest Georgia at its Early County Service Center to pick up surplus commodities which Southwest Georgia distributed to eligible recipients. As she had done once or twice previously, Thomas entered the premises by its front door, stepping up one step to the concrete landing immediately outside the entrance. She noticed that the bricks which edged the front of the landing appeared worn and slippery; however, apart from dirt in the area of the entrance, she noted no foreign object or debris on the landing. On later exiting the facility by the same door, she slipped on the brick edging and fell.

Thomas enumerates that the trial court’s grant of the motion for summary judgment was error in that a jury question exists as to whether she had superior knowledge of the hazardous condition. In this regard, she argues that the trial court erred in finding as a matter of law that her knowledge of the unsafe condition was equal or superior to that of Southwest Georgia.

“Even where premises are dangerous and a proprietor is negligent, he is not liable for an injury where the plaintiff had equal or superior knowledge of a dangerous condition and fails to exercise ordinary care for his own safety. If he knows of a defect, or in the exercise of reasonable care would have known of it, he must use all his senses in a reasonable measure amounting to ordinary care to discover and avoid those things that might cause him harm. Although the issue of a plaintiff’s exercise of due diligence for his own safety is ordinarily a question for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable. Plaintiff is charged with knowledge of those defects which he had actually observed or which were so transparently obvious that his failure to observe them cannot reasonably be excused.” (Citations and punctuation omitted.) Brown v. Carlisle, 214 Ga. App. 483, 484 (448 SE2d 256) (1994).

It is uncontroverted in the record that Southwest Georgia knew that potential for slipping and falling existed at the front entrance of its service center in the instant circumstances. The record reflects that two people had previously fallen on the landing and for that reason Southwest Georgia kept the front door locked on non-distribution days. Nevertheless, it is equally clear in the case at bar that Thomas knowingly elected to enter and exit the service center by a route that caused her to traverse a condition she knew to be dangerous. She had done so successfully on one or two prior occasions and knew that she could have exited by side entrances which would not have required her to negotiate any step upon leaving the building. “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. [Cits.]” Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Neither does the fact that Thomas is elderly relieve her of the duty to exercise ordinary care in negotiating an allegedly dangerous static condition. See Souder v. Atlanta Family Restaurants, 210 Ga. App. 291 (435 SE2d 764) (1993).

Thomas argues Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 814-815 (318 SE2d 235) (1984), for the proposition that her knowledge of the defect upon entering the facility should not be confused with her knowledge of danger as she exited it. We conclude that Robinson is inapposite. Unlike Robinson, there is no evidence before us involving an unusually high step, poor lighting, or of danger beyond the step that might have operated to distract Thomas as she exited the service center, a danger of which she might have been unaware as she entered the facility. Moreover, unlike the victim in Robinson, Thomas had entered and exited the service center in the same way one or two times previously.

Decided November 28, 1994

Reconsideration denied December 14, 1994.

Geer & Rentz, Donald D. Rentz, for appellant.

Watson, Spence, Lowe & Chambless, John M. Stephenson, for appellee.

“[I]f on motion for summary judgment a party offered self-contradictory testimony on the dispositive issue in the case, and the more favorable portion of his testimony was the only evidence of his right to a verdict in his favor, the trial court must construe the contradictory testimony against him.” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (343 SE2d 680) (1986). Upon being deposed, Thomas initially testified that she was looking where she placed her foot, but later testified that she might have been looking ahead rather than down when she slipped and fell. Further, in the affidavit Thomas gave to support her brief in opposition to Southwest Georgia’s motion for summary judgment, Thomas stated that she did not know the extent to which a dangerous condition existed because she had not looked at the bricks carefully as she entered the building. Thomas also indicated that the cause of her fall might have been the dirt on the landing rather than the slippery condition of the bricks as she had originally deposed.

Construing the evidence in a light most favorable to the non-moving party, we conclude that the evidence does not create a triable issue as to each essential element of the case. Accordingly, the trial court did not err in determining as a matter of law that Southwest Georgia did not have superior knowledge and summary judgment below was the proper remedy. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2237.
    BOWEN v. BALL.
    (451 SE2d 502)
   Blackburn, Judge.

Arnold Bowen, defendant in the underlying action, appeals the trial court’s order dismissing as untimely his notice of appeal from the judgment of the magistrate court. On September 29, 1993, the Rockdale County Magistrate Court entered an order granting judgment for appellee Chester Ball, plaintiff therein. On October 18, 1993, Bowen filed a motion for new trial, which was denied by the magistrate court on October 22, 1993. Bowen filed his motion to appeal to Rockdale County State Court on November 16, 1993. Thereafter, Rockdale County State Court granted Ball’s motion to dismiss Bowen’s appeal as untimely.

OCGA § 15-10-41 (b) (1) provides that “appeals may be had from judgments returned in the magistrate court to the state court of the county . . . and the same provisions now provided for by general law for appeals contained in Article 2 of Chapter 3 of Title 5 shall be applicable.” OCGA § 5-3-20 (a) provides that “[a]ppeals . . . shall be filed within 30 days of the date the judgment . . . complained of was entered.”

Whether a motion for new trial in magistrate court extends the time limits set forth above has not before been decided. Initially, we must consider whether a magistrate court has the authority to grant new trials. Magistrate courts are courts of limited jurisdiction and, therefore, possess only those powers specifically conferred upon them by statute. OCGA § 5-5-1 expressly provides that “[t]he superior, state, and city courts shall have power to correct errors and grant new trials in cases or collateral issues in any of the respective courts in such manner and under such rules as they may establish according to law and the usages and customs of courts.” This Code section fails to empower magistrate courts with the authority to grant new trials. Article VI, Section I, Paragraph IV, of the Georgia Constitution provides that “courts of record may grant new trials on legal grounds.”

