author: Blackburn, Judge.

text:
    A98A0109.
    WHEAT ENTERPRISES, INC. v. REDI-FLOORS, INC.
    (501 SE2d 30)
   Blackburn, Judge.

Wheat Enterprises, Inc., a general contractor, employed RediFloors, Inc. as a subcontractor on a renovation project relating to one site of the Citizen’s Trust Bank (the Project). After the completion of the Project, a dispute arose, and Wheat refused to pay all of the invoices it received from Redi for completed work. Redi sued Wheat, claiming a right of recovery based on contract, commercial account, and quantum meruit. Redi also sought to recover its attorney fees. The jury awarded Redi $38,715.12 in damages, $12,000 in attorney fees, and $55 in costs. Wheat appeals, claiming numerous errors.

As general contractor for the Project, Wheat hired a number of subcontractors to perform the actual renovation work. Wheat approached Redi and asked it to submit a bid indicating the price it would charge to provide and install floor coverings for three separate floors of the bank building. In February 1994, Redi submitted such a bid to Wheat in the amount of $33,587.37. After this initial bid was rejected, Redi submitted a second bid on May 11,1994, in the amount of $27,503.91; however, this bid explicitly indicated that it did “not include any of the cut pile carpet for the first floor [of the Project].” Wheat accepted Redi’s May 11 bid to work on the Project.

During the course of the Project, there were a number of changes made in both the quality and the quantity of the floor coverings originally chosen. In addition, Redi performed certain extra work not explicitly delineated in its May bid. Peter Brookner, president of Redi, testified that he discussed these changes and extra work with David Wheat, the owner of Wheat Enterprises, and received approval for them. The majority of the changes and extra work related to the first floor of the Project. As the work progressed, Redi sent invoices to Wheat from time to time which described the work performed, but provided only a total amount due. The invoices did not set out a separate price for each task completed, nor did they indicate what work was covered by the May 11 bid and what work was not covered by such bid.

Wheat paid for some of the work Redi performed on the project; however, it eventually discontinued payments, contending that it could not be determined from the invoices what work was covered by the May 11 bid and what work was “extra” to the agreement. In other words, Wheat claimed that it could not tell from the invoices whether it was being overcharged for the work delineated in the May 11 bid. Wheat does not contend that the renovation work actually performed by Redi is defective or unsuitable.

1. In three of its enumerations of error, Wheat contends that the trial court erred in denying its motions for directed verdict regarding several of Redi’s claims. “The standard of review of a trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard, and the evidence is construed most favorably toward the party opposing the motion.” State Farm &c. Ins. Co. v. Drury, 222 Ga. App. 196, 197 (1) (474 SE2d 64) (1996). Accordingly, this standard of review requires Wheat “to show that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.” (Punctuation omitted.) Grange Mut. Cas. Co. v. Demoonie, 227 Ga. App. 812 (3) (490 SE2d 451) (1997).

(a) Wheat contends that the trial court erred in denying its motion for directed verdict regarding damages, contending that Redi failed to prove its damages with reasonable certainty. Specifically, Wheat argues that Redi’s invoices combined contract work and extra work such that it was impossible to separate the two types of damages.

“As to damages, a jury must be able to calculate the amount of damages from the data furnished and it cannot be placed in a position where an allowance of loss is based on guesswork. A jury must be able to calculate loss with a reasonable certainty. The party claiming damages carries not only the burden of proving the damages, but also furnishing the jury with sufficient data to estimate the damages with reasonable certainty. It is not necessary, however, that the party on whom the burden thus rests should submit exact figures.” (Citations and punctuation omitted.) Paul Davis Systems of Savannah v. Peth, 201 Ga. App. 734, 735 (1) (412 SE2d 279) (1991).

In support of its claims for damages, Redi provided (1) invoices indicating the amount of the outstanding balance owed by Wheat for all work done by Redi; (2) testimony from Brookner as to the approximate cost of the carpeting installed; and (3) approximate quantities of the carpeting installed. Using this evidence, along with prices listed in Redi’s May 11 bid, the jury had evidence to determine damages in this case with a reasonable certainty. Furthermore, as the jury could have awarded damages based completely on Redi’s account claim without regard to the May 11 bid, Wheat’s argument that Redi was required to distinguish between bid work and extra work is not dispositive of this issue. Accordingly, we cannot say that the trial judge improperly denied Wheat’s motion for directed verdict in this regard under the any evidence standard.

(b) Wheat next contends that the trial court erred in denying its motion for directed verdict with regard to Redi’s claim that it was entitled to recover under the theory of commercial account. Once again, this contention must be judged under the any evidence standard, and the facts must be construed in favor of Redi. Drury, supra; Demoonie, supra.

Commercial account “means an obligation for the payment of money arising out of a transaction to sell or furnish, or the sale of, or furnishing of, goods or services.” OCGA § 7-4-16. “An action on open account is a simplified pleading procedure where a party can recover what he was justly and equitably entitled to without regard to a special agreement to pay such amount for goods or services as they were reasonably worth when there exists no dispute as to the amount due or the goods or services received. An action on open account may be brought for materials furnished and work performed. However, if there is a dispute as to assent to the services or to acceptance of the work done or as to what work was to be performed and the cost, then an action on open account is not a proper procedure.” (Citations omitted.) Watson v. Sierra Contracting Corp., 226 Ga. App. 21, 27 (b) (485 SE2d 563) (1997). Furthermore, in the absence of a liquidated demand, OCGA § 7-4-16 is inapplicable. See Noble v. Hunt, 95 Ga. App. 804, 809-810 (6) (99 SE2d 345) (1957). “A debt is liquidated when it is certain how much is due and when it is due.” (Emphasis omitted.) Continental Carriers v. Seaboard Coast Line R. Co., 129 Ga. App. 889, 890 (2) (201 SE2d 826) (1973). “A liquidated claim is an amount certain and fixed, either by the act and agreement of the parties or by operation of law; a sum which cannot be changed by the proof.” (Punctuation omitted.) Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 219 (6) (b) (489 SE2d 329) (1997).

In support of its claim based on OCGA § 7-4-16, Redi produced some evidence which satisfies the any evidence standard applicable here. Brookner testified that Redi and Wheat had been doing business for several years; that in the past their relationship was invoice-based and not contract-based; that Redi would simply send Wheat invoices which Wheat historically paid, noting the appropriate invoice number on the payment; and that Redi generally expected to be paid within 30 days of the date of an invoice. When combined with the explicit statement on the May 11 bid that it did not cover the entirety of the work to be done on the Project, Redi’s past dealings with Wheat provide some evidence that the parties intended their relationship to go beyond their contract, whether in part or completely, thereby supporting the claim of a commercial account. Furthermore, Brookner testified that he discussed both the quantity and the price of extra work with David Wheat and that David Wheat agreed to such terms. Accordingly, there was some evidence that the work performed by Redi was requested, assented to, and accepted by Wheat, making a claim under OCGA § 7-4-16 applicable. Such evidence also provides a basis to determine that the debt sued on was liquidated, as it was discussed and approved prior to being incurred. As a result, we cannot say that the trial court erroneously denied Wheat’s motion for directed verdict on the claim of commercial account.

(c) Wheat further contends that the trial court erred in denying its motion for a directed verdict with regard to Redi’s claim for attorney fees. Once more, Wheat’s contention must be reviewed based on the any evidence standard. Drury, supra.

“OCGA § 13-6-11 allows [attorney fees] where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. Further, whether or not the defendant/appellant acted in bad faith in its contractual relations is an issue for the jury to determine.” (Punctuation omitted.) Dalton Paving, supra at 218 (5). “Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff. Bad faith other than mere refusal to pay a just debt is sufficient, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. So defendants can be held liable for attorney fees if they committed the breach in bad faith.” (Citations and punctuation omitted.) Young v. A. L. Anthony Grading Co., 225 Ga. App. 592, 593 (484 SE2d 318) (1997). “As to whether the defendant was stubbornly litigious or caused the plaintiff unnecessary trouble and expense, mere refusal to pay a disputed claim, without suit is not sufficient to award attorney fees. The key to the test is whether there is a bona fide controversy. Where none exists, forcing a plaintiff to resort to the courts in order to collect is plainly causing him to go to unnecessary trouble and expense. However, recovery of attorney fees for stubborn litigiousness is not authorized where there is a bona fide controversy.” (Citations and punctuation omitted.) Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 580 (2) (373 SE2d 758) (1988).

In this case, Brookner testified that he discussed the extra work and carpet modifications with David Wheat prior to completing them. Although David Wheat refuted this claim, the jury could have disbelieved him. As such, there was some evidence that David Wheat was attempting to avoid payment for work he authorized. See, e.g., Young, supra. In other words, there was some evidence that David Wheat may have carried out the provisions of the company’s agreement with Redi in bad faith or that there was a lack of a bona fide controversy, supporting an award of attorney fees. Accordingly, we cannot say that the trial court erred in denying Wheat’s claim for a directed verdict with regard to attorney fees.

