text:
    A95A2156.
    PAPERA v. TOC RETAIL, INC.
    (463 SE2d 61)
   Birdsong, Presiding Judge.

This is a slip and fall case. Appellant/plaintiff Theresa Papera appeals from the order of the superior court granting summary judgment to appellee TOC Retail, Inc. d/b/a Majik Market.

Appellant was walking from the gasoline pump parking area of Majik Market to the ladies’ rest room. Instead of taking a more indirect route and using the sidewalk, she walked near two parked cars and placed one foot upon a curb which was painted neon yellow. She now asserts that as she stepped onto the curb, the shoe heel of her trailing foot became caught in a hole in the pavement causing her to fall. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). A movant/defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. Id. at 495. A movant/defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Id. at 491.

Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences flowing therefrom in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Id. at 495.

2. Appellant submitted evidence by way of affidavit that the hole in the pavement, “although apparent after [her] fall, was not clearly visible when considering the time of day, and dark conditions of the area, as well as the distraction of yellow paint painted on the raised edge of the nearby sidewalk.” (Emphasis supplied.) However, her prior deposition testimony reveals the following inconsistent statements as to condition of visibility and lighting in the vicinity where the hole was located: “There was lighting enough that [appellant] could see the curb”; it was light enough to see the depression or hole. Moreover, appellant testified that she could not recall whether she saw the hole before falling; that she does not recall seeing the hole, as she was looking at the curb; and that she “may have even seen the hole and been walking . . . just past it.” To the extent appellant’s affidavit asserts as fact that the hole was not clearly visible because of the time of day and degree of darkness, such evidence is inconsistent with her deposition testimony; no reasonable explanation was offered for this inconsistency. Accordingly, as to this particular evidence, we apply the rule of inconsistent or contradictory testimony from Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). The operative facts of this case are distinguishable from Sacker v. Perry Realty Svcs., 217 Ga. App. 300, 302 (457 SE2d 208), where plaintiff, although looking toward the ground, was prevented by darkness from seeing the ground in front of her.

3. Appellant contends on appeal that she fell when she stepped upon the curb with one foot and her trailing foot either caught upon the side of the hole in the pavement or got stuck therein. However, her deposition testimony contains several contradictions regarding the cause of her fall or whether she even remembers how the fall occurred; there is no reasonable explanation offered for these various inconsistencies. When we subject these unexplained contradictions to the rule of Prophecy Corp., supra, the state of the remaining evidence as to this matter is that appellant does not know exactly how her fall was caused other than she slipped and fell after putting one foot upon the curb. Any other conclusion would be based on pure supposition. Compare Kenny v. M & M Supermarket, 183 Ga. App. 225 (358 SE2d 641). “ ‘Proof of nothing more than the occurrence of plaintiff’s fall is insufficient to establish defendant’s negligence.’ ” Wilson v. Duncan, 211 Ga. App. 814, 815 (440 SE2d 550); Lee v. Peacock, 199 Ga. App. 192 (3) (404 SE2d 473).

Assuming that appellant’s testimony was not inconsistent regarding whether she remembered how her fall occurred, the trial court still did not err in granting summary judgment to appellee. By appellant’s own admission, the hole in the pavement was not concealed by darkness; it was obvious and was there to be observed by the prudent pedestrian. Broken, missing, or uneven pavement is a static condition which alone is not dangerous until someone steps on or in it. Gaydos v. Grupe &c. Investors, 211 Ga. App. 811, 813 (440 SE2d 545); accord Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28). It is common knowledge that such defects often exist in pavement and other driving surfaces, “ ‘and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a “static” defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.’ ” Gaydos, supra. “[Appellant/] plaintiff’s assertion that there was nothing about the alleged defect which would have drawn [her] attention to it cannot avail, for it does not appear [from the state of the record] that she ever looked down. [Cits.] It was incumbent upon her, as a matter of law, to use her eyesight for the purpose of discovering any discernible obstruction or defect in her path. [Cit.] Furthermore, ‘[w]arnings of . . . condition^] which are or should be obvious are not required.’ ” Emory Univ. v. Duncan, 182 Ga. App. 326, 329 (355 SE2d 446). The static condition rule is consistent with the basic premise liability rule: “ ‘The owner or occupier of land is under a duty to invitees to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care. However, there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care.’ ” Cowan v. Waffle House, 217 Ga. App. 273, 275 (456 SE2d 762); see also Souder v. Atlanta Family Restaurants, 210 Ga. App. 291 (435 SE2d 764).

Decided October 20, 1995.

Steven M. Youngelson, J. Andrew Ziolo, for appellant.

Long, Weinberg, Ansley & Wheeler, John K. Train IV, Alan L. Newman, for appellee.

4. Appellant’s claim that she was distracted by the yellow painted curb is without merit. Nothing in appellant’s deposition testimony or affidavit is adequate to raise a claim that she was actually distracted by the curbing from looking where she was walking; rather, it can reasonably be inferred from her deposition testimony only that of her own volition she was looking at the curbing while she was walking toward it. “ ‘ “One valid line of distinction existing in the so-called ‘distraction’ cases concerns the cause of the distraction. Where[, as in this case, any existing] distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.” ’ ” Yeaple v. Grand Union Co., 207 Ga. App. 15, 16 (427 SE2d 13). “It was still incumbent upon her, as a matter of law, to use her eyesight for the purpose of determining any discernible obstruction or defect in her path.” (Punctuation and emphasis omitted.) Id.

For each above-discussed reason, we find appellant’s enumerations of error to be without merit; the trial court did not err in granting summary judgment to appellee. Compare Sinclair v. Orozco, 205 Ga. App. 498 (423 SE2d 25).