In DeKalb County v. Deason, 221 Ga. 237, 238 (144 SE2d 446) (1965), the Georgia Supreme Court found “[t]he presence of the following characteristics has been considered as indicative that a particular court is a court of record: (1) the court has power to fine and imprison; (2) the court exercises its functions independently of the person of the magistrate; (3) the court proceeds according to the course of the common law; (4) the court has a seal; (5) the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the record of the court and are of such high and supereminent authority that their truth is not to be called in question.”

The Supreme Court went on to find that “ [i]t is generally accepted that the one essential feature necessary to constitute a court of record is that a permanent record of the proceedings of the court must be made and kept. A definition of such record generally accepted is that it is a precise history of a suit from its commencement to its termination, including conclusions of law thereon drawn by the proper officer for the purpose of perpetuating the exact state of facts. [Cits.]” Id. See also Crosby v. Dixie Metal Co., 227 Ga. 541, 542 (181 SE2d 823) (1971).

Decided November 30, 1994

Reconsideration denied December 14, 1994

Arnold Bowen, pro se.

Smith, Currie & Hancock, M. Craig Hall, Daniel M. Shea, for appellee.

In Crosby, the Court implied the mandates of OCGA § 15-6-61 satisfied the permanent record requirement discussed in Deason, supra. 227 Ga. at 542. OCGA § 15-6-61 sets forth the duties of the clerks of superior courts. OCGA § 15-10-105.1 sets forth the duties of the clerks of magistrate courts. Magistrate courts are not required to keep the type of permanent records required in order to be considered a court of record and are not therefore, so considered.

Magistrate courts do not have the power to grant new trials and a motion for new trial would not toll the time for filing an appeal to state or superior court. See In the Interest of M. A. L., 202 Ga. App. 768, 769 (415 SE2d 649) (1992). As Bowen’s appeal was filed 48 days from the magistrate court’s order, the trial court correctly dismissed it as untimely.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       William G. Herring d/b/a A Acme DeKalb Sewer Service was also a defendant in the underlying action; however, he is not a party on appeal.


text:
    A94A2559.
    OWENS v. LANDSCAPE PERFECTIONS, INC.
    (451 SE2d 495)
   Blackburn, Judge.

This is an appeal from the trial court’s judgment entered in favor of appellee Landscape Perfections, Inc. (Landscape) following a bench trial.

Morgan Adams, President of Landscape, met Steve and Jean Owens in 1987 or 1988 and performed approximately $15,000 in landscaping work at their previous residence. In 1989, Steve Owens contacted Adams for landscaping services in preparation for the construction of their new home. Initially, Adams met with the Owenses and flagged trees which were to remain on the lot after the home’s construction. While the house was under construction, Adams met with Steve Owens at the home and took measurements in preparation for a landscaping plan. Adams subsequently prepared and presented a landscape plan along with a written proposal to Steve Owens. The written proposal included the total cost for the services. Neither Steve nor Jean Owens signed or returned the proposal to Adams. However, Steve Owens did agree with the price contained in the proposal, and informed Adams to proceed with the landscaping project. In Adams’ affidavit, which was admitted into evidence without objection, he opined that $19,241 was the reasonable value of the landscaping services. This evidence was not controverted.

The project was completed at the end of October 1989. Neither Steve nor Jean Owens complained about the landscaping work upon completion. Based upon the Owenses’ failure to pay for the landscaping services rendered in spite of several letters of demand sent to Steve Owens, Landscape commenced the instant complaint in quantum meruit. The Owenses admitted in their answer that Landscape and Steve Owens agreed on certain landscaping work for which defendant Steve Owens would pay Landscape $19,241, and that Landscape performed all work as agreed. However, Steve Owens subsequently filed a Chapter 7 petition for bankruptcy, and thereafter, in accordance with 11 USC § 362, the claims against him were stayed. The case proceeded to trial solely against Jean Owens.

1. “ ‘Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.’ OCGA § 9-2-7.” Ga. Tile Distrib. v. Zumpano Enterprises, 205 Ga. App. 487, 488 (1) (422 SE2d 906) (1992). In the present case, Owens and her husband accepted nearly $20,000 in landscaping services without complaint and have received the benefit of those services. Consequently, the trial court did not err in concluding that a recovery in favor of Landscape based upon quantum meruit was appropriate. Id. Therefore, the trial court did not err in failing to grant Owens’ motion to dismiss or in entering judgment in favor of Landscape.

Relying on Venture Constr. Co. v. Great American Mtg. Investors, 134 Ga. App. 440 (214 SE2d 683) (1975), Owens maintains that Landscape is not entitled to recover against her because Adams had an express oral agreement with her husband. In Venture Constr. Co. at 444, this court held that “[t]here cannot be an express and implied contract for the same thing existing at the same time between the same parties.” (Punctuation omitted.) In the present case, however, there was no express oral agreement between Owens and Landscape for the services rendered. Under such circumstances, “when the parties themselves do not expressly agree . . . the law interposes and raises a promise. . . .” (Citation and punctuation omitted.) Id. Moreover, the express oral agreement between Steve Owens and Landscape did not establish the definite terms upon which the corporation would be paid. As this court recognized in Hardin v. Hunter, 174 Ga. App. 756, 757 (331 SE2d 83) (1985), distinguishing Venture Constr. Co., supra, the mere existence of an express oral agreement does not ipso facto create an express contract.

Decided November 29, 1994

Reconsideration denied December 14, 1994

Gershon, Olim, Katz & Loeb, Jay E. Loeb, for appellant.

Robert A. Wilkinson, for appellee.

2. We have reviewed Owens’ remaining enumerations of error and find them to be without merit.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2758.
    In the Interest of D. I. W., a child.
    (451 SE2d 804)
   Blackburn, Judge.

Appellant, Rebecca Whitener, appeals the order of the juvenile court terminating her parental rights to D. I. W.