2. Wheat contends that the trial court erred in admitting “installation tickets” offered by Redi which indicated .the installed quantities for extras and carpeting supplied by Redi. These tickets were filled in by Redi’s subcontractors and returned to Redi for its records. Wheat argues specifically that these tickets should be considered records of Redi’s subcontractors and that Redi failed to lay the proper foundation for this third-party evidence, including testimony as to the manner in which such records were kept by the subcontractors.

A trial court’s decision to admit testimony as an exception to the hearsay rule will not be disturbed absent a finding of abuse of discretion. See White v. White, 262 Ga. 168, 169 (415 SE2d 467) (1992). “OCGA § 24-3-14, the Georgia Business Records Act, governs the admissibility of business records. Subsection (b) requires that a foundation be laid through the testimony of a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of a business at the time of the event or within a reasonable time thereafter.” (Punctuation and emphasis omitted.) Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 186 (3) (450 SE2d 452) (1994).

Wheat’s argument that the installer’s tickets in this case should be considered the business records of Redi’s subcontractors is misguided. The installer’s tickets were filled out by the subcontractors during their employment by Redi for the purposes of billing and reimbursement. Redi then kept these installer’s tickets in its own files as part of its records. As such, these documents should be considered the business records of Redi, not the records of the subcontractors. Because these records were Redi’s records, not those of a third-party subcontractor, the testimony from Redi’s president was appropriate to lay the foundation for this evidence. Accordingly, Wheat’s argument in this instance must fail.

3. Wheat contends that the trial court erred in denying its motion for new trial because the verdict returned by the jury was so excessive that it evidenced gross mistake. “The grant or denial of a motion for new trial is a matter within the sound discretion of the trial court and will not be disturbed if there is any evidence to authorize it.” (Punctuation omitted.) Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858 (3) (360 SE2d 418) (1987).

“Unless a jury verdict is palpably unreasonable or excessive, or the product of bias, it will not be disturbed on appeal. OCGA § 13-6-4. . . . It is also true in considering excessiveness that an appellate court does not have the broad discretionary powers invested in trial courts to set aside verdicts.” (Citations and punctuation omitted.) Ford Motor Co. v. Stubblefield, 111 Ga. App. 331, 341 (7) (319 SE2d 470) (1984). In this case, the jury was presented with invoices totaling $29,569.42 relating to work on the first floor of the project. Considering that interest may have been included in the jury’s award, we cannot say that the trial court erred in denying Wheat’s motion for new trial on grounds that the verdict was excessive.

4. Wheat contends that the trial court erred in denying its motion for new trial because the verdict handed down by the jury includes a mixture of principal and interest that cannot be accurately reformed by the evidence. However, the transcript before us does not include the court’s charge to the jury. Nor does it contain the portion of the trial following such charge, including the publication of the jury’s verdict. As such, we have no evidence that Wheat objected to the jury’s verdict appropriately to preserve its argument for purposes of appeal. “Where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Punctuation omitted.) Mullins v. Columbia County, 202 Ga. App. 148, 150 (413 SE2d 489) (1991).

Decided April 1, 1998.

Smith, Howard & Ajax, Larry S. McReynolds, Scott D. Cahalan, for appellant.

Isenberg & Hewitt, Harriet C. Isenberg, for appellee.

5. Finally, Wheat contends that the trial court erred in denying its motion for new trial because the debts claimed by Redi were not liquidated. As we have previously concluded that such debts were liquidated, see Division 1 (b), supra, we need not consider this argument again.

Judgment affirmed.

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

       From the verdict form, it cannot be determined whether the jury based its determination of damages on the basis of contract, commercial account, or some combination thereof. The total amount of damages awarded was written in blanks following both grounds of recovery.

       Wheat concedes, however, that, with regard to the main floor of the Project, the jury could have calculated damages based on the contract along with evidence of carpet prices and quantities.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A98A0118.
    MAZDAK AUTO TOWING & SERVICE, INC. v. MIDCONTINENTAL GROUP, INC.
    (501 SE2d 44)
   Judge Harold R. Banke.

MidContinental Group, Inc. (“MG”) sued Mazdak Auto Towing & Service, Inc. (“Mazdak”) for trademark infringement, seeking $10,000 in damages and an injunction. After the trial court granted MG’s motion for summary judgment, Mazdak asserted this appeal, enumerating three errors.

This case arose after MG discovered that Mazdak was using a symbol to identify its company nearly identical to MG’s registered trademark. Both service marks depicted a crowned figure driving a horse-drawn chariot. After Mazdak ignored MG’s request that it refrain from using the symbol,, MG commenced this action.

During the litigation, MG served the following requests for admission on Mazdak: “(1) Defendant is using a service mark similar to that of Plaintiff’s and Defendant’s mark creates a likelihood of confusion, with Plaintiff’s mark, to others; and (2) Defendant’s service mark is not associated with a religious symbol or a religion.” It is undisputed that Mazdak failed to timely respond to these requests for admission. Nor does the record reflect any agreement between the parties or otherwise to extend the time for response.

MG then argued that the facts deemed admitted by Mazdak’s failure to respond to the requests for admission entitled it to summary judgment. The trial court agreed and also based summary judgment on Mazdak’s failure to timely file affidavits in response to MG’s motion and its belated proffer of unnotarized and undated affidavits not based on personal knowledge at oral argument. Held:

1. Mazdak’s failure to respond to MG’s requests for admission resulted in an admission that its service mark was similar to MG’s and created a likelihood of confusion. OCGA § 9-11-36 (a) (2); West v. Milner Enterprises, 162 Ga. App. 667 (292 SE2d 538) (1982). This admission established a prima facie violation of OCGA § 10-1-450 (1), the statute prohibiting the nonconsensual use of colorable imitations of registered trademarks in connection with the advertising of any goods or services, if likely to cause confusion or mistake. OCGA § 10-1-450 (1). Mazdak’s admission that MG’s service mark was not associated with a religious symbol or a religion precluded its argument that registration was improperly granted as a service mark which falsely suggested a connection with a religious belief or institution. OCGA § 10-1-441 (2); see Diedrich v. Miller & Meier &c., 254 Ga. 734, 735 (334 SE2d 308) (1985) (a trademark must be registered before an action will lie for its infringement).

Mazdak argues that responses to the requests for admission were unnecessary because the questions raised had already been asked and answered via its principal’s testimony at an unrecorded arbitration hearing that the service mark had deep spiritual meaning to him. Absent a showing that Mazdak presented this argument to the trial court, we cannot reach it. This Court reviews enumerations to correct errors committed by trial courts. It lacks jurisdiction to consider arguments presented for the first time on appeal. Jackson v. Ga. Lottery Corp., 228 Ga. App. 239, 245 (2) (491 SE2d 408) (1997); McDaniel v. State, 221 Ga. App. 43, 47 (1) (470 SE2d 719) (1996); see Nowell v. Fain, 174 Ga. App. 592, 593 (330 SE2d 741) (1985).

2. The trial court’s refusal to consider affidavits opposing MG’s motion for summary judgment which were not filed “prior to the day of the hearing” does not require reversal. OCGA § 9-11-56 (c). Untimely filed affidavits are barred unless the trial court permits them to be considered. Dutton v. Dykes, 159 Ga. App. 48, 49 (1) (283 SE2d 28) (1981). We decline to hold that the trial court abused its discretion in refusing to consider the affidavits when Mazdak’s sole purported basis for seeking relief from this ruling was “oversight.” Id. Furthermore, in the absence of a transcript of the hearing, we must assume the correctness of the trial court’s rulings, including its finding that even with consideration of the excluded affidavits, Mazdak failed to establish that the trademark was not entitled to be registered. Hosseini v. Donino, 222 Ga. App. 697 (1) (475 SE2d 665) (1996).

Decided April 1, 1998.

Sean McLaughlin, for appellant.

Thomas C. Blaska & Associates, Joseph G. Mitchell, for appellee.

Mazdak argues that its failure to file a response to the motion for summary judgment (and presumably the accompanying affidavits) prior to the hearing was a harmless error caused by its counsel’s admitted ignorance of Georgia law. Mazdak’s failure to provide a hearing transcript prevents us from ascertaining whether this argument was raised for the first time on appeal. Jackson, 228 Ga. App. at 245 (2).

3. Mazdak argues that the trial court erred in excluding as hearsay two books published in Iran. Mazdak’s failure to proffer the books into evidence or provide a transcript of the hearing leaves us with nothing to review. See Bagley v. CSX Transp., 219 Ga. App. 544, 547 (465 SE2d 706) (1995); Leonard v. Ognio, 201 Ga. App. 260, 262 (410 SE2d 814) (1991). Mazdak’s failure to demonstrate error affirmatively by the record compels us to affirm. Jackson, 228 Ga. App. at 245 (2).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       The record contains no response to MG’s motion for summary judgment. Nor is there any record of the hearing on the motion for summary judgment.