Judgment affirmed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A95A1206.
    MAXWELL v. THE STATE.
    (463 SE2d 517)
   Ruffin, Judge.

Tommy Lee Maxwell was convicted of aggravated assault and possession of a firearm by a convicted felon. On appeal, he contends he is entitled to a new trial because the trial court refused to excuse two jurors who failed to answer a material question during voir dire and whose correct responses would have provided a valid basis for challenges for cause. We disagree and affirm.

During voir dire, the prosecutor asked members of the jury panel whether they knew Maxwell. Ricky Mobley responded that he had known Maxwell since Maxwell was a little boy, that he knew Maxwell’s parents well, but that he could be fair and impartial. Dorothy Robertson responded that she knew his family but could set aside her friendship with Maxwell and his family and return a verdict based solely on the evidence presented at trial. Mobley and Robertson were subsequently selected to serve on the jury.

During defense counsel’s examination of the panel, he asked whether any of them or members of their immediate families had been victims of a violent crime. Only one prospective juror responded. She indicated that her daughter had been murdered, and as counsel inquired further, she grew emotional and was unable to respond. Counsel then expressed his belief to the court that the juror would have difficulty sitting in a criminal case and asked that she be excused. The prosecutor had no questions for her, and the court excused her.

Two days later, immediately prior to opening statements, defense counsel informed the court that since the jury was empaneled, he learned that Mobley and Robertson failed to answer his question concerning their relationship to a victim of a violent crime and that, in fact, a woman named Dorothy Robertson Mitchell, who was Mobley’s sister and Robertson’s daughter, was murdered by Maxwell’s uncle. Robertson further revealed that Mitchell was previously married to Maxwell’s uncle and they had two children. Robertson and Mobley explained that they did not answer because Mitchell’s death occurred in Atlanta five or six years before Maxwell’s trial and they did not think her death had any bearing on the instant case. They admitted that although they were still affected by Mitchell’s death, they would not hold it against Maxwell nor would their knowledge of Maxwell influence them subconsciously. Over defense counsel’s objection, the court allowed Robertson and Mobley to remain on the jury. The trial court concluded that Robertson’s and Mobley’s responses did not demonstrate bias or prejudice.

1. Maxwell contends he is entitled to a new trial because Robertson’s and Mobley’s failure to answer deprived him of information concerning their possible inclination, leaning or bias relative to violent crimes and because this information bore directly on the jurors’ relationship with him. He also argues that since another juror was excused for cause because her daughter was murdered and Robertson indicated there was still “quite a bit of feeling there” relative to Mitchell’s death, there was a good faith basis for a challenge for cause..

At the outset we note that contrary to Maxwell’s contention that the excused juror was excused for cause, the record shows that the court excused the juror because she lost her composure and the court agreed that she should not sit on a jury in a criminal case. Moreover, we cannot conclude that Maxwell waived these objections based on Robertson’s and Mobley’s admissions in open court that they knew him because the record does not establish that at the time they were selected Maxwell knew about Mitchell’s death or Robertson’s and Mobley’s connection to him. Compare Sanders v. State, 246 Ga. 42, 43 (3) (268 SE2d 628) (1980).

“In order to obtain a new trial, [Maxwell] must show that the juror[s] failed to answer honestly a material question and that the correct response would have provided a valid basis for a challenge for cause.” Gardiner v. State, 264 Ga. 329, 333 (3) (444 SE2d 300) (1994). “The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial. [Cit.]” Isaacs v. State, 259 Ga. 717, 741 (44) (e) (386 SE2d 316) (1989).

The State concedes that defense counsel’s question was material. However, the record does not show that Robertson and Mobley intended to deceive defense counsel inasmuch as they were candid about their prior knowledge of Maxwell and his family. “Moreover, in view of their overall testimony, including their belief that [Mitchell’s death] did not affect their ability to be fair and impartial jurors, we do not find that either would have been excludable for cause if the information had been disclosed before trial.” Id. See also Poole v. State, 262 Ga. 668, 669-670 (2) (424 SE2d 275) (1993). Accordingly, Maxwell is not entitled to a new trial on this ground.

2. Maxwell also contends the trial court erred in imposing a longer sentence for possession of a firearm by a convicted felon than is allowed by OCGA § 16-11-131 (b). Although the trial court initially pronounced a sentence of ten years on the firearm possession conviction in open court, the prosecutor brought the mistake to the court’s attention, and the court entered a five-year sentence on that charge which is authorized by the statute. Thus, this enumeration is without merit.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.

Decided October 23, 1995.

Adams & Brooks, John B. Adams, J. Kelly Brooks, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.


text:
    A95A1389.
    LAMUNYON v. THE STATE.
    (463 SE2d 365)
   Ruffin, Judge.

This appeal arises from the brutal beating and abduction of a 31-year-old mentally retarded man. Daryle Toole pled guilty to kidnapping with bodily injury, aggravated assault, aggravated battery, robbery, and impersonating a public officer. A jury convicted Dwayne Lamunyon of kidnapping with bodily injury, robbery, aggravated assault, and aggravated battery for his role in the incident. Lamunyon appeals following the denial of his motion for new trial. For reasons which follow, we affirm.

The evidence at trial showed that late one evening, Lamunyon and Toole approached the victim in their car as he was walking down the street. Toole told the victim he was a police officer, searched him, took away a survival knife he was carrying, and told him to get into the car. Toole and Lamunyon drove the victim to a different location, ordered him out of the car, and Lamunyon hit him. As the victim ran away, Toole kicked him into a telephone pole. After the victim fell, Lamunyon stood him back up. Toole again kicked the victim to the ground, where Lamunyon kicked him. At one point, Lamunyon stood on the victim’s hands while Toole kicked him in the face. After Toole and Lamunyon kicked the victim five or six times each, they forced him back into the car and drove him to another location. At the second location, Toole and Lamunyon forced the victim to remove all his clothing, Lamunyon kicked him in the groin, and as the victim ran to the other side of the car, Toole hit him. Lamunyon and Toole eventually took the victim’s clothes, boots, and knapsack; returned to their car; and drove away, leaving the victim.