D. I. W. was placed in the emergency custody of the DeKalb County Family & Children Services (DFCS) at birth by court order on September 13, 1991. The DFCS’ initial concerns were that Whitener was mentally unable to provide care to her child and that her brother, a convicted child molester, lived in the home she intended to return to upon her release from the hospital. On December 2, 1991, the juvenile court adjudicated D. I. W. deprived in that Whitener, among other things, lacked the abstract thinking skills necessary to understand that her brother’s presence in the home represented potential danger to D. I. W. On September 8, 1993, the juvenile court extended DFCS’ custody of D. I. W. to July 13, 1995, because of Whitener’s failure to satisfy the goals established in DFCS’ plans directed at the reunification of her family. Whitener concurred in the extension.

On November 19, 1993, DFCS filed a petition for termination of parental rights under provisions of OCGA § 15-11-81 (b) (4) (B) (i) for medically verifiable deficiency of Whitener’s mental or emotional health of such a duration or nature which rendered her unable to provide adequately for D. I. W.’s physical, mental, emotional, and moral condition needs. The juvenile court heard the petition on February 9, 1994, and ordered Whitener’s parental rights terminated eight days later. This appeal followed.

1. Whitener first contends that there was insufficient evidence to terminate her parental rights in that neither parental misconduct nor inability was shown by clear and convincing evidence.

“ ‘The termination of parental rights under OCGA § 15-11-81 is a two-step process. First, the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second, the court considers whether termination is in the best interest of the child. In the Interest of G. K. J., 187 Ga. App. 443, 444 (3) (370 SE2d 490) (1988). The standard for appellate review of a termination of parental rights is “ ‘whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. (Cit.)’ (Cit.)” In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666) (1988).’ In the Interest of C. D. P., 211 Ga. App. 42, 43 (3) (438 SE2d 155) [(1993)].” In the Interest of M. R., 213 Ga. App. 460, 463 (444 SE2d 866) (1994).

Parental misconduct or inability is determined by finding: 1) that the child is deprived; 2) that the lack of proper parental care or control is the cause of the deprivation; 3) that such child’s deprivation is likely to continue or will not be remedied; and 4) that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). Among the factors relevant to a child lacking proper parental care and control is a medically verifiable deficiency of the parent’s mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child’s needs. OCGA § 15-11-81 (b) (4) (B) (i). Another is a parent’s unjustifiable failure to significantly comply with a court-ordered plan to reunite the child with the parent for one year or longer. OCGA § 15-11-81 (b) (4) (C) (iii).

In the case sub judice, an unappealed order entered by the juvenile court on December 2, 1991, established that D. I. W. was a deprived child within the meaning of OCGA § 15-11-81 (b) (4) (A) (i). See In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993) (An unappealed deprivation determination is binding on appeal.). Further, the juvenile court heard the undisputed testimony of Dr. Ritz, a licensed psychologist, who testified that he had evaluated Whitener psychologically in April 1993, and found her to be suffering from a dependent personality disorder. He also reviewed the factual findings from psychological evaluations admitted in evidence at previous deprivation hearings and concluded that Whitener had not shown improvement for two years and that the likelihood of improvement in the future was poor. Moreover, he noted that Whitener had been molested by her grandfather until the time of his death in 1989. It was his view that this history of molestation left Whitener neither able to advocate for herself or her child. Dr. Ritz also testified that the combination of Whitener’s limited mental ability, dependent personality, prior history, and behavior, significantly jeopardized her future ability to parent a child. In this regard, he indicated that Whitener had been unable to protect her previous children from violence and that she was unable to adequately assess the risk to her child associated with living with her brother, a convicted child molester.

While Whitener argues that she would never give her brother access to D. I. W. in the future, “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987). Moreover, she argues that the evidence is insufficient to show that the child’s deprivation would likely continue in the future. We disagree. “ ‘(T)he past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. (Cits.)’ ” In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991), citing In the Interest of J. L. Y., supra at 257.

In light of the foregoing, we find the evidence clear and convincing that D. I. W. is currently deprived due to parental inability, that such deprivation will likely continue in the future or will not be remedied, and that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child.

“In considering the child’s best interest, the trial court may consider the child’s need for a stable home situation and the detrimental effects of prolonged foster care. Further, the Juvenile Code is to be liberally construed toward the protection of the child whose well-being is threatened.” (Citations and punctuation omitted.) In the Interest of M. R., supra at 464. In addition to his testimony referenced above, Dr. Ritz testified that Whitener would need three to five years of treatment before she could begin to address parenting issues. He was unable, however, to say that she would respond to treatment. There is no evidence in the record below that Whitener completed any of the court-approved DFCS goals developed to facilitate family reunification. She failed to appeal the juvenile court’s finding of reasonable efforts to prevent the need for removing the child from his home. As a consequence, she is now bound thereby. In the Interest of B. P., supra. Accordingly, the juvenile court’s finding that the termination of parental rights is in the best interest of the child was also authorized by clear and convincing evidence. Since further insecurity regarding D. I. W.’s parental situation would likely be detrimental to him, we find that the court below did not abuse its discretion by terminating Whitener’s parental rights to D. I. W.

2. In her second enumeration, Whitener contends that the court abused its discretion in finding that the DFCS made reasonable efforts to make it possible to return the child to the home. We do not reach this enumeration of error in light of our disposition of Division 1.

Decided November 29, 1994

Reconsideration denied December 14, 1994

Jennifer B. Mann, Abbi S. Taylor, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Robert G. Nardone, Dorothy V. Murphy, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       The juvenile court terminated the parental rights of D. I. W.’s father, Daniel Disharoon, for failure to file a petition to legitimate the child within thirty days of the DFCS’s petition to terminate parental rights and for neglecting and abandoning the child for a period of one year immediately preceding the filing of such petition.


text:
    A94A2181.
    THE STATE v. CARTER.
    (451 SE2d 541)
   Birdsong, Presiding Judge.