       Moreover, according to the trial court, the affidavits proffered at the hearing were not notarized.

       Mazdak’s counsel, who represented it in the trial court and on appeal, is a member of the Alabama bar, appearing pro hac vice.


author: Beasley, Judge.

text:
    A98A0164.
    PRIMAS v. THE STATE.
    (501 SE2d 28)
   Beasley, Judge.

Primas was convicted by a jury and sentenced on two counts each of armed robbery, aggravated assault, and entering an auto, and one count of possession of a firearm during the commission of a crime. The trial itself was recorded and transcribed.

Primas contends he has been deprived of effective assistance of counsel both at trial and on appeal because the law does not require that voir dire and opening and closing arguments be reported, making it impossible to determine whether there was error in those proceedings. He does not suggest there was any. Primas’ present counsel was appointed to represent him on appeal about six and a half months after trial.

1. In defendant’s brief, he focuses on voir dire and does not develop a rationale for challenging the opening and closing arguments, which are statutorily excepted from recordation in OCGA § 17-8-5 (a).

2. If there was error in the voir dire, Primas waived it by failing to object at trial. “To raise an issue as to error in the conducting of the voir dire, objection must be made in the trial court to preserve the issue for appeal.” Any objection and the court’s ruling would have been reported had there been such, as was done when objection was voiced during opening statement. After the jury was selected, Primas’ trial counsel expressly stated he had “no challenge to the jury constitution.”

Primas does not contend his trial counsel was ineffective in any particular manner but only that possible error occurred during voir dire or counsel may have been ineffective, but he will never know because there is no record. He simply argues he “has no idea” if trial counsel was allowed to question the prospective jurors as allowed by law or whether any other legal mistake transpired. But he must show error in order to win a new trial.

In State v. Graham, which reversed the decision of this Court, the Supreme Court held that a transcript of voir dire is not mandatory in non-capital felony cases, i.e., it is not a part of the proceedings which must be taken down in accordance with what is now OCGA §§ 5-6-41 and 17-8-5. This is so even where the statutory methods for perfecting a record from recollection are unavailable due to lack of participants’ recall. Primas does not suggest that something objectionable to him occurred but only that neither trial counsel nor the court could remember what transpired when it became desirable to test the proceedings.

Decided April 1, 1998

Donald W. Rogers, for appellant.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

Primas admits Graham is on point but urges readoption of this Court’s “reasoned opinion which addressed the exact problem which faces appellant herein.” That is beyond our power, as “we are constrained to apply the holding of Graham”

Although Primas blames trial counsel for failing to move for reporting of the entire trial under OCGA § 5-6-41, and suggests that if he were not indigent the court would have granted it, he acknowledges that he was not entitled to such a record. No constitutional equal protection deprivation is asserted. If Primas’ position is that the Supreme Court’s interpretation of the two statutes deprived him of equal protection or due process of law, because he is indigent, his appeal must be to the Supreme Court. Ga. Const. Art. VI, Sec. VI, Par. II (1).

Primas’ claim that he is unable to prepare an appeal without a complete transcript that includes the voir dire also fails under Graham.

In sum, a general unspecified hope of reversible error during voir dire does not win a new trial on the ground that a record should have been made so as to accommodate a search for error now buried in unrecorded history. A fear that the statutory questions in OCGA § 15-12-164 may not have been asked or that the oath may not have been given must be met with the rule that, unless shown otherwise, the trial court is presumed to have followed the law.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

        State v. Graham, 246 Ga. 341, 342-343 (271 SE2d 627) (1980).

       Id.

        Marshall v. State, 239 Ga. 101,103 (2) (236 SE2d 58) (1977) (no error where no harm shown by state’s failure to record whole voir dire); Smith v. State, 251 Ga. 229, 230 (2) (304 SE2d 716) (1983) (omission of voir dire from record not reversible error absent allegation of harm resulting from omission); Williams v. State, 265 Ga. 681, 683 (3) (461 SE2d 530) (1995) (no reversal simply because voir dire, opening statements and closing arguments not transcribed where defendant failed to demonstrate harm or prejudice stemming from absence of transcript); Mapp v. State, 204 Ga. App. 647, 648 (2) (420 SE2d 615) (1992) (“appellant must show harmful error in the voir dire proceedings by objection and a ruling thereon”).

       Supra, 246 Ga. 341.

        Graham v. State, 153 Ga. App. 658 (266 SE2d 616) (1980) (appellant, but not the trial judge, did recall a prejudicial statement by a prospective juror; failure to record voir dire reversible error).

       Supra, 246 Ga. at 343.

        Quick v. State, 166 Ga. App. 492, 496 (5) (304 SE2d 916) (1983).

       Id. (judge not required to order transcription of all voir dire even in response to a motion to do so).

       See also Aiken v. State, 226 Ga. 840, 842-843 (1) (178 SE2d 202) (1970) (appellant’s counsel's argument that he cannot properly represent appellant without a transcript of voir dire, opening and closing, without more, is without merit).

       Compare Woody v. State, 229 Ga. App. 823 (494 SE2d 685) (1997) (reversal warranted where there is no record of a factual basis for a plea and no transcript of the plea hearing).

        Merrill v. State, 201 Ga. App. 671, 672 (1) (411 SE2d 750) (1991); Bridges v. State, 227 Ga. 24 (1) (178 SE2d 861) (1970).


text:
    A98A0213.
    HORNE v. THE STATE. GREEN v. THE STATE.
    A98A0214.
    (501 SE2d 47)
   Beasley, Judge.

Tried together, Erlando Vashawn Horne and Marshall E. Green were convicted of two counts of armed robbery (OCGA § 16-8-41). In their separate appeals from the denial of their motions for new trial, Horne and Green challenge the sufficiency of the evidence on grounds the testimony of two alleged accomplices was incredible and conflicting. This being a matter for the jury to decide, their argument fails. Horne also claims his counsel was ineffective. This enumeration fails because Horne provides no evidence or valid argument demonstrating any deficiency or prejudice.

1. Regarding sufficiency of the evidence, the standard of review is set out in Jackson v. Virginia: “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Viewed in this light, the evidence showed that during his lunch break Green drove Horne to Macon where they jointly persuaded two others, Davis and Johnson, to return with them to the nearby town of Gray to rob the Food Lion store where Green was employed that day. While driving back to Gray, Green stopped at a department store so that Horne, using Green’s money, could buy bandannas to mask their faces during the robbery. Green outlined a plan in which the other three would come to the back door of the store right after it closed, where he would be waiting to let them in. The three would go to the front of the store where two store employees would be counting the day’s receipts.

Green took the three to Horne’s home and returned to work. Horne obtained a bookbag and a sawed-off shotgun and walked with Davis and Johnson to wait outside the store. Meanwhile, Green arranged with a supervisor to complete his duties near the back door early so he would be in another part of the store when the accomplices entered. Soon after the store closed Green let the accomplices in. They donned their bandannas and proceeded to the front of the store. Horne disabled the phone and stood as a lookout while Davis threatened the two store employees with the shotgun and Johnson put the money in the bookbag. One store employee recognized Horne. After the three escaped, Davis and Johnson met up with Green and divided the money, with Green taking Horne’s share. Green drove them back to Macon.

Davis and Johnson pleaded guilty to the crimes and testified against Green and Horne. In addition to their testimony and the testimony of the store employees, the sheriff testified Green told him he had given Horne’s share to Horne’s father. Another officer took an oral and a written statement from Horne in which he admitted participating in the robbery. This is ample evidence to sustain Green’s and Horne’s convictions. The court did not err in denying their motions for new trial on this ground.

Defendants nevertheless claim the testimony of Davis and Johnson should not have been believed because they were not entirely consistent about the purchasing and wearing of the bandannas. Nor did these witnesses agree on how the weapon was disposed of. Also, Davis had signed a statement stating Horne had nothing to do with the robbery. But “[qjuestions as to the credibility of witnesses are within the exclusive province of the jury. On appeal of a criminal conviction this Court does not weigh the evidence or determine the credibility of witnesses, but determines the sufficiency of evidence. [Cits.]”

It is also “settled law in this State that the testimony of one accomplice may be corroborated by the testimony of another accomplice.” Although portions of their testimony may be inconsistent or conflicting on several details, “their testimony with regard to [defendants’] aid to them was sufficiently corroborative to establish that [defendants were] party to the [robbery].” The testimony of the other witnesses and Horne’s statement to the police constituted corroboration.