1. Prior to the victim testifying at trial, the court conducted a hearing under OCGA § 24-9-7 to determine his competency as a witness. In his first enumeration of error, Lamunyon contends the trial court erred in ruling that the victim was competent to testify. We disagree.

Everyone is presumed competent to testify, even people who have been shown to have mental disabilities. Flynn v. State, 255 Ga. 415, 419 (7) (339 SE2d 259) (1986). It is critical in determining whether a witness is competent to testify “that the witness be able to appreciate the difference between the truth and a lie and that there is the obligation to tell the truth on the witness stand.” Cook v. State, 199 Ga. App. 523, 525 (3) (405 SE2d 341) (1991). Under OCGA § 24-9-7 (a), the decision of whether or not such an individual is competent to testify is within the broad discretion of the trial court, and the court’s determination will not be disturbed on appeal absent an abuse of that discretion. Knight v. State, 216 Ga. App. 200, 201 (1) (453 SE2d 798) (1995).

Although the evidence in this case showed that the victim has only the mental capacity of a six- to eight-year-old child, he knew that if one does not tell the truth on the witness stand, “[y]ou get locked up.” When asked, the victim promised that he would answer truthfully all questions asked by the prosecutor and by Lamunyon’s attorney, and he demonstrated that he could testify about the incident. Under these circumstances, we conclude that the trial judge did not abuse his discretion in allowing the victim to testify. See Cook, supra.

2. Lamunyon next asserts that the trial court erred in improperly recharging the jury on the meaning of parties to a crime. Lamunyon argues for the first time on appeal that the court erred in charging the jury that they might find he aided or abetted if he “allow[ed] someone else to commit a crime.”

The record shows that immediately following the recharge, Lamunyon’s attorney asked the judge if he would allow her to make exceptions to the recharge. Lamunyon’s attorney then stated four specific exceptions to the charge, none of which is alleged on appeal. The State contends that Lamunyon waived his right to assert additional error regarding the recharge for the first time on appeal because he did not raise it at trial or reserve the right to object at a later time. Lamunyon, however, contends that he was not required to reserve the right to make further objections because the trial judge never specifically asked whether there were any objections to the recharge. While we agree with Lamunyon that he did not waive the right to raise the objection on appeal, we nevertheless find no reversible error.

Lamunyon was not required to object to the charge at trial. “[T]here is no requirement to enter an objection to an erroneous charge given unless the trial court specifically requires the defendant to enter objections prior to the return of the verdict or reserve the right to make such an objection.” (Emphasis in original.) Gaines v. State, 177 Ga. App. 795, 799 (1) (341 SE2d 252) (1986). Even though Lamunyon objected to the charge on other grounds, at no time did the court specifically require him to enter his objections. “Inasmuch as [Lamunyon] was not required by the trial court affirmatively to state exceptions to the charge in this case, we will not impose a waiver. . . . [Cit.]” Id. at 800.

However, viewing the recharge in its entirety, we find no reversible error. Although the contested statement was erroneous, the court’s charge as a whole repeatedly and accurately conveyed to the jury the laws concerning parties to a crime. See Heaton v. State, 214 Ga. App. 460 (6) (448 SE2d 49) (1994). “In light of the evidence against [Lamunyon], the use of this [erroneous] language, when considered in the context of the entire charge, created no reversible error. [Cits.]” Id. at 462. It is an impotent error with no promise of vigor, hence harmless. Error is the bearer of meaning, but if unaccompanied by harm, it is as meaningless as a messageless speech.

3. In his third enumeration of error, Lamunyon contends the trial court erred in failing to give his requested charge on mere association. While it is “true that mere . . . association . . . , without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction [,] . . . [t]he principles contained in appellant’s requested [instruction] are no more than corollaries ‘to the requirement that the State prove each element of the offense charged.’ ” (Citations and punctuation omitted.) Mattox v. State, 196 Ga. App. 64, 66 (3) (395 SE2d 288) (1990). The record shows that the trial court fully and accurately charged the jury on the presumption of innocence, parties to a crime, circumstantial evidence, and the requirement that the State prove beyond a reasonable doubt each and every element of the offenses charged, including criminal intent. Moreover, the trial court charged the jury on mere presence, which is the substantial equivalent of the requested charge. Estep v. State, 181 Ga. App. 842 (2) (a) (353 SE2d 913) (1987). Viewing the charge in its entirety, it was not error to refuse to give Lamunyon’s requested charge on mere association under the facts of this case. See id. See also Mattox, supra.

4. In his final enumeration of error, Lamunyon asserts that the trial court improperly charged the jury that the offense of kidnapping with bodily injury required only that the bodily injury be a mere consequence.of the kidnapping. The record shows that in its recharge, the court stated to the jury that “[i]f you kidnap and as a result of the kidnapping, or during the kidnapping, or arising out of the kidnapping of this event, the victim received bodily injury, then it would be kidnapping with bodily injury.” Lamunyon argues that a proper charge would have explained that intent to harm or proximate causes of the harm must be considered before a conviction would be authorized. We find nothing in the charge that constitutes reversible error.