The State of Georgia appeals, under OCGA § 5-7-1, the grant of Jerome W. Carter’s motion to suppress the results of an intoximeter test. The sole error enumerated is that the trial court erred by granting the motion to suppress. Held:

The trial court granted Carter’s motion because the court found that the arrest was illegal because the arresting officer was driving a car that was not marked as required by OCGA § 40-8-91 (a): “Except as provided in subsection (b) of this Code section [concerning motor vehicles used by employees of the Department of Public Safety], any motor vehicle which is used on official business by any person authorized to make arrests for traffic violations in this state, or any munici-' pality or county thereof, shall be distinctly marked on each side and the back with the name of the agency responsible therefor, in letters not less than four inches in height.”

The officer who apprehended Carter was part of a joint county-city drug task force and at the time of the apprehension was dressed in plain clothes and was driving a black Iroc Camaro that was not marked as required by OCGA § 40-8-91 (a). The officer testified that he did not ordinarily make traffic stops in this car.

Before the arrest, the officer and his partner were working a narcotics case when they came upon Carter driving a pickup truck. While driving behind Carter for a mile and a half to two miles, the officer saw Carter weave across the centerline about four times and run off the edge of the road twice. The officer first requested assistance from local city police and from county authorities, but no assistance was immediately available. Then, after Carter turned on another road, and “not knowing where he was going, how long he was going to be driving, and the condition ... we felt it necessary to stop him at that time.” When the officer turned on the car’s blue light and sounded the siren, Carter pulled over. As the officer was not in uniform, he showed Carter his badge and identification card. At the time Carter “appeared very unsteady on his feet, his eyes were glassy, his speech was slurred, and there was a strong odor of alcoholic beverage about him.” The officer again called the county authorities to tell them of his location and was informed that a unit was en route. After the officer advised Carter of his implied consent rights from a warning card, Carter agreed to take a breath test. When the deputy sheriff arrived in about five minutes, the arresting officer told him of the circumstances of the stop, and “why we had stopped him instead of waiting for a marked unit.” The deputy then took custody of Carter and took him to the jail where he took a breath test that registered .22 or .23 grams percent of alcohol. There is no evidence that the unmarked police car was used otherwise to make traffic arrests.

Decided December 14, 1994.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellant.

After consideration of the evidence presented, the trial court granted the motion to suppress the evidence of the intoximeter test. The trial court found that Carter’s arrest “was made by an officer in an unmarked vehicle and in violation of Section 40-8-91 of the Official Code of Georgia. And based on that arrest, being illegal and in violation of that Code section by virtue of being made in an unmarked vehicle, the court is finding that the intoximeter test results are fruits of the illegal arrest and therefore tainted and under the exclusionary rule, would not be admissible in the trial of this case.”

Although OCGA § 40-8-91 requires the marking of motor vehicles used to make traffic arrests (see Clayton v. Taylor, 223 Ga. 346 (155 SE2d 387)), unmarked police cars are authorized for other investigations. Id. Nothing in this Code section, however, invalidates traffic arrests made in unmarked vehicles. Ward v. State, 126 Ga. App. 214, 215 (190 SE2d 444); Ross v. City of Lilburn, 114 Ga. App. 428 (151 SE2d 490). Further, because of Carter’s erratic driving the officer was authorized to stop him even in an unmarked vehicle. See Barron v. State, 157 Ga. App. 186, 188 (276 SE2d 868). Accordingly, the trial court erred by finding that Carter’s arrest was illegal because the police car was not marked as required by OCGA § 40-8-91 (a), and the order granting the motion to suppress must be reversed and the case remanded to the trial court.

Judgment reversed.

Blackburn and Ruffin, JJ., concur.

James W. Lovett, Augustus B. Jones III, for appellee.


text:
    A93A0670.
    RAGAN v. THE STATE.
    (451 SE2d 127)
    Decided December 15, 1994.

      D. Wayne Rogers, for appellant.

      Joseph H. Briley, District Attorney, Al C. Martinez, Jr., Assistant District Attorney, for appellee.
   Pope, Chief Judge.

This court having entered a judgment by unpublished opinion in the above-styled case affirming the judgment of the trial court, and the judgment of this court having been reversed on certiorari by the Supreme Court at 264 Ga. 190 (442 SE2d 750), judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


author: Ruffin, Judge.

text:
    A93A1162.
    MARTIN et al. v. WILLIAMS.
    (451 SE2d 822)
   Ruffin, Judge.

Kimberly Williams commenced this malpractice action against Dr. Dana R. Martin, individually, and Dana R. Martin, D.M.D., M.S., P.C. (“appellants”). Following trial in the matter, the jury awarded Williams $20,000 general damages and $30,000 punitive damages. Entering judgment on that verdict, the trial court also awarded Williams $10,282.82 in unliquidated damages interest pursuant to OCGA § 51-12-14.

Appellants then filed a motion styled as both a motion for new trial and a motion to set aside the judgment. The trial court denied that motion, and this appeal followed.

In the first appearance of this case before this court, we dismissed the appeal on the ground that the denial of both the motion for new trial and the motion to set aside the judgment required the discretionary appeal procedures under OCGA § 5-6-35. However, the Supreme Court found that direct appeal of the matter was proper and reversed. Martin v. Williams, 263 Ga. 707 (438 SE2d 353) (1994). The appeal is now before this court for consideration of the substantive issues.

In 1983, Dr. Martin agreed, at Williams’ request, to use “invisible” or lingual braces applied to the back of her teeth to correct her overbite. The roof of Williams’ mouth was first fitted with a removable appliance and periodically adjusted in order to expand the arches gradually. Lingual braces were subsequently affixed to her teeth. Dr. Martin’s office records reflect no analysis of Williams’ progress. Approximately one year into her treatment, she began suffering severe headaches, painful jaw “popping,” and teeth grinding which continued during the four years of her treatment by Dr. Martin.

When her teeth began to “slip down” in 1988, Williams sought treatment from a second orthodontist, Dr. Burch Cameron, who testified at trial that lingual braces were inappropriate appliances for her problem, and that to employ inappropriate appliances solely because of a patient’s request falls below the minimum standards of professional care. Dr. Cameron completed Williams’ treatment in 16 months and resolved her problems with teeth grinding, jaw popping, and headaches.