2. Horne claims he received ineffective assistance of counsel. His motion for new trial did not enumerate this as a ground, nor was it amended to include this ground even though he was appointed new appellate counsel ten months before the court ruled on the motion, and even though appellate counsel filed a brief in the trial court arguing this point as “an additional factor” warranting a new trial. The court denied the motion, noting that it had considered the motion as well as the brief and that “oral argument” had been waived, as indeed it expressly had been. No evidentiary hearing was held nor requested.

A motion for new trial may be amended any time prior to the court’s ruling thereon. If Horne’s brief did not amend his motion for new trial to include the ineffective assistance claim, then the claim was waived, for new counsel had ample opportunity to raise the ground at the trial level.

A brief normally does not serve such a purpose. Maner v. Robinson, a civil case, held a brief did not amend the new trial motion to include additional grounds. In Edwards v. State the defendant similarly failed formally to amend his new trial motion to include an ineffective assistance claim, even though he argued it in his brief. But Edwards held that even without the formal amendment of the motion, the trial court in its discretion had implicitly allowed the motion to be amended. Edwards explained that in addition to the brief a hearing had been held at which defendant had had the opportunity to address the ineffective assistance claim, and that the trial court’s order denying the motion for new trial stated it was denied on each and every ground.* The order did not state the ineffective assistance claim had been waived. Having been raised and ruled on, the claim was reviewable on appeal.

Similarly, because the order in this case states the court considered Horne’s brief and the citation of authority contained therein, its denial of the motion included a denial of the ineffective assistance claim argued in the brief. The court implicitly allowed an amendment of the new trial motion. The claim is reviewable.

“In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. A defendant must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.”

Horne fails to make the requisite showing. He expressly waived oral argument and failed to request an evidentiary hearing. Dawson v. State held that “[w]hen appellate counsel raises the issue of ineffective assistance of counsel in an amended motion for new trial, appellate counsel must request a hearing on the issue. If no such request is made, the right to a hearing is waived.” Dawson explained further that an evidentiary hearing may not always be needed to determine the merits of an ineffective assistance claim. “Each case must be considered on its individual facts. Generally if the claim of ineffectiveness relates to matters outside of the record, then trial counsel’s testimony will usually be needed. Likewise, if the claim involves matters during the course of the trial as shown by the transcript, then trial counsel’s testimony may not be required.”

Decided April 1, 1998.

Lawrence, Ford & Ridgeway, Francis N. Ford, for appellants.

Fredric D. Bright, District Attorney, Richard M. Gailey, Jr., Assistant District Attorney, for appellee.

Horne’s first complaint about his trial counsel’s conduct was that counsel presented four character witnesses as the sum total of the defense. Determining which witnesses to call is a classic example of a decision relating to matters outside the record. Absent evidence to the contrary, the decision is presumed strategic and cannot serve as grounds for ineffective assistance.

Horne’s only other complaint about trial counsel’s conduct is his failure to make or reserve objections to the jury charge. This alleged error was made during the course of the trial as shown by the transcript; it can be determined without an evidentiary hearing. But Horne identifies no jury instructions that were erroneous or should have been given. Green, whose trial counsel did reserve objections and who now has the same appellate counsel as Horne, does not identify any errors in the jury charge. Trial counsel for each defendant admitted the court charged everything they requested.

The record shows Horne failed to carry his burden of proof. The court’s denial of a new trial on the ground of ineffective assistance is not clearly erroneous and must be upheld.

Judgments affirmed.

Pope, P. J., and Ruffin, J., concur.

       (Emphasis omitted.) 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

       See OCGA §§ 16-2-20; 16-8-41 (a).

        Moore v. State, 219 Ga. App. 818, 819 (467 SE2d 5) (1996); see Spear v. State, 228 Ga. App. 112 (1) (491 SE2d 164) (1997) (jury determines credibility of accomplice’s testimony).

       (Citations and punctuation omitted.) Brown v. State, 188 Ga. App. 266 (372 SE2d 832) (1988); see Riley v. State, 268 Ga. 640 (491 SE2d 802) (1997); Blalock v. State, 250 Ga. 441, 443 (4) (298 SE2d 477) (1983).

        Allen v. State, 224 Ga. App. 324, 325 (3) (480 SE2d 328) (1997); see Allen v. State, 222 Ga. App. 492, 493 (474 SE2d 698) (1996) (“there is little significant dispute between the accomplices as to the nature of the overall criminal enterprise or defendant’s role in it”).

       OCGA § 5-5-40 (b).

       See Miller v. State, 226 Ga. App. 509, 516 (6) (486 SE2d 911) (1997); see generally Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

       166 Ga. App. 514 (1) (304 SE2d 569) (1983).

       See F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 823 (4) (354 SE2d 6) (1987) (mentioning new ground in oral hearing did not amend motion for new trial).

       220 Ga. App. 74, 75 (1) (467 SE2d 379) (1996).

       Id. at 75.

       (Citations and punctuation omitted.) Hollis v. State, 225 Ga. App. 370, 371 (3) (484 SE2d 54) (1997); see Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995).

       258 Ga. 380, 381 (2) (369 SE2d 897) (1988).

       Id. at 381 (3).

        Dawson v. State, 186 Ga. App. 718, 721 (6) (368 SE2d 367) (1988), rev’d in part on other grounds, 258 Ga. 380 (369 SE2d 897) (1988).

        Thomas v. State, 268 Ga. 135,139 (12) (485 SE2d 783) (1997) (“[i]n the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy’); Brewer v. State, 219 Ga. App. 16, 21 (7) (463 SE2d 906) (1995) (same).

        Edwards, supra, 220 Ga. App. at 75 (1) (“‘“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” ’ ”).


text:
    A98A0268.
    GRANT v. THE STATE.
    (501 SE2d 27)
   Judge Harold R. Banke.

A jury convicted Lonnie Grant of the offenses of misdemeanor possession of marijuana and driving under the influence of alcohol. During the trial, Grant readily admitted having the marijuana on his person but denied driving the car. He claimed that a stranger, whom he had just met, was driving, “ ‘cause my license is suspended. I don’t drive, plus I was drunk.” After Grant emphatically declared on cross-examination that “I never drive drunk with a suspended license,” the trial court permitted the prosecutor to inquire whether the Department of Public Safety had, in fact, suspended his license. The court sentenced Grant to concurrent 12-month sentences on each count. Held:

Grant’s sole enumeration of error is that the trial court erred in imposing sentence on him after he raised a challenge to the voluntariness of his prior DUI guilty plea entered nearly a year earlier in another county. He contends that once a defendant raises the issue of whether an intelligent and voluntary waiver was made with respect to a prior guilty plea, the State bears the burden of establishing a valid waiver occurred. Manker v. State, 223 Ga. App. 3, 6 (5) (476 SE2d 785) (1996). See Pope v. State, 256 Ga. 195, 209 (17) (345 SE2d 831) (1986) (presuming waiver from a silent record is impermissible).

Grant’s reliance on Pope and Manker is misguided because the prior plea at issue here is a misdemeanor traffic conviction, not a felony. Under OCGA § 40-13-33 (a), any challenge to a misdemeanor traffic conviction must be filed within 180 days from when the conviction became final. Brown v. Earp, 261 Ga. 522, 523 (407 SE2d 737) (1991). Inasmuch as Grant failed to timely assert a challenge to that conviction, he is barred from collaterally attacking it. Walker v. State, 199 Ga. App. 701, 702-703 (405 SE2d 887) (1991).

Judgment affirmed.

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

Decided April 1, 1998.

Deborah N. Bedsole, for appellant.

Kenneth W. Mauldin, Solicitor, Donna M. Dunn, Assistant Solicitor, for appellee.

       The State nolle prossed Count 3, driving while license suspended in violation of OCGA § 40-5-121.

       We note that Grant did not contest the existence of his conviction but only challenged the voluntariness of his plea. Had the State sought to introduce evidence of the conviction, it would have been obligated to produce admissible evidence of the conviction. See Payne v. State, 219 Ga. App. 318, 319 (4) (464 SE2d 884) (1995). OCGA § 24-5-31.


text:
    A98A0536.
    MILLER v. THE STATE.
    (501 SE2d 42)
   Blackburn, Judge.

Bobby Ray Miller appeals his conviction of theft by taking a motor vehicle. Miller raises several enumerations of error regarding the trial court’s denial of his motion for new trial.

1. Initially, Miller asserts that the trial court violated his equal protection and due process rights when it denied his motion for a free transcript of his initial trial which concluded in a mistrial.

Pursuant to OCGA § 17-8-5 (b), “[i]n the event that a mistrial results from any cause in the trial of a defendant charged with the commission of a felony, the presiding judge may, in his discretion, either with or without any application of the defendant or state’s counsel, order that a brief or transcript of the testimony in the case be duly filed by the court reporter in the office of the clerk of the superior court in which the mistrial occurred.” Therefore, on appeal from the denial of a motion for a free transcript we must determine whether the trial court abused its discretion.