A person commits the offense of kidnapping with bodily injury within the meaning of OCGA § 16-5-40 (b) when he commits a kidnapping and “the person kidnapped shall have received bodily injury. ...” The trial court’s instructions merely informed the jury that it was necessary that the injury was received during or as a result of the kidnapping. Such language is not in conflict with OCGA § 16-5-40 (b). Furthermore, Lamunyon’s concerns regarding an instruction on intent were satisfied by the trial court’s general instructions on criminal intent. Finally, considering that the evidence showed that the defendants’ actions after the kidnapping were the sole cause of the victim’s injuries, it defies reason to believe that the jury could have concluded that the victim received his injuries by some other cause. This enumeration is without merit.

Decided October 23, 1995

Howe & Dettmering, Donald B. Howe, Jr., for appellant.

David McDade, District Attorney, for appellee.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.


author: Andrews, Judge.

text:
    A95A1478.
    WILLIAMS v. THE STATE.
    (463 SE2d 372)
   Andrews, Judge.

Williams appeals from the trial court’s denial of his motion for new trial after a jury found him guilty of rape and aggravated assault. We affirm the judgment of the trial court.

The rape occurred on November 14, 1988, and on May 10, 1989, Williams was indicted for rape, kidnapping, and possession of cocaine. The trial was scheduled for August 29, 1989, but Williams, who was out on bond, did not appear. Williams was brought back to court in August 1992, and the grand jury reindicted him for rape, kidnapping with bodily injury, aggravated assault, and possession of cocaine. The trial court severed the possession charge and tried Williams on the other three charges in March 1993.

Viewed in the light most favorable to the jury’s verdict, the evidence at trial was as follows. Williams and the victim, Ms. McKine, knew each other and had lived together for a period of time until a few months before the rape occurred. McKine testified that after she broke off their relationship, Williams waited for her to leave work one evening and threatened her and forced her into his car. McKine jumped out of the car while it was still moving in order to escape.

On November 14, 1988, Williams waited outside the bank in Garden City where McKine worked and, when she came out of the building, grabbed her and shoved her into the car. Williams drove McKine to a motel, hitting her when she attempted to escape or call for help. At the motel, Williams forced McKine to undress at knifepoint and raped her.

Williams testified in his own behalf at his trial. He admitted having sexual intercourse with McKine at the motel; however, he claimed it was consensual. He testified that he did not strike her until afterward when they were arguing. The jury found Williams guilty of rape and aggravated assault and acquitted him on the count of kidnapping with bodily injury. The aggravated assault charge merged with the rape count, and the trial judge sentenced Williams to ten years to serve seven on the rape conviction.

1. In his first enumeration of error, Williams claims he is entitled to a new trial because the court denied defense counsel’s motion to strike the jury panel after Williams’ character was placed in issue. During voir dire, the clerk read to the jury the charges against Williams and included the severed charge, possession of cocaine, in this reading. Defense counsel moved to strike the panel, and the court denied his motion. The State requested curative instructions, but defense counsel did not wish to draw the jury’s attention to the severed charge, so the curative instructions were not given. Instead, the clerk re-read the charges to be tried, omitting the charge of possession. Williams claims that the trial court should have either granted a mistrial or, despite the wishes of defense counsel, given curative instructions.

When a defendant’s character has been impermissibly placed in issue in this manner, the decision to give curative instructions rather than to grant a mistrial lies within the sound discretion of the trial court. Hubbard v. State, 210 Ga. App. 141, 145 (435 SE2d 709) (1993). Here, the State requested curative instructions be given, but defense counsel decided this would serve only to call attention to the cocaine charge. Accordingly, the court had the charge re-read, omitting the possession charge. In Hubbard, we affirmed the trial court’s denial of a mistrial under similar circumstances. The trial court, without directly referring to the severed charge, re-read the charges to the jury and instructed them that “ ‘these will be the sole and only charges with which you will be concerned in this case.’ ” Hubbard, supra at 145. Here, the trial court did the same thing except that it omitted the last sentence. Since it was at the request of defense counsel that no curative instructions be given, Williams cannot now be heard to complain of this on appeal. “One cannot complain of a result he induced, procured or aided in causing.” (Citations omitted.) Hood v. State, 216 Ga. App. 106, 108 (453 SE2d 128) (1995).

2. Next, Williams claims that the trial court erred in allowing testimony as to his previous violent encounter with McKine. Trial counsel did not object to this testimony at trial and did not raise the issue that a Rule 31.3 (B) hearing on the prosecution’s intent to present this evidence was not held. The Supreme Court of Georgia has held that compliance with Uniform Superior Court Rules 31.1 and 31.3 for all prior acts involving the victim and the accused, as well as those involving the accused and not the victim, is mandatory. Barrett v. State, 263 Ga. 533, 535 (436 SE2d 480) (1993); Maxwell v. State, 262 Ga. 73, 75 (414 SE2d 470) (1992). Therefore, even though counsel did not object at trial, the issue is not waived on appeal since this ground was raised at the hearing on the motion for new trial. See White v. State, 213 Ga. App. 429, 430 (445 SE2d 309) (1994) (burden to conduct requisite hearing under Rule 31.3 (B) is on State and trial court, and failure to object at trial does not waive issue on appeal as long as it was raised before trial court at hearing on motion for new trial and was enumerated and argued as error on appeal). While the failure to conduct an admissibility hearing under Rule 31.3 (B) has been held to be grounds for a new trial where the evidence of guilt was not overwhelming, see Riddle v. State, 208 Ga. App. 8, 11 (430 SE2d 153) (1993), the Georgia Supreme Court has stated recently that failure to hold the hearing, even without overwhelming evidence of guilt, does not necessarily require a new trial. Stewart v. State, 263 Ga. 843, 845 (440 SE2d 452) (1994). Instead, the case may be remanded to the trial court to conduct a post-trial hearing on the admissibility of the evidence. Stewart, supra; White, supra.