1. Appellants first enumerate as error the trial court’s award of unliquidated damages.

“Where a claimant has given written notice by registered or certified mail to a person against whom claim is made of a demand for an amount of unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days from the mailing of the notice, the claimant shall be entitled to receive interest on the amount demanded if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the amount demanded.” (Emphasis supplied.) OCGA § 51-12-14. This Code section is in derogation of the common law and must be strictly construed. Resnik v. Pittman, 203 Ga. App. 835 (418 SE2d 116) (1992). For that reason, a demand sent by certified mail to the insurer alone as notice to both insurer and insured does not comply with the statute’s plain language and does not authorize prejudgment interest on unliquidated damages in a tort case. Id. at 836.

In the instant case, Williams’ counsel notified Dr. Martin of his client’s negligence claim in April 1988 by regular mail addressed to his office; in January 1989, he made a separate settlement demand for $25,000 to appellants’ insurer “[f]or purposes of compliance with § 51-12-14.” The record also contains Williams’ counsel’s affidavit stating that the claims adjuster for the insurer agreed to convey Williams’ settlement demand to Dr. Martin, who had closed his practice and relocated to an unknown address. Although Williams argues that her counsel “gave the best notice possible to [appellants], under the circumstances,” the record contains no evidence that counsel ever directed the demand by certified or registered mail to appellants in compliance with the statute. Because of that non-compliance, the trial court erred in awarding prejudgment interest on unliquidated damages.

Moreover, it appears that the trial court erroneously considered the award of punitive damages in determining whether to award prejudgment interest. See Gen. Motors Corp. v. Moseley, 213 Ga. App. 875 (447 SE2d 302) (1994). Inasmuch as the compensatory award of $20,000 was less than the unliquidated demand of $25,000, the award of prejudgment interest could not be sustained in any event.

2. Appellants contend that the award of punitive damages should be reversed because there was no clear and convincing evidence of wilful, wanton, or malicious conduct as required by OCGA § 51-12-5.1. We disagree.

During the entire time he treated Williams and other patients, Dr. Martin was using unprescribed, addictive drugs and was taking Prozac to control symptoms of clinical depression. He was observed to stare vacantly at his patient for long periods; displayed dramatic mood swings; perspired profusely when the room was not hot; and made professional decisions that led a colleague to conclude that his practice was “out of control.” The emergency suspension of his professional license ultimately forced Dr. Martin to seek treatment for drug abuse. Dr. Martin’s extended treatment of Williams while impaired demonstrates such an entire want of care which would raise the presumption of conscious indifference to consequences so as to justify the jury’s punitive damages award.

Appellants also assert the trial court erred in failing to bifurcate the proceeding on the issue of punitive damages as required by OCGA § 51-12-5.1 (d). However, appellants waived such an objection by acquiescing in the form of the verdict and failing to raise the issue at trial. See Shaw v. Ruiz, 207 Ga. App. 299 (1) (428 SE2d 98) (1993).

3. Appellants next contend that the court erred in denying their motion in limine and admitting evidence of Dr. Martin’s drug addiction and the subsequent suspension of his professional license.

“[Ajdmission of evidence is within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion. Evidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence. [Cit.]” Mantooth v. State, 197 Ga. App. 797, 800 (5) (399 SE2d 505) (1990). In the instant case, we find no abuse of discretion in the trial court’s decision to admit evidence of Dr. Martin’s substance abuse during the period of his treatment of the appellee. Moreover, “[t]he expert’s credentials are relevant to the weight and credit to be given by the jury to his testimony. [Cit.]” Jones v. State, 189 Ga. App. 232, 233 (1) (375 SE2d 648) (1988). Thus, evidence concerning the suspension of Dr. Martin’s dental license was admissible.

Decided December 2, 1994

Reconsideration denied December 16, 1994

Saveli & Williams, Michael K. Jablonski, Robert E. Mulholland, for appellants.

Peter G. Williams, for appellee.

4. Appellants complain of the trial court’s failure to charge the jury as requested concerning the elements of negligence, the meaning of “ordinary care” and proximate cause, the evaluation of expert testimony, and the standard required to award punitive damages. However, the charges given concerning those matters correctly stated the law and reflected the principles embodied in appellants’ requests. The court’s failure to charge in the exact language requested was not error. Turner v. Malone, 176 Ga. App. 132, 134 (4) (335 SE2d 404) (1985).

5. There is no merit in appellants’ argument that the court’s judgment failed to specify the joint and several nature of the jury’s verdict against Dr. Martin and his professional corporation. The judgment reads, “[T]he plaintiff . . . shall recover from the defendants . . . the amounts of $20,000 as compensatory damages and, in addition thereto, the amount of $30,000 in punitive damages.” The judgment is clearly joint and several.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Beasley, P. J., concur.


text:
    A94A1210.
    GRANT et al. v. PERIMETER MALL MANAGEMENT CORPORATION.
    (452 SE2d 153)
   Ruffin, Judge.

Rachel and Cham Grant appeal from the trial court’s grant of Perimeter Mall Management Corporation’s (“the mall”) motion for summary judgment.

On June 10, 1992, the Grants, an elderly Florida couple who was visiting their daughter in Atlanta, went shopping at Perimeter Mall with their daughter and her sons. The Grants stood close to the entrance of a certain store while their daughter and grandsons shopped there. While standing close to the entrance of that store, the Grants smelled a strong odor that made their throats, noses and eyes burn. After standing close to the entrance of the store for approximately five minutes, the couple walked away from the entrance because the odor was too strong. As they were walking down the mall corridor, Mrs. Grant began to feel dizzy and light-headed, then fell, breaking her hip. The Grants testified they were told by employees of the mall that the odor they smelled was caused by a fire in a trash receptacle that had recently been extinguished in the general area of the mall where they noticed the smell.