In Britt v. North Carolina, 404 U. S. 226 (92 SC 431, 30 LE2d 400) (1971), the United States Supreme Court stated that two factors are relevant in evaluating a defendant’s claim of right to a free transcript: “(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” Id. at 227. With regard to the first factor, the Supreme Court noted that it “ha[s] consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. . . . [E]ven in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.” Id. at 228.

In the present case, in order to prepare for the retrial, the State ordered a transcript of the defendant’s witnesses only. The State argues that because the defendant had access to its limited transcript, he was not harmed. This argument is specious. It is difficult to imagine that it would be seriously put forth by the prosecution in this matter. While the defendant may have had a transcript of his own witnesses, he did not have any record of the testimony of the State’s witnesses. Clearly, the latter has more value to the defendant while the former has more value to the State. It is obvious that a transcript of your own witnesses does not provide the value of assistance contemplated by OCGA § 17-8-5 (b) or the Supreme Court in Britt, supra. This is especially true in a case such as this where the defense counsel’s motion for the transcript made it clear that a transcript was necessary for an effective defense as the jury from the first trial had not believed the testimony of one of the State’s witnesses. Additionally, during the motion for new trial, defense counsel testified as to specific information a transcript would have provided to assist her in her cross-examination of a State’s witness.

With regard to the second factor in Britt, supra, an adequate alternative to the transcript, the Supreme Court noted that a “defendant who claims the right to a free transcript does not . . . bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight.” Id. at 230. The record before us contains no evidence of any alternative to a free transcript. In fact, defense counsel paid for the transcription of one of the State’s witnesses out of personal funds because she knew the transcript would be necessary for the second trial.

The present case is distinguishable from Chance v. State, 172 Ga. App. 299, 303 (7) (322 SE2d 741) (1984), relied upon by the State. Therein, we determined that the trial court did not abuse its discretion in denying the defendant’s motion for a free transcript of the first trial when the motion was made after the second trial had already begun and the only basis set forth was possible impeachment purposes that might arise during the second trial. Id. at 304. In the case before us, however, the defendant inquired about a transcript after the first trial and the motion for such was made after defense counsel was made aware that the State had ordered a limited transcript of the defense witnesses only. Under these facts the trial court abused its discretion in denying Miller’s motion for a free transcript of the first trial. Therefore, the trial court erred in denying Miller’s motion for new trial on this ground.

2. Miller contends that the State was improperly allowed to use two previous North Carolina convictions against him for the purpose of recidivist sentencing under OCGA § 17-10-7 (c). Such Code section pertinently provides that “any person who after having been convicted under the laws of . . . any other state ... of three crimes which if committed within this state would be felonies, commits a felony within this state . . . must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.”

Decided April 1, 1998.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Miller argiies that two of his previous convictions in North Carolina were for acts he committed prior to reaching 17 years of age, and that, therefore, in Georgia he would not have been convicted of the felonies, but would have been adjudicated delinquent. See OCGA § 15-11-2 (6). Miller contends that as he would not have been convicted in Georgia, the previous North Carolina convictions should not have been used against him for recidivist sentencing.

A defendant’s juvenile records can be considered by a trial court in the sentencing phase after the conviction of a felony. See OCGA § 15-11-38 (b) and Burrell v. State, 258 Ga. 841, 844 (7) (376 SE2d 184) (1989). However, in the present case, the trial court used juvenile dispositions as felony convictions for the purpose of mandatory maximum sentencing pursuant to the recidivist statute. See OCGA § 17-10-7 (c). The plain terms of such statute require that the defendant be convicted of prior crimes which if committed in this state would be felonies. A juvenile is not convicted of felonies, but adjudicated a delinquent, based on delinquent acts. The trial court erred in using Miller’s North Carolina juvenile record as felony convictions under our recidivist statute.

3. In light of our holding in Division 1, we need not address Miller’s remaining enumeration of error.

Judgment reversed.

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


author: Eldridge, Judge.

text:
    A98A0670.
    LINCOLN COUNTY et al. v. EDMOND.
    (501 SE2d 38)
   Eldridge, Judge.

Appellee James Edmond seeks recovery for injuries sustained during a multi-vehicle accident in Lincoln County. He filed suit against Lincoln County and the Lincoln County Board of Commissioners in their official capacities and against Jack Ferguson in his official capacity as Road Superintendent for Lincoln County. Lincoln County and the Board of Commissioners moved for summary judgment based upon the doctrine of sovereign immunity. Jack Ferguson moved for summary judgment based upon official immunity. The trial court denied both motions.

An application for interlocutory appeal was filed. We granted defendants’ application, and, for the reasons that follow, we reverse the denial of summary judgment as to Lincoln County and the Board of Commissioners. However, we affirm the trial court’s denial of summary judgment as to Superintendent Jack Ferguson.

Sometime in the early morning hours of October 3, 1994, after a heavy rainstorm, a tree fell across County Road 116 (Bethany Church Road) in Lincoln County. At approximately 6:00 a.m., while drinking coffee in a local service station, Road Superintendent Jack Ferguson was told by a friend that the downed tree completely covered County Road 116 and that “someone was going to wreck on it if they didn’t do something about it.”

Thereafter, Ferguson finished his coffee, got into his county vehicle, and drove to the county shop to await the 7:00 a.m. arrival of his work crew. At approximately 7:30 a.m., Ferguson sent the work crew to attend to the fallen tree on 116, while he remained at the shop. En route, another downed tree was discovered and cleared by the men. The work crew then proceeded to the site of the fallen tree on County Road 116. Upon arrival at approximately 8:00 a.m., it was discovered that an accident had occurred. Between the time that Ferguson was informed of the downed tree at 6:00 a.m. and the crew’s arrival at the tree, a tractor-trailer truck had jackknifed while attempting to avoid the tree. This caused the tractor-trailer to hit a vehicle in which appellee James Edmond was riding as a passenger. Edmond was injured.

Edmond filed suit. The complaint alleged that upon learning of the fallen tree on 116, Jack Ferguson had a duty to use his county vehicle to drive directly to the fallen tree and put out proper warning cones, lights, and devices. Instead, the complaint alleged, Ferguson improperly used his county vehicle to drive back to the shop in order to wait for other employees to report to work. Edmond contends that this improper use of a county vehicle was the proximate cause of his injuries, because such use caused a delay in warning other vehicles traveling on 116 about the fallen tree. Held:

1. Sovereign Immunity. The doctrine of sovereign immunity is applicable to the counties of this state. Gilbert v. Richardson, 264 Ga. 744, 747 (452 SE2d 476) (1994). However, “sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.” Gilbert, supra at 748. To that end, OCGA § 33-24-51 provides in pertinent part that a county is authorized to purchase insurance to cover liability for injury arising by reasons of the “operation[ ] or use of any motor vehicle.” OCGA § 33-24-51 (a). Further, if such insurance is purchased, “governmental immunity shall be waived to the extent of the amount of insurance so purchased.” OCGA § 33-24-51 (b). Clearly, this is a legislative act that “specifically provides that sovereign immunity is waived and the extent of such waiver.” Gilbert, supra at 748. Moreover, there is no dispute before this Court that Lincoln County has such insurance.

However, “procurement of insurance under this statute does not constitute a waiver of sovereign immunity in regard to damages caused by the county’s negligence not connected with motor vehicles.” (Emphasis supplied.) Revels v. Tift County, 235 Ga. 333, 335 (4) (219 SE2d 445) (1975); see also Long v. Hall County Bd. of Commrs., 219 Ga. App. 853, 857 (467 SE2d 186) (1996). This point addresses the issue of causation in relation to a county’s liability for the negligent use of a motor vehicle. In that regard, the plaintiff in this tort action, as in any tort action, must prove causation and damages. “With respect to causation, to recover damages in a tort action, a plaintiff must prove that the defendant’s action [misuse of a county vehicle] was both the cause in fact and the proximate cause of [the] injury.” (Punctuation and emphasis omitted.) Rampell v. Williams, 217 Ga. App. 292, 293-294 (457 SE2d 224) (1995).

Accordingly, given that sovereign immunity may be waived in this case pursuant to OCGA § 33-24-51, the only issue is whether the injuries sustained by plaintiff Edmond were caused by the use of Jack Ferguson’s county truck. We find that they were not.

We hold that the non-use of a motor vehicle is not encompassed within the meaning of OCGA § 33-24-51 (a). In essence, Edmond’s complaint is not that Ferguson used his truck improperly by driving to the shop, but, rather, that he failed to use it at all to drive to the fallen tree. As an example, if Ferguson had been told of the downed tree while at the county shop (as opposed to the service station), waited for his crew at the shop, and never entered his truck at all, plaintiff’s allegation would be the same: that Ferguson “misused” his county vehicle by not immediately getting into it and driving to the fallen tree. We cannot agree that negligent use includes the failure to use at all.