Here, the trial court, after the hearing on the motion for new trial, made a determination as to admissibility under the standards enunciated in Maxwell, supra. After reviewing the record, the trial court found that the evidence of previous difficulties between the victim and defendant was admissible.

Maxwell requires that, for each prior difficulty or quarrel the State seeks to introduce, it must make the three affirmative showings outlined in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). Maxwell, supra at 75. These require a showing that: (1) evidence is introduced for some appropriate purpose which is an exception to the general rule of inadmissibility; (2) there is sufficient evidence that the accused committed the act in question; and (3) there is sufficient similarity between the independent act and the crime charged such that proof of the former tends to prove the latter. Williams, supra at 642.

The trial court found that requirement number one was satisfied by testimony at the hearing on the motion for new trial that the evidence was introduced to show the on-going physical violence problem between Williams and the victim. In reviewing the trial transcript, the court found that the second requirement was satisfied by testimony at trial from McKine and two security officers who testified about the incident. Finally, there is a marked similarity between the prior occurrence and the offense charged at trial, and it is probative of Williams’ use of violence in the relationship.

In light of the above, we agree with the trial court’s finding that the evidence of previous difficulties between McKine and the accused was admissible under the standards set forth by Maxwell. Accordingly, this enumeration of error is without merit.

3. Williams claims that he received ineffective assistance of counsel in that trial counsel failed to request curative instructions regarding the reading of the severed charge of possession to the jury. The trial court found that defense counsel’s decision not to emphasize the mistake by additional comment from the court was a trial tactic and did not show ineffective assistance of counsel. We agree with this determination.

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. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). Here, Williams must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 69 (8) (410 SE2d 173) (1991). “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. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross, supra.

Here, we do not need to go beyond the first prong of the Strickland test because we find that counsel’s performance was not deficient. Trial counsel testified at the hearing on the motion for new trial that he made a deliberate, tactical decision not to draw the jury’s attention to the charge on possession. “Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Punctuation omitted.) Powell v. State, 198 Ga. App. 509, 511 (402 SE2d 108) (1991). Accordingly, the trial court did not err in denying Williams’ motion for new trial based on ineffective assistance of counsel.

4. In his fourth enumeration of error, Williams raises the general ground of sufficiency of the evidence. “On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Decided October 23, 1995.

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Christine M. Sieger, Assistant District Attorney, for appellee.

McKine testified that Williams waited for her when she came out of work, forced her into the car, and drove her to the motel. It was dark when they arrived at the motel, and he took her straight to the room. She did not scream or try to get away because he was much bigger than she, and she was afraid of him. She also testified that Williams threatened her with a knife prior to raping her. After Williams released her, she immediately drove straight to the police department. The photographs of McKine taken immediately after the rape show that she was beaten. The doctor who examined her in the emergency room testified that she had bruises and scratches on her face and a puncture wound on her upper lip. He further testified that she was quite upset, “tearful and crying.” In addition, a forensic serologist from the GBI testified that he found blood stains on the shirt and jeans worn by McKine on the night of the attack. Further, Williams admitted to hitting McKine twice, although he claimed that the sexual intercourse was consensual.

For the reasons outlined above, we conclude that there was sufficient evidence from which a rational trier of fact could find Williams guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

       The trial court noted in its order on the motion for new trial that it was not necessary to have yet another hearing because the same evidence and testimony would be elicited.


author: Beasley, Chief Judge.

text:
    A95A1553.
    FINLEY et al. v. LEHMAN et al.
    (463 SE2d 709)
   Beasley, Chief Judge.

The surviving spouse of Finley brought this wrongful death action against the City of Cairo, Lehman, Hughes, and others. She dismissed the action against the city without prejudice and appeals the grant of summary judgment to Lehman and Hughes.

Lehman, along with a partner, purchased 11 lots in a residential subdivision in the city. He purchased the lots while the subdivision was being developed and agreed to undertake various improvements which the developer, Rudd, had been unable to complete on a timely basis. Among other things, he agreed to install sewer and water lines so as to meet minimum requirements of the city for the construction of housing on 43 lots in the subdivision. Lehman hired Quality Home Builders, Inc., to construct the sewer and water lines.

Finley was employed by Quality Home Builders and was engaged in the installation of one of the sewer lines. He was working inside a ditch, located on a subdivision lot not owned by Lehman, which had been dug for placement of the line. The ditch caved in, evidently because of inadequate shoring. The cave-in covered Finley with several feet of dirt, resulting in his death from suffocation. Quality Home Builders paid workers’ compensation benefits to plaintiff as decedent’s dependent spouse.

Defendant Hughes is an engineer employed by the City of Cairo’s utility department as wastewater superintendent. He was present at the job site on the day the ditch caved in and on previous occasions. He was there as a courtesy to the developer, in order to ensure that the sewer line was being constructed in accordance with requirements imposed by the city, with respect to whether the sewer line was being laid on a proper grade for adequate flow and whether the pipe in the line was being prepared and assembled properly. This is done to avoid the necessity for corrections after the ditches are covered.

Hughes testified that he made no inspections at the site which in any fashion pertained to whether the ditch was safely shored, although he did observe that it was not being shored and that only part of it was being shelved. Plaintiff presented evidence that the ditch excavation was in violation of OSHA standards, which would constitute a violation of a city requirement that all sewer construction be performed according to such standards. There is no evidence showing how this requirement is enforced.

1. Plaintiff’s theory of liability in support of her claim against Hughes is based on the Restatement (2d) of Torts, § 324 A, part of the Good Samaritan Doctrine: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” See Adler’s Package Shop v. Parker, 190 Ga. App. 68, 71 (1) (b) (378 SE2d 323) (1989).