“ ‘To state a cause of action for negligence in Georgia, the following elements are essential: “(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.” ’ [Cit.]” Brown v. RFC Mgmt., 189 Ga. App. 603, 604 (376 SE2d 691) (1988). In order for a defendant to obtain summary judgment in its favor, it must conclusively negate one of the elements of negligence. Id. If the defendant is successful in piercing plaintiff’s pleadings with regard to one essential element, the defendant is entitled to summary judgment regardless of whether issues of fact remain with regard to the other elements. Id. When reviewing whether the trial court properly granted a party’s motion for summary judgment, we must view the evidence in the light most favorable to the non-moving party. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The mall does not dispute that it owed the Grants, as invitees on its premises, a duty “to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. The mall contends that the grant of summary judgment was proper because the evidence established that it did not breach its duty of care to the Grants and there was no causal connection between Mrs. Grant’s fall and any duty owed by the mall to the Grants. We disagree.

The evidence shows that the officer who extinguished the fire did not follow certain procedures established by the mall for fighting fires. The security supervisor testified that the mall’s established procedure for extinguishing such fires was to remove the receptacle from the common area of the mall before extinguishing the fire. The officer who extinguished the fire testified he put out the fire inside the mall common area. The evidence also established that security officers were instructed by the mall to ascertain what was burning before attempting to extinguish the fire and to use a proper extinguisher for the type of fire. The officer who responded to the fire testified he did not know what was burning and he did not know what kind of extinguisher he used to extinguish the fire. Most importantly, the mall’s guidelines require that everyone be removed or leave the area where the fire is located before it is extinguished. The Grants’ testimony places them in the general vicinity of the fire at the time it was extinguished. The evidence of the failure of the mail’s employee to follow the mail’s established procedures in extinguishing the fire creates a jury question concerning whether the mall breached its duty to the Grants to exercise ordinary care in keeping the premises safe.

Decided November 30, 1994

Reconsideration denied December 16, 1994.

Goldner, Sommers, Scrudder & Bass, Stephen L. Goldner, Tammy S. Skinner, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, Mary K. Smith, Adam L. Appel, for appellee.

There also remains a jury question concerning whether there exists a causal connection between any breach of duty of the mall to the Grants and Mrs. Grant’s injury. A jury could find that the failure of the mall’s employee to follow established procedures for extinguishing fires resulted in more smoke being present in the mall area than would have been present if the procedures had been followed. A jury could also find that the amount of smoke present in the mall caused Mrs. Grant to feel light-headed and dizzy, subsequently causing her to fall. We reject the mall’s argument that there is no evidence of a causal connection between Mrs. Grant’s inhalation of the smoke and her subsequent dizziness and fall. She testified that after smelling the odor, which the mall’s employees told her was attributable to a fire in the mall area, she felt light-headed and dizzy and soon fell. This is sufficient to send that issue to a jury. As none of the elements of the Grants’ negligence claim is precluded as a matter of law, the trial court’s grant of summary judgment must be reversed.

Judgment reversed.

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

       The mall does not contend on appeal that the Grants had equal or superior knowledge of the fire and resulting smoke.


text:
    A94A1289.
    KARRER v. GEORGIA STATE BANK OF ROME.
    (452 SE2d 120)
   Pope, Chief Judge.

Plaintiff, Phyllis E. Karrer, appeals the trial court’s grant of summary judgment to defendant, Georgia State Bank of Rome (Bank).

On August 24, 1989, Karrer and her adult son opened a joint checking account with the Bank. At the time the account was opened, Karrer and her son signed a signature card/account agreement, which specified the terms and conditions of the account relationship. One of the specific provisions of the agreement requires that the customer, in this case Karrer, report any account problems (with some exceptions not pertinent here) to the Bank within 60 days of receipt of her statement, or else lose her right to assert the problem against the Bank.

On Wednesday, August 15, 1990, Karrer tendered a check drawn on the account in the amount of $1,510 to Casey Construction (Casey). The check was signed by Karrer and dated the same day it was made out, August 15, 1990. At the time the check was tendered, Karrer admits that she knew there were insufficient funds in the account to cover the check. Karrer’s checkbook ledger and the monthly bank statement issued by the Bank verify that when the check was tendered Karrer only had $836.94 in the account. Additionally, at no time during August 1990 was the. account balance sufficient to pay the check.

Casey also maintained a checking account with the Bank in August 1990. On Friday morning, August 17, 1990, prior to the Bank’s 4:00 p.m. cut-off time, Casey deposited the check to its account at the Bank, along with another check in the amount of $55, and received $965 in cash. On Saturday, August 18, 1990, Karrer went to the main office of the Bank and for the first time notified it that she wanted to stop payment on the check. Karrer asserts that she made this decision after meeting with Casey at approximately 6:00 p.m. on Friday, August 17, 1990. Karrer claims that it was at that time she concluded that Casey’s work was defective.

Although Saturday is not a normal banking day for the Bank, in that the Bank does not carry on substantially all of its banking functions on that day, Karrer spoke with Nan Langford, a customer service representative at the Bank, and informed her that she wanted to stop payment on the check. Karrer claims she told Langford that if a stop-payment order could not be issued Karrer wanted to deposit sufficient funds in the account to cover the check. Langford accessed the account on the Bank’s computer and informed Karrer that the check had not yet posted to the account because the account lacked sufficient funds to cover the check. Langford then contacted a Bank officer and was told that the Bank would do all that it could to stop payment on the check. At that time Karrer’s stop-payment order was accepted. Additionally, Karrer claims that Langford assured her at that time that the Bank would stop payment on the check.

The stop-payment order was not implemented before the check was returned to Casey for insufficient funds. Whether the check was actually returned on Monday, August 20, 1990, or Tuesday, August 21, 1990, is disputed by the parties. The record shows, however, that the Bank, in its regular course of business, issued a notice of insufficient funds to Karrer advising her that the check had been presented, that the available balance in the account was insufficient to cover the check, and that the check had been returned. Karrer denies ever seeing this notice. The bank statement, however, issued to Karrer for the period of July 24, 1990 through August 20, 1990, shows a $15 debit to the account for an insufficient funds item. This debit was dated August 20, 1990.