Thus, although plaintiff has fashioned a theory under which the county may be held liable, that theory must fail because the county truck assigned to Ferguson is only tangentially related to his failure to act, which is the true heart of plaintiff’s complaint. Whether Ferguson’s failure to act was negligent and the proximate cause of plaintiff’s injuries is clearly a jury question. But, equally clearly, the absent county truck was not used so as to be “both the cause in fact and proximate cause” of the injuries sustained by Edmond. Rampell, supra at 294; see Roberts v. Burke County School Dist., 267 Ga. 665 (482 SE2d 283) (1997), reversing Burke County School Dist. v. Roberts, 220 Ga. App. 510 (469 SE2d 529) (1996). Without such “use,” plaintiff’s suit against Lincoln County and the Board of Commissioners is barred by the doctrine of sovereign immunity. The trial court’s denial of their motion for summary judgment is error.

2. Official Immunity.

A suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty. See Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d) (as amended 1991); Teston v. Collins, 217 Ga. App. 829 (459 SE2d 452) (1995). Herein, there have been no allegations of actual malice or intent to injure. Thus, suit against Ferguson, in his official capacity as Lincoln County Road Superintendent, can be sustained only if his actions were in the performance of a ministerial duty, and not a discretionary one.

It is undisputed that Jack Ferguson had a duty to remove the tree lying across County Road 116. County policy granted Ferguson the discretion to choose the manner in which this task would be performed. Such “discretion,” however, did not change the fact that the tree must be removed. “[W]hen [the county] engages in the work of opening, closing, [clearing off,] or repairing a street, or building a sewer, and is thus engaged in the physical execution of the work, it is evidently in the discharge of duties purely of a ministerial nature. It follows that the actual progress of such work by a county is of a ministerial character, and that the duties of a road supervisor in carrying out the physical details of the work are likewise ministerial in nature.” Joyce v. Van Arsdale, 196 Ga. App. 95, 97 (395 SE2d 275) (1990).

Accordingly, we find that the removal of the tree across the county road was the performance of a ministerial duty, not a discretionary one, regardless of the elements of “discretion” that may be present during the execution of the mandatory job. “[T]he execution of a specific task is characterized as ministerial even though the manner in which it is accomplished is left to the employee’s discretion.” Joyce, supra at 97, citing Miree v. United States, 490 FSupp. 768, 773-774 (N.D. Ga. 1980). As such, suit against Ferguson is not barred by official immunity. The trial court properly denied his motion for summary judgment.

Decided April 1, 1998.

Barnhart, O’Quinn & Williams, Michael A. O’Quinn, Anne H. Whipple, for appellants.

Murray & Stewart, Malcolm S. Murray, Larry E. Stewart, Webb, Carlock, Copeland, Semler & Stair, Frederick M. Valz III, Jessica D. McKinney, for appellee.

Moreover, this is not a plain and indisputable case where issues of negligence and proximate cause can be decided by the court as a matter of law on motion for summary judgment. “Ordinarily, what is negligence, contributory negligence, proximate cause, etc., are questions of fact for the determination of the jury, and it is only in plain and unmistakable cases that the court will undertake, as a matter of law, to solve such questions.” (Punctuation omitted.) Pace v. M. E. Hunter & Assoc., 195 Ga. App. 23, 25 (3) (392 SE2d 545) (1990). Under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), on motion for summary judgment, the trial court must give the plaintiff, as the non-moving party, the benefit of all reasonable, favorable inferences, and the facts must be viewed in a light most favorable to the denial of the motion. Id.

Herein, there is evidence that for approximately two hours after allegedly being informed of the hazardous conditions created by a downed tree covering County Road 116, Jack Ferguson allegedly failed, as a part of his ministerial duties, to take action to remove the tree or to warn of the hazard created by the tree. During this two-hour period, an accident occurred that was allegedly caused by the presence of the fallen tree in the road and the lack of warning thereof. Plaintiff was injured during the accident. Thus, whether Jack Ferguson negligently performed his ministerial function to remove the fallen tree or to warn thereof is a jury question. As such, the trial court’s denial of Ferguson’s motion for summary judgment was not error as a matter of law.

Judgment affirmed in part, reversed in part, and remanded for disposition not inconsistent with this opinion.

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

       Ferguson, disputes that he was told the road was completely blocked. Otherwise, “[i]f the road had been completely blocked, I assume that I would have went on over there and set up the pickup with the flashing lights on it and then called for help when they [the work crew] got to the shop.”

       By extension, policemen who do not respond timely to a 911 call have “misused” their vehicles, and firemen who are late on arrival have “misused” their vehicles.


author: McMurray, Presiding Judge.

text:
    A98A0695.
    IN THE INTEREST OF J. M. B., a child.
    (501 SE2d 259)
   McMurray, Presiding Judge.

In an action filed by the Athens-Clarke County Department of Family & Children Services (“DFACS”), the juvenile court terminated the parental rights of appellant-respondent, the natural mother, to the child J. M. B., after it found clear and convincing evidence of parental inability meeting the requirements of OCGA § 15-11-81 (a). In her sole enumeration of error, appellant challenges the sufficiency of the evidence to support the juvenile court’s determination that any deprivation suffered by J. M. B. was caused by a lack of parental care or control. Held:

“The question on appeal is whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, ‘any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ [Cits.]. . . Pursuant to OCGA § 15-11-81 (a), a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is ‘clear and convincing evidence of parental misconduct or inability.’ ... [A] finding of ‘parental misconduct or inability’ must rest on clear and convincing evidence showing: 1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If the first prong of the test is met, the trial court then considers whether the termination of parental rights is in the child’s best interests.” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243).

Viewed in the light most favorable to the juvenile court’s determination, the evidence revealed the following: J. M. B. was born on June 14, 1991. Two weeks after her birth, appellant sent J. M. B. to live with an aunt, where she stayed until she was 13 months old. Appellant retrieved J. M. B. in May 1992 and from that time “until October of 1992, [appellant and J. M. B.] stayed with [appellant’s] grandmother in Washington, Georgia. . . . And then sometime in November of ’92, [appellant and J. M. B.] left and went to Houston, Texas[.] . . . [Appellant] ran into hard times and, . . . went to stay with [her] father, who at that time was living in Houston, Texas.” Appellant returned to Atlanta, Georgia in April or May 1993 but by June 1993, appellant left J. M. B. with Sheila Smith, appellant’s first cousin, in Athens, Georgia. At that time, appellant “did not have stable housing.” Sheila Smith agreed to keep J. M. B. for the summer while appellant got settled in Atlanta and attended school at Georgia State University. Sheila Smith expected that “when she [appellant] got straightened out, for her to come back and pick her [J. M. B.] up.” But appellant did not pick up J. M. B. at summer’s end and J. M. B. has “been with [Sheila Smith] ever since [she] took [her] in.” Appellant made no arrangement for the support of J. M. B. Her only contributtons were “fifty dollars in a birthday card . . . and some clothing. . . .” When Sheila Smith asked appellant to keep her daughter, J. M. B., so Sheila Smith could do her annual training for the Army, appellant “said that, no, she was moving and she didn’t have time.” Sheila Smith lost contact with appellant, and did not know when or if appellant would retrieve the child. Consequently, in June 1994, Sheila Smith contacted DFACS and applied to become J. M. B.’s “relative foster parent.” At that time, the department took custody of the child. In an order dated June 18, 1994, J. M. B. was officially placed with DFACS and has lived with Sheila Smith ever since. DFACS proposed a reunification plan but appellant did not meet with DFACS or appear before any of the citizen review panel meetings. In the years that followed, appellant met none of the goals of the reunification plan. Specifically, the citizen review panel found that appellant paid no regular child support, failed to attend a parenting class, failed to maintain a suitable residence, and failed to establish a positive relationship with the child. In fact, from April 1995 through September 1996, appellant made no contact whatsoever with J. M. B.

Finally, in late September 1996, Carol Land, the DFACS caseworker, reached appellant by telephone at the number she had been consistently calling since taking over the case file. Carol Land testified that appellant admitted receiving the panel review recommendations by mail. Carol Land also confirmed she had appellant’s correct mailing address. In her conversation with appellant, Carol Land made a “last-ditch effort” to get appellant to participate in the reunification plan. After failing to show up at the first appointment, appellant finally visited J. M. B. on October 1, 1997. This visit was “strained” and was “hard for the child.” As a result of appellant’s failure to complete the reunification plan, DFACS petitioned for termination of parental rights.