None of these circumstances was present. Plaintiff’s reliance upon the Restatement is unavailing. Hughes testified without contradiction that he did not undertake any safety inspections of the ditch, i.e., that he did not render any services to decedent’s employer which he should have recognized as necessary for the protection of Finley. It is true that there is evidence that Finley’s employer was negligent by reason of its shoring of the ditch in violation of OSHA standards. Cardin v. Telfair Acres of Lowndes County, 195 Ga. App. 449, 450 (2) (393 SE2d 731) (1990). Nonetheless, Section 324 A of the Restatement provides no basis for holding Hughes liable for such negligence, based on the claim that a safety inspection of the ditch was a service he should have rendered to decedent’s employer because the city required the ditch to be shored in accordance with OSHA standards. Section 324 A imposes liability only where a party has in fact undertaken to render services. Johnston v. United States, 461 FSupp. 991, 993 (5) (N. D. Fla. 1978). It does not impose liability based upon the failure to render services which should have been undertaken.

Moreover, plaintiff seeks to hold Hughes liable for breach of duty arising from his alleged failure to exercise reasonable care in his inspection of the ditch. A private citizen does not have a cause of action for breach of such a duty by a governmental employee in the absence of a special relationship between the citizen and the governmental unit. See Landis v. Rockdale County, 212 Ga. App. 700 (445 SE2d 264) (1994); City of Lawrenceville v. Macko, 211 Ga. App. 312, 314 (2) (439 SE2d 95) (1993); compare Foster v. Crowder, 117 Ga. App. 568, 569 (2) (161 SE2d 364) (1968). Such a relationship requires, among other things, an explicit assurance by the governmental unit, through promises or action, that it would act on behalf of the injured party. City of Rome v. Jordan, 263 Ga. 26, 29 (2) (426 SE2d 861) (1993). There is no such evidence here.

2. Plaintiff also contends that owner/developer Lehman was not entitled to summary judgment. She acknowledges that Lehman entered into an agreement with Rudd whereby Lehman was to install the sewer lines for the lots in the subdivision and that Lehman, in turn, hired decedent’s employer as the subcontractor to perform the work. Lehman is entitled to tort immunity as the decedent’s statutory employer. See Intl. Leadburning Co. v. Forrister, 213 Ga. App. 558 (445 SE2d 546) (1994).

Thus, plaintiff cannot hold Lehman liable for the negligence of decedent’s employer under OCGA § 51-2-5, which sets forth the exceptions to the general rule of nonliability of an employer for the torts of an independent contractor. Compare Horn v. C. L. Osborn Contracting Co., 591 F2d 318 (5th Cir. 1979) (in which the statutory employer defense was not in issue).

Since Lehman has tort immunity, he is not liable for negligence in hiring decedent’s employer. In addition, the theory of negligent hiring does not apply because the uncontroverted evidence shows that decedent’s employer was an independent contractor and not an employee of Lehman. Mason v. Gracey, 189 Ga. App. 150, 154 (1) (c) (375 SE2d 283) (1988); see also Horney v. Panter, 204 Ga. App. 474, 475 (2) (420 SE2d 8) (1992).

Judgments affirmed.

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

Decided October 23, 1995.

Robert M. Beauchamp, for appellants.

Wilkin, Raulerson & Fields, E. B. Wilkin, Jr., Alexander & Vann, William C. Sanders, for appellees.


text:
    A95A1789.
    TINKER v. THE STATE.
    (463 SE2d 368)
   Andrews, Judge.

Tinker, convicted of two counts of violating the RICO Act, OCGA § 16-14-1 et seq., appeals, alleging that he was improperly forced to proceed to trial without counsel of his own choosing and that the court’s assigning him a “procedural adviser” caused errors. We affirm.

Tinker was indicted on January 27, 1994. Attorney Jones was appointed to represent Tinker, and he filed numerous motions on Tinker’s behalf on May 4, 1994. On June 24, 1994, although Jones was still his counsel of record, Tinker filed motions on his own behalf. Tinker was arraigned on this indictment on November 23, 1994, with Jones as his counsel. This case was placed on the trial calendar for December 5, 1994, but was not reached.

Tinker, who was incarcerated, filed pro se motions on December 27, 1994, and January 20, 1995. On February 10, 1995, Jones filed his motion to withdraw as counsel, accompanied by Tinker’s consent and request to withdraw. The Consent requested Jones’ removal because Tinker was “not pleased with his representation and will either represent myself or hire counsel to represent me in [this] case. I further understand that I will not be allowed to have counsel appointed for me of my own choosing. I understand and agree that this case is on the February Trial Calendar beginning Monday, February 13, 1995 and that I will be responsible for preparing and being ready for trial.”

On February 13, 1995, the State called Tinker’s case and Tinker was sworn and asked about his efforts to employ counsel. The State also informed the court and Tinker that the State would specially set the case for trial during the week of March 20. Tinker informed the court that he had not yet employed counsel. Asked if he intended to employ counsel or represent himself, Tinker stated “I’m looking in to something right now. Court: What are you looking in to, ... . Tinker: Hiring a lawyer. Court: Who? Tinker: I’m not sure of the name right now. He’s from Atlanta, I’m not sure.....I’m just, you know, trying to interview a couple of people to see who I want to represent me. Court: Well, you be aware of this now. When the day comes for it to go to trial if you don’t have a lawyer you’re going to represent yourself. The rule is, the Court appointed you a lawyer and the Court appointed you . . . you had one of the most experienced lawyers, . . . , and you chose to discharge him. The Court is not inclined to appoint you another lawyer, so hire yourself one or be prepared to represent yourself at trial. We’re going to go on with it at all deliberate speed.”