On August 24, 1990, after the Bank returned the check to Casey, Casey’s attorney mailed a letter to Karrer by registered mail, return receipt requested. In the letter, the attorney informed Karrer that the check had been dishonored by the Bank. The letter also notified Karrer that if she did not pay the full amount of the check to Casey within 30 days a civil action might be filed against her or a criminal action under OCGA § 16-9-20 would be initiated. The letter was returned by the postal authorities marked “Unclaimed.”

Both the letter from Casey’s attorney and all the mailings from the Bank to Karrer were sent to the address Karrer gave the Bank when she opened the account. It is undisputed that the address was correct as of the time of the mailings. Karrer, however, in no way responded to the notice of insufficient funds and did not notify the Bank of any problem she had after receiving her bank statement, even though she has admitted she saw the statement prior to her October 9, 1990 arrest for issuance of a bad check. Additionally, Karrer did not contact Casey and try to make the check good prior to her arrest.

The record in this case shows that from the time they opened the account, Karrer and her son never effectively reconciled their checkbooks with the bank statements provided to them by the Bank. In fact, Karrer admits that the account was an unworkable situation. The record also shows that Karrer and her son were very disorganized, to say the least, when it came to picking up their mail. Karrer has testified that many times her son would pick up the mail and simply leave it wherever he happened to be. Karrer and her son stored some of their bank records and other mail in a rented warehouse. The warehouse was not organized in any way and documents placed in it were merely placed in boxes. Karrer has admitted that upon going through the documents stored in the warehouse she found many documents she previously did not know existed.

On October 9, 1990, Casey swore out a warrant for Karrer’s arrest for the issuance of a bad check. Karrer was arrested on the same day and was subsequently indicted by the Chatooga County Grand Jury. She did not communicate to the Bank any problem she had concerning the requested stop-payment order or the return of the check for insufficient funds until June 4, 1991, approximately eight months after her arrest. Even when she closed her account on February 15, 1991, she said nothing to the Bank about its handling of the check or the stop-payment order. Karrer filed suit against the Bank on August 15,1991 alleging that the Bank’s failure to stop payment on the check and the Bank’s return of the check for insufficient funds were wrongful, unlawful and improper. Karrer also claimed that the Bank’s actions constituted a breach of the agreement between her and the Bank. The damages Karrer complains of allegedly arise from her arrest, imprisonment and subsequent indictment for the charge of issuing a bad check. On September 5, 1991, the Bank answered, denying liability and asserting various defenses. On September 13, 1993, the Bank filed a motion for summary judgment. By order dated November 9, 1993, the trial court granted the Bank’s motion. On appeal, Karrer contends that the trial court erred in granting summary judgment to the Bank. We disagree and affirm.

1. Karrer contends that when the Bank failed to process the stop-payment order and returned the check to Casey for insufficient funds, the Bank committed an act tantamount to wrongful dishonor of the check, thereby subjecting the Bank to potential liability under OCGA § 11-4-402. We reject this contention.

OCGA § 11-4-402 provides as follows: “A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.” In this case, the damages Karrer complains of all arise from her arrest, imprisonment and subsequent indictment and prosecution for the offense of issuing a bad check. Under OCGA § 16-9-20 “[a] person commits the offense of deposit account fraud when such person makes, draws, utters, executes, or delivers an instrument for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee. For the purposes of this Code section, it is prima-facie evidence that the accused knew that the instrument would not be honored if: . . . (2) Payment was refused by the drawee for lack of funds upon presentation within 30 days after delivery and the accused . . . shall not have tendered the holder thereof the amount due thereon, together with a service charge, within ten days after receiving written notice that payment was refused upon such instrument.” (Emphasis supplied.) Id.

Here, Karrer has admitted that at the time she delivered the check to Casey on August 15, 1990, she knew that her account lacked funds sufficient to cover the check. Furthermore, it is undisputed that when Casey presented the check to the Bank on August 17, 1990, there were still insufficient funds in the account. In fact, throughout August 1990, there was never enough money in the account to cover the check. Casey’s attorney notified Karrer by certified mail, return receipt requested, at the address listed on the check, that the check had been drawn on insufficient funds. A review of this notice demonstrates that it complies with the notice guidelines set forth in OCGA § 16-9-20 (a) (2) (A), (B). The notice was returned with the notation “unclaimed” and thus by statute is deemed sufficient and equivalent to having been received by Karrer. See OCGA § 16-9-20 (a) (2) (A). It also is undisputed that Karrer never tendered any money to Casey after said notice was sent. All of the above constitutes prima facie evidence that Karrer knew her check would not be honored. See Hall v. State, 244 Ga. 86, 87 (259 SE2d 41) (1979). This prima facie evidence alone amounts to sufficient probable cause to warrant Karrer’s arrest, indictment and subsequent prosecution, all of which comprise the damages Karrer complains of here. Consequently, we conclude that the Bank cannot be held accountable for such damages in the case at bar.

Karrer’s contention that she told Casey, upon presenting the check to him, that there were insufficient funds in her account to cover the check and that he should not present the check for payment until Karrer could deposit sufficient funds to her account, does not create a genuine issue of material fact in this case. OCGA § 16-9-20 (h) (1) provides in relevant part that “[i]n any civil action for damages which may be brought by the person who made, drew, uttered, executed, or delivered such instrument, no evidence of statements or representations as to the status of the instrument involved or of any collateral agreement with reference to the instrument shall be admissible unless such statements, representations, or collateral agreement shall be written simultaneously with or upon the instrument at the time it is delivered by the maker thereof." (Emphasis supplied.) Id. There is no record evidence of any simultaneously written statements, representations or collateral agreements in this case. The record shows that the check was not even post-dated. Thus, Karrer’s contention that she told Casey, at the time she issued him the check, that her account did not have sufficient funds to cover the check, is irrelevant to the case at bar because any such alleged statement is inadmissible. Therefore, such a contention neither creates a genuine issue of material fact to be resolved in this case, nor does it rebut the prima facie evidence of Karrer’s knowing issuance of a bad check.