Appellant admitted she failed to keep Sheila Smith apprised of her address or telephone number for almost 18 months and thereafter only contacted Sheila Smith a few times. She admitted she left J. M. B. with Sheila Smith because she did not have stable housing. Although appellant planned to retrieve J. M. B. when she finished college, she conceded she did not tell Sheila Smith she intended to leave J. M. B. with her for four years. She also admitted she did not contact DFACS or attempt to keep DFACS informed of her whereabouts, even though she had received a letter regarding a 1995 hearing. With the exception of $50 and a few gifts of clothing, appellant admitted she failed to provide support for J. M. B. Appellant was employed more than 38 hours per week, had an apartment she shared with a male friend, was able to attend school at Georgia State University, and was able to afford a car in August 1996. Even before appellant bought her car, she was able to arrange transportation to visit friends and relatives. Nevertheless, appellant admits that she visited J. M. B. only four times from the date she left J. M. B. with Sheila Smith until the date of the termination hearing.

1. The evidence clearly and convincingly supports the juvenile court’s finding of “parental misconduct or inability” required by OCGA § 15-11-81 (a), as established by the criteria listed in OCGA § 15-11-81 (b) (4) (A).

(a) The unappealed finding of deprivation in the juvenile court’s order of June 28, 1994, established deprivation for purposes of the termination hearing. In the Interest of P. N. L., 228 Ga. App. 187,189 (1) (491 SE2d 434). See also In the Interest of C. D. F., 222 Ga. App. 905 (1), 907 (476 SE2d 654). Moreover, the appellant’s near abandonment of J. M. B. provided clear and convincing evidence that J. M. B. was “without proper parental care or control. . . necessary for [her] physical, mental, or emotional health. . . .” OCGA § 15-11-2 (8) (A).

(b) The juvenile court’s determination that deprivation resulted from “lack of proper parental care or control” was also supported by clear and convincing evidence. OCGA § 15-11-81 (b) (4) (A) (ii). Although J. M. B. remained in Sheila Smith’s custody from June 1993 until the evidentiary hearing in October 1996, the juvenile court was justified in finding the factors listed in OCGA § 15-11-81 (b) (4) (C) (i), (ii), and (iii). The evidence revealed that for well over a year and without valid reason appellant (i) failed to make a bona fide effort to communicate with J. M. B. in a “meaningful, supportive, parental manner”; (ii) failed to provide child support for J. M. B.; and (iii) failed to comply with the reunification plan. See In the Interest of P N. L., 228 Ga. App. 187, supra, and In the Interest of A. S. M., 214 Ga. App. 668, 672-673 (2) (448 SE2d 703).

(c) This evidence also supported a finding that J. M. B’s deprivation was likely to continue or likely would not be remedied. OCGA § 15-11-81 (b) (4) (A) (iii). That the appellant made little or no effort to support or even contact J. M. B. during the years since the deprivation proceeding coupled with her failure to implement the DEACS plan or to discuss her inability to comply with the plan or seek its modification is compelling evidence that deprivation is likely to continue. In the Interest of R. J. P., 222 Ga. App. 771, 772 (1) (476 SE2d 268). Clearly, appellant places her convenience and personal ambitions before the welfare of her child. As the juvenile court observed, appellant took the attitude she could place J. M. B. “in storage.”

(d) Clear and convincing evidence supports the court’s finding that further deprivation would likely cause J. M. B. “serious physical, mental, emotional, or moral harm. . . .” OCGA § 15-11-81 (b) (4) (A) (iv) . Appellant failed to take the steps necessary to reunite with her daughter. Although she was willing to pay $230 per month for a car, she was not willing to pay minimal child support. Moreover, when appellant was offered a “last ditch” opportunity to visit her child, she failed to take matters seriously and missed the initial meeting. Years of appellant’s conscious indifference and her cavalier attitude toward her parental duties are legitimate bases for the juvenile court’s prediction that J. M. B. would experience harm from continued deprivation if returned to appellant. See In the Interest of P. N. L., 228 Ga. App. 187, supra, and In the Interest of W. J. G., 216 Ga. App. 168, 172 (4) (453 SE2d 768).

Decided April 1, 1998.

Thomas J. Killeen, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Garcia & Powell, Tony D. Coy, for appellee.

2. Finally, the evidence satisfied the second prong of the OCGA § 15-11-81 (a) test by showing termination to be in J. M. B.’s best interest. “The same evidence showing parental misconduct or inability may, and here does, establish this requirement. [Cit.]” In the Interest of P N. L., 228 Ga. App. 187, 190 (2), supra. Moreover, the DFACS caseworker testified that J. M. B. was happy and well-adjusted and had bonded with Sheila Smith’s family, the only family she had ever really known. See In the Interest of M. R., 213 Ga. App. 460, 464 (1) (b), 465 (444 SE2d 866).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: McMURRAY, Presiding Judge.

text:
    A98A1200.
    WADE v. FIRST UNION NATIONAL BANK.
    (498 SE2d 372)
   McMURRAY, Presiding Judge.

First Union National Bank filed a dispossessory action against Aretha Wade and obtained a writ of possession on January 16, 1998. Wade filed a notice of appeal on January 26, 1998, and on the same date she filed a petition for relief under Chapter 7 of the Bankruptcy Code. On January 30, 1998, the trial court entered an order staying this dispossessory action pending the disposition of the bankruptcy proceeding.

Under these circumstances, this appeal is dismissed without prejudice, pending the resolution of Wade’s bankruptcy proceeding or lifting of the stay. Upon lifting of the bankruptcy stay, Wade may re-instigate this appeal by filing another notice of appeal within 30 days after the bankruptcy stay has been lifted. See DCA Architects v. American Bldg. Consultants, 203 Ga. App. 598, 599 (1) (417 SE2d 386).

Decided April 1, 1998.

Aretha T. Wade, pro se.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Scott N. Liebschutz, for appellee.

Appeal dismissed.

Blackburn and Eldridge, JJ., concur.


author: Eldridge, Judge. Birdsong, Presiding Judge,

text:
    A97A2079.
    BORDERS v. BOARD OF TRUSTEES, VETERANS OF FOREIGN WARS CLUB 2875, INC.
    (500 SE2d 362)
   Eldridge, Judge.

Sixty-seven-year-old Ida Mae Borders filed suit against the Veterans of Foreign Wars Club 2875, Inc. (“VFW”) for damages arising out of a fall she sustained at a VFW dance when a fellow invitee, Clarence Hawkins, staggered into her and knocked her to the floor, breaking her foot, leg, and fracturing her hip. In her complaint, Borders asserted that Hawkins was obviously intoxicated, that such intoxication presented a danger to invitees, that the VFW Club knew or should have known of Hawkins’ intoxication, and that its failure to remove him from the premises breached its duty to the plaintiff to keep the premises safe for her as an invitee. The VFW moved for summary judgment, which was granted. Here, Borders appeals the trial court’s granting of that motion.

The trial court determined that summary adjudication was appropriate because, while Borders may have established constructive knowledge of the hazard on the part of the VFW, there was “no indication that Clarence Hawkins was obviously intoxicated at the Saturday night dance,” i.e., the VFW had no actual knowledge of the hazard giving rise to a duty to remove it. In addition, the trial court found that Borders did not establish “her ignorance of the danger” so as to preclude her assumption of the risk of injury caused by “the possibility that drunken patrons would be present.”

Because (a) the record contains sufficient evidence demonstrating Hawkins’ intoxication at the dance, and (b) the VFW failed to present evidence showing Borders had actual knowledge of the specific danger presented by Hawkins, the trial court’s granting of summary judgment was error.

1. (a) On summary judgment, a plaintiff may assert a defendant’s actual or constructive knowledge of a hazard. “Whether defendants are entitled to summary judgment depends upon whether defendants presented sufficient evidence to show they had neither actual nor superior constructive knowledge of the alleged hazard.” (Emphasis supplied.) Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3 (432 SE2d 230) (1993); Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988). “Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises [for the hazard]. [T]he burden would be upon [the VFW], as the movant for summary judgment, to show that, as to its lack of constructive knowledge under either theory, no genuine issue remained.” Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988); Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 429 (408 SE2d 443) (1991).

Here, the record shows that the VFW hires security guards whose task it is to remove intoxicated patrons so they are not a hazard to other patrons. They were in Hawkins’ immediate vicinity of the bar and dance floor. In light of this information, the trial court made the factual finding that “Plaintiff may be able to establish Defendant’s constructive knowledge of the hazard posed by drunken patrons. There is some evidence that VFW’s security guards have ejected intoxicated patrons in the past. . . . There were security guards at the VFW on [that] Saturday night.” Accordingly, the trial court’s focus on the VFW’s actual knowledge of Hawkins’ intoxication was incorrect. With constructive knowledge, the issue is not what the VFW/security guards actually knew, but what they should have known.

In that regard, the record contains testimony from James Wheless, who took Hawkins to the VFW that night. Wheless stated that he picked Hawkins up around 7:00 p.m. to drive to the VFW; that Hawkins had been drinking when he picked him up; that Hawkins drank a beer in the truck on the way to the VFW; that he saw Hawkins drinking beer at the VFW; that Hawkins was removed from the VFW by security guards after Borders’ fall; that he found Hawkins intoxicated at Allen’s Bar approximately an hour later; and that Hawkins was as intoxicated at the VFW as he was at Allen’s Bar. Allen’s Bar is “where [Hawkins] hung out at. Cheap brew. Cheap brew.”