On March 20, 1995, Tinker’s case was called for trial, and the State announced ready. The court had directed attorney Willis to sit with Tinker during the trial as a “procedural adviser.” The court inquired as to Tinker’s readiness for trial, and Tinker asked for a continuance, stating that “[m]y family and friends here in Atlanta have found me a lawyer that’s wanting to take this case, and as far as I remember you said that if I found a lawyer or if I didn’t by today that, you know, I’d have to represent myself, but I found a lawyer and now I’d like for him to have enough time to represent me in the case, but he’ll need time to do his work. Court: Show me a receipt where you’ve paid him. Tinker: Well, see, I don’t have any of that. I can’t prove that I have because I have somebody else on the outside doing this stuff for me, you know, I’m in the jail here.”

The State informed the court that Harvey, the lawyer in question, now appellate counsel, had informed the State two weeks previously that he had not been retained, and the record here reflects that Harvey had made no entry of appearance on Tinker’s behalf.

The court reminded Tinker that, when Tinker had asked for Jones’ withdrawal, “I informed you at the time that you needed to give very serious consideration before you asked me to dismiss your lawyer because I would do so, but that if I did so I wouldn’t give you another free lawyer, you’d have to represent yourself or hire one, and . . . you told the Court, . . . back in February, that you had a lawyer ready to be hired. Now, we’re talking about March the 20th.”

Tinker then advised the court that he had spoken to Harvey by phone on Friday and “I have counseled with him, but I’m not sure of a retainment plan, what they have worked out. . . .”

The court then denied Tinker’s motion for continuance. The record reflects that Harvey was retained by Tinker on April 18, 1995, nearly a month after the trial was over.

1. Tinker’s first enumeration is that the court erred in “refusing to grant a continuance where the defendant, who has been deemed indigent, but desires to hire counsel, is allowed to dismiss his court appointed counsel without a hearing to determine his ability to retain private counsel, denies any desire to represent himself and diligently pursues representation from the point his court appointed counsel is dismissed until trial the following month, but is unable to retain counsel.”

(a) “When, as here, (an) appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration. [Cits.]” Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995).

We will address only the issue of the denial of a continuance. Even if properly enumerated, we need not address the contentions concerning the lack of a hearing on Tinker’s ability to retain private counsel, since that issue has been mooted by his having done so for this appeal.

(b) “The grant or denial of a continuance, including on grounds of absence of counsel, is within the discretion of the trial court and will not be disturbed unless it clearly appears the trial court abused that discretion. Pope v. State, 256 Ga. 195, [205-]207 [(12)] (345 SE2d 831) [1986]; [cits.]. . . . Denial of continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears he is using the tactic for delay. [Cit.]” Stephens v. State, 208 Ga. App. 620 (1) (431 SE2d 422) (1993).

In such a situation, the burden of convincing the court that due diligence has been exercised is that of the movant, Tinker. OCGA § 17-8-20; Patterson v. State, 202 Ga. App. 440 (1) (414 SE2d 895) (1992). Here, the only showing made was Tinker’s statement that he had spoken to the attorney, apparently on the Friday before trial was to begin on Monday, but had not yet retained him.

Whether a defendant has exercised due diligence in hiring counsel is a factual question, and the trial court’s grant or denial of a continuance on this basis will not be disturbed absent an abuse of discretion, which has not been shown here. Wood v. State, 199 Ga. App. 252, 253 (1) (404 SE2d 589) (1991); see Chambers v. State, 213 Ga. App. 414, 417 (4) (444 SE2d 820) (1994); Vincent v. State, 210 Ga. App. 6, 8 (3) (435 SE2d 222) (1993).

This case is similar to Adams v. State, 210 Ga. App. 151 (435 SE2d 514) (1993). There, the court appointed counsel for Adams, based on his indigence. After a jury was selected, Adams decided he no longer wanted appointed counsel but wanted to retain counsel, contending that his father could hire one for him. There was, however, no showing made that his father would or could in fact hire an attorney. This Court found no abuse of discretion in the trial court’s refusal to allow Adams to delay the trial in order to seek counsel of his own choosing. See Vincent, supra; compare Hasty v. State, 215 Ga. App. 155 (450 SE2d 278) (1994).

Here, Tinker was allowed to discharge his appointed counsel, with full knowledge that he would be responsible for obtaining counsel or representing himself. There is no indication in the record or transcript that Tinker did not understand his options, only that he failed to timely exercise the option of retaining counsel.

(c) The argument that there was an inadequate showing of Tinker’s knowing and intelligent waiver of his right to counsel is also meritless.

“A defendant’s voluntary election of the alternative right of self-representation is not, however, the only circumstances in which the waiver of the right to counsel may arise. Notwithstanding a defendant’s present verbal insistence upon his right not to be tried without counsel, his own past actions may nevertheless demonstrate that the right has been waived. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. [Cits.]” Smith v. State, 194 Ga. App. 810 (392 SE2d 288) (1990); Williams v. State, 169 Ga. App. 812, 815 (315 SE2d 42) (1984).

Here, the record reflects that the court repeatedly advised Tinker of the need to have his attorney of choice retained and ready to proceed on March 20. We find no abuse of discretion in the court’s denial of the motion for continuance.

2. Tinker’s second and third enumerations are subject to the same duplicity as the first. Division 1 (a), supra. Nonetheless, we will address what we deduce to be the contention in the second enumeration that Tinker suffered reversible harm because of the services rendered by the procedural adviser.