Furthermore, Karrer is precluded from recovery against the Bank in this case because she failed to take any steps to minimize her alleged damages (i.e., her arrest, indictment and subsequent prosecution). Although a bank is liable for damages proximately caused by its wrongful handling of an item, a customer has an obligation to exercise reasonable care to minimize any damage done and if the customer fails to minimize its damages, the customer is precluded from recovery against the bank. See Donmoyer v. Columbus Bank &c. Co., 151 Ga. App. 38 (258 SE2d 725) (1979). In this case Karrer made no effort to minimize her alleged damages. The record shows that the Bank, in its ordinary course of business, sent Karrer a notice of insufficient funds prior to her arrest. The notice advised Karrer that the check had been presented and returned. Additionally, Karrer admits that she received her bank statement for the period of July 24, 1990 through August 20, 1990. This statement also indicates that the check was returned for insufficient funds. Both the notice and the statement were mailed to Karrer’s correct address. Moreover, the letter from Casey’s attorney notifying Karrer that the check was returned for insufficient funds and demanding payment was also mailed to the correct address, return receipt requested. The record shows that Karrer, either intentionally or through extreme carelessness, disregarded all these mailings. She did not notify the Bank of any problem after receiving her bank statement, even though she admitted seeing the statement prior to her arrest. Karrer also failed to contact Casey and try to make the check good prior to her arrest. Based on the above, we conclude that the trial court was warranted in finding no issue of material fact concerning damages. The damages complained of by Karrer were all directly and solely related to her own admitted carelessness and general lack of fiscal responsibility. The trial court, therefore, did not err in granting summary judgment to the Bank.

2. Karrer also is barred from recovery against the Bank in this case because she failed to meet a condition precedent to bringing suit. The agreement Karrer and her son signed at the time they opened the account contains a provision which requires them to report any account problems to the Bank within 60 days of receipt of their bank statement, or else lose their right to assert the problem against the Bank. Upon review of the record it is clear that Karrer failed to assert any problem she had with the account, relative to the stop-payment order or the return of the check to Casey for insufficient funds, within 60 days of her receipt of her bank statement for the period of July 24, 1990 through August 20, 1990. In fact Karrer did not notify the Bank of any problem she had concerning the stop-payment order or the return of the check until June 4, 1991, approximately ten months after she received the statement indicating that the check had been returned. Accordingly, Karrer has forfeited her right to challenge the Bank’s actions with respect to its handling of the check. See Jamison v. First Ga. Bank, 193 Ga. App. 219, 220 (387 SE2d 375) (1989).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Decided October 25, 1994

Reconsideration denied December 16, 1994

William U. Hyden, Jr., for appellant.

Brinson, Askew & Berry, Thomas D. Richardson, for appellee.


text:
    A94A1607.
    GEORGIA-CAROLINA PETROLEUM COMPANY, INC. v. HEAD.
    (452 SE2d 158)
   Pope, Chief Judge.

Plaintiff/appellant Georgia-Carolina Petroleum Company brought this breach of contract action against defendant/appellee Verlyn Head d/b/a Community Grocery seeking to recover the value of certain equipment installed on defendant’s property and lost profits. The trial court directed a verdict against plaintiff on one of its claims and the jury returned a verdict for defendant on the remaining claims. Plaintiff timely filed the present appeal following the trial court’s denial of its motion for new trial.

1. Plaintiff argues it is entitled to a new trial because one of the jurors failed to disclose that her husband had a business/partnership relationship with defendant. We note first that the facts are in dispute as to what the juror disclosed on voir dire concerning the business relationship between her husband and defendant. However, assuming that the juror responded untruthfully to the questions posed on voir dire, under the two-part test enunciated by our Supreme Court in Gainesville Radiology Group v. Hummel, 263 Ga. 91, 94 (428 SE2d 786) (1993), plaintiff is entitled to a new trial only if it can also show that a correct response by the juror would have provided a valid basis to challenge the juror for cause. “ ‘(A) person is not competent to serve as a juror in a cause when there exists any business relation between himself and one of the parties which may tend to influence the verdict. The reason for the rule is to eliminate those jurors whose impartiality may be called into question by the existence of a business relationship whereby the juror could be motivated by financial concerns, and to avoid forcing jurors into the position of choosing between adherence to an oath of impartiality and the pecuniary interests of a party with whom the juror has a business relation.’ (Citations and punctuation omitted.) Walker v. State, 206 Ga. App. 81, 82 (3) (424 SE2d 364) (1992).” Grady Tractor Co. v. First Nat. Bank, 213 Ga. App. 663 (446 SE2d 228) (1994). Although plaintiff argues the juror had a pecuniary interest in the outcome of the litigation because of the business relationship between her husband and the defendant, the record shows that the partnership had nothing to do with the litigation in this case; rather, it concerned an unrelated business interest, and any adverse verdict in the case at bar would not have caused the juror or her husband to experience either adverse or favorable financial consequences. Cf. Daniel v. Bi-Lo, Inc., 178 Ga. App. 849 (1) (344 SE2d 707) (1986). It follows that we find no abuse of discretion in the denial of plaintiff’s motion for new trial on this basis. Accord Hummel; Gardiner v. State, 264 Ga. 329 (3) (444 SE2d 300) (1994).

Decided November 30, 1994

Reconsideration denied December 16, 1994

Clifford S. Lancey, for appellant.

B. Dean Grindle, Jr., for appellee.

2. Having reviewed the record and transcript, we conclude plaintiff’s remaining enumerations of error are also without merit.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.