The pleadings further show that Hawkins only has one half of his stomach and admits that he cannot “handle too much alcohol”; that Hawkins was at the VFW from approximately 7:00 p.m. to 8:45 p.m. before he was ejected after stumbling into Borders; that Hawkins purchased alcohol from VFW employees during that time period; that a VFW security guard ejected Hawkins and told Hawkins that he was being ejected because he was intoxicated; that the VFW security guard told Hawkins that he could smell alcohol on Hawkins; and that a VFW security guard told Borders that Hawkins had been ejected because he was intoxicated. The record also contains an admission by Hawkins that he was openly intoxicated at the VFW.

Hawkins’ condition of intoxication was such that it was possible for a VFW employee to “smell alcohol” on Hawkins. Further, prior to the fall a VFW employee could have noticed the same degree of intoxication that was so apparent to the VFW immediately after the fall that the VFW ejected Hawkins from the premises for being drunk and permanently “banned” him from the VFW. The VFW failed to present any evidence to meet its burden on summary judgment to negate constructive knowledge of the hazard as shown by the pleadings and found by the trial court.

Accordingly, the trial court erred in granting summary judgment based on a determination that there was “no indication that Clarence Hawkins was obviously intoxicated at the Saturday night dance.” The record contains sufficient evidence of Hawkins’ intoxication to put to a jury the question of whether the VFW exercised ordinary care in failing to remove him prior to plaintiff’s fall.

(b) “In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such condition or activities.” (Punctuation omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864 (471 SE2d 866) (1996). “It is a plaintiff’s knowledge of the specific hazard which precipitates the [fall] which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.” Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (288 SE2d 846) (1982).

Further, “the defendant has the evidentiary burden as to the issue of the plaintiff’s negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent, i.e., that the defendant had actual or constructive knowledge of the existence of a hazard on its premises. Only after the defendant has produced evidence of the plaintiffs negligence does the plaintiff have the burden of producing rebuttal evidence[.]” Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997).

Herein, the VFW presented no evidence demonstrating that Borders had actual knowledge of the danger; understood and appreciated the specific, particular risk of harm associated with such danger; and voluntarily exposed herself to that risk by attending the dance. Borders had no burden to demonstrate she did not assume the risk. Accordingly, the trial court erred in determining (1) that Borders’ general awareness of “the possibility that drunken patrons may be present” at the VFW gave her equal knowledge of the specific hazard presented by an intoxicated Hawkins staggering into her and knocking her to the floor, and (2) that Borders had the burden to negate an assumption of the risk defense prior to such being raised by the VFW through the introduction of evidence.

2. The dissent’s Dram Shop analysis is present herein solely because the language of that Act is favorable to the proprietor/ defendant. Borders specifically disavows any issue with regard to the Dram Shop Act: “ ‘The Dram Shop Act’ had nothing to do with any theory of recovery asserted by Plaintiff and [ ] the defendant was in error in alleging that it controlled this action.”

Judgment reversed.

Pope, P. J., Johnson and Blackburn, JJ, concur. Andrews, C. J., Birdsong, P. J., and Ruffin, J., dissent.

Birdsong, Presiding Judge,

dissenting.

Borders contends in her brief that the VFW should be liable to her, in part, because “Hawkins was in a state of intoxication which was obvious and noticeable to the VFW Club, and . . . despite this fact the defendant had furnished alcohol to him.” This argument amounts to a claim against the VFW for serving alcohol to an obviously intoxicated person with resulting injury to the plaintiff. Borders raised this claim in the trial court and the trial court ruled the “Dram Shop” Act does not apply to this case. Although Borders does not directly attack that ruling in her enumeration of error, she brings up the issue in this court and mixes it in with the negligence issues.

There is no particular duty of a proprietor towards those injured by one to whom he serves alcohol, and there is no general claim for negligence against such a proprietor for serving alcohol. See Kappa Sigma &c. v. Tootle, 221 Ga. App. 890 (2) (473 SE2d 213). Such claims are governed by OCGA § 51-1-40, known as the “Dram Shop Act.”

OCGA § 51-1-40 (a) acts as a bar to liability of providers of alcoholic beverages except in specified instances. Subsection (a) of § 51-1-40 provides: “(a) The General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.” (Emphasis supplied.)

Subsection (b) of OCGA § 51-1-40 provides that one who furnishes alcohol to an adult (see Griffin Motel Co. v. Strickland, 223 Ga. App. 812, 815 (479 SE2d 401)) shall not be liable for injury caused by that person’s intoxication unless the person was “in a state of noticeable intoxication” and the provider furnished alcohol to him “knowing that such person will soon be driving a motor vehicle.”

The language and spirit of OCGA § 51-1-40 prohibit lawsuits against providers of alcohol except in narrow circumstances, viz., where an underaged person’s or a noticeably intoxicated person’s driving of a motor vehicle causes the claimed injuries or death. OCGA § 51-1-40 (a) and (b).

As the injury in this case was not caused by Hawkins’ driving of a motor vehicle, the case does not come within an exception named in subsection (b) to the declaration that an injury is deemed to be caused by the consumption of alcohol and not by the furnishing of alcohol. Ihesiaba v. Pelletier, 214 Ga. App. 721 (1) (a) (448 SE2d 920). Consequently, there is no causal connection between the actions of the VFW and Borders’ injuries.

The only ground on which Borders might seek to hold the defendant proprietor liable for injuries caused by another on VFW Club’s premises is founded under OCGA § 51-3-1, which establishes a proprietor’s general duty to protect invitees from the injurious consequences of a danger caused by a third person which the proprietor has reasonable cause to foresee. This applies even to criminal acts. See Confetti Atlanta, Ltd. v. Gray, 202 Ga. App. 241 (414 SE2d 265); McCoy v. Gay, 165 Ga. App. 590 (302 SE2d 130). As to non-criminal but dangerous acts of third parties, including fellow invitees, the owner’s liability is based on his reasonable cause to foresee such an incident as sued for by the plaintiff. Thus, the foreseeability to the owner of dangerous conduct must be superior to that of the plaintiff, for if the plaintiff could equally foresee such conduct or act and nevertheless enters onto the premises, she assumes the risks inherent. Sutton v. Sumner, 224 Ga. App. 857, 859 (482 SE2d 486); Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477); Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (288 SE2d 846). The proprietor is not an insurer of the safety of his guests. Congleton v. Starlite Skate Center, 175 Ga. App. 438, 441 (333 SE2d 677). Where a proprietor has no notice of particular dangerous conduct on the part of a guest, he cannot be held liable for injuries to an invitee resulting from such conduct. Hackett v. Dayton Hudson Corp., 191 Ga. App. 442 (382 SE2d 180).

Decided March 20, 1998

Reconsideration denied April 2, 1998

Jeffrey G. Gilley, John E. Kardos, for appellant.

McLeod, Benton, Begnaud & Marshall, Richard L. Brittain, Webb, Carlock, Copeland, Sender & Stair, Dennis J. Webb, for appellee.

There is no evidence giving rise to a reasonable conclusion that the VFW Club had superior actual or constructive knowledge or of the alleged danger which Borders contends caused her to fall. Further, the trial court found that Borders’ testimony in her affidavit as to Hawkins’ alleged drunkenness was inconsistent with her deposition testimony wherein she said her only knowledge of his intoxication was “hearsay” from an unnamed security guard. The trial court also found self-contradictory Borders’ deposition testimony as to how the incident occurred. Adjudging these inconsistencies against Borders as required in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) and Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383), the trial court construed Borders’ testimony least favorably to her and gave summary judgment to VFW Club.

Although the majority contends that there must have been an employee somewhere nearby who could have smelled alcohol on Hawkins or who could have seen his drunken behavior, there is no evidence to support such speculation. The majority cannot point to any such evidence because there is none. Speculation is not evidence and does not satisfy the requirement of pointing to evidence creating an issue of fact on whether the VFW had constructive knowledge of Hawkins’ intoxication. Also, the majority makes much of the VFW’s having evicted Hawkins after he fell on Borders, but this proves nothing as to what the VFW knew or should have known before he fell. Further, Borders must show that Hawkins’ allegedly drunken condition existed long enough for the VFW to have known of it or that an employee was in the immediate vicinity of Hawkins and could easily have noticed and had him removed from the VFW. See Deloach v. Food Lion, 228 Ga. App. 393, 395 (491 SE2d 845). The majority asserts that the VFW “failed to present any evidence to meet its burden on summary judgment to negate constructive knowledge of the hazard” but no such burden exists. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Accordingly, I respectfully dissent.

I am authorized to state that Chief Judge Andrews and Judge Ruffin join in this dissent.