As acknowledged by appellate counsel, after Tinker had made his opening argument and cross-examined two witnesses, he voluntarily chose to remove himself from the courtroom and refused to further participate in his trial. As Tinker stated “I basically can’t go through with it, you know, watching, or emotionally handling this, you know, what I’m doing to myself.”

Out of an abundance of caution, after Tinker removed himself from the trial, the trial judge directed the procedural adviser to participate by cross-examining the next two witnesses. The adviser, however, was never appointed to represent Tinker. After the adviser expressed his discomfort with this direction, the court stated that this had “put [the adviser] in a position that he should not be in. It is not his duty to act as counsel for this defendant, ... so I am going to instruct the jury that from here on out [he] will be an observer.” The use of such a procedural adviser/observer is not error. Hose v. State, 161 Ga. App. 401 (288 SE2d 675) (1982); see McCook v. State, 178 Ga. App. 276, 277 (342 SE2d 757) (1986); Williams, supra at 815.

Having waived his right to be present for the remainder of his trial', Stell v. State, 210 Ga. App. 662, 663 (4) (436 SE2d 806) (1993); Miller v. State, 122 Ga. App. 869 (1) (179 SE2d 265) (1970), it is not apparent what harm could have been suffered by Tinker’s receiving the advantage of a procedural adviser’s participation in some cross-examination and, thereafter, observing the trial and telling Tinker what was occurring.

Decided October 23, 1995.

Bruce S. Harvey, Pete C. Whitlock, Jr., for appellant.

Alan A. Cook, District Attorney, for appellee.

The third enumeration is, in essence, that such a procedural adviser who does not vigorously represent his non-client is ineffective as a matter of law. Again, we note that it was Tinker who, by his actions, chose to represent himself and then chose to remove that representation from the trial. Any ineffectiveness in so doing was his own. There has been no showing of any harm to Tinker from the availability of the adviser, and these enumerations are without merit.

3. Finally, it is argued that reversible error was committed by the trial judge when he conducted the hearing on Tinker’s motion to suppress and Franks motion.*

Although a warrant, signed by the trial judge, was issued for the search of the home occupied by Tinker and Marr, this was done only after the search had been conducted pursuant to the consent of Marr, who signed a consent form and did not attack the voluntariness of it in pretrial proceedings. Therefore, even if an appropriate objection had been made by Tinker to the trial judge’s ruling on the Franks motion and the motion to suppress, which was not done, there has been no harm demonstrated by Tinker by any such error. Additionally, Tinker made no showing of any falsity in the affidavit, much less evidence of that deliberate falsity or reckless disregard for the truth which is a prerequisite to the need for a Franks hearing. Williams v. State, 251 Ga. 749, 796 (312 SE2d 40) (1983).

Judgment affirmed.

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

       The two RICO counts were merged for purposes of sentencing.

       Based on Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), and alleging falsity in the affidavit supporting the application for the search warrant.

       Marr was indicted with Tinker and pled guilty. She testified against Tinker at his trial.


text:
    A95A1776.
    GRAHAM v. HOLMES.
    (463 SE2d 513)
   Beasley, Chief Judge.

The child who is the subject of this custody dispute was born to the parties, who were married in 1982, on May 1, 1985. They separated when he was seven months old, entered into a separation agreement, and divorced soon after the boy’s first birthday. Under the divorce decree, the father was awarded custody of the child, and the mother was granted the right to visit him for six hours each on Saturday and Sunday afternoons on alternate weekends.

In 1989, the mother sought to obtain custody of the child, but it was denied. At that time, she moved to Louisiana, but she made at least monthly trips to Georgia to visit him Thursday evening and all weekend. She remarried in 1990, and she and her new husband moved back to Atlanta in September 1990. In 1991, she began to visit the child on weekdays (Monday, Wednesday, and Friday from 3:00 to 6:00 p.m.), alternate weekends, and most legal holidays, and this continued for three and one-half years. She became actively involved in his life, such as by being his room mother in first, second, and third grades, being football team mother at school, accompanying him to school on the first day each year, and taking him on vacations, sometimes week-long, without her husband because he was not permitted. The mother was given custody for two or three weeks when the father remarried in June 1993.

Afterward, the mother’s access to the child was restricted. The father instructed school authorities not to allow her on the premises, and his new wife became the child’s room mother. In January 1994, the mother’s attorney wrote a letter to the father’s attorney expressing alarm because she had just been advised that her visitation with the child would be limited solely to that set forth in the parties’ separation agreement, and he suggested an alternate plan to amend the agreement.

That did not materialize, so the mother petitioned the court to change custody or modify it by enlarging her visitation rights. A court-ordered psychological evaluation of the child, the parents, and their spouses resulted in a recommendation that the court order either a joint legal custody arrangement or sole custody in the mother. Another psychologist, who had conducted an evaluation of the parties in the 1989 custody proceeding and who had treated the child for anxiety at the request of the father beginning in February 1994, recommended that one person have primary custody, “most properly (sic) the father since that is who[m] he has been with for most of his life, with other weekend visits with the mother and perhaps a contact on a Wednesday or so with the mother each week.” He expressly did not recommend joint custody or a change of custody.

After the hearing, the court entered an order pursuant to OCGA § 19-9-3, finding that there has been no substantial change in conditions materially affecting the welfare of the child, then age nine and one-half, so as to justify a change of custody. The father retained sole legal and physical custody, and the mother was awarded more extensive visitation rights than had been granted in the divorce decree but less extensive than what had become the practice before the father’s remarriage. The mother’s application for discretionary appeal was granted. OCGA § 5-6-35 (a) (2).

The evidence shows that the father, recognizing the importance of the mother’s involvement in the child’s life, agreed for her to exercise substantially greater visitation rights than those set forth in the parties’ divorce decree. This resulted in frequent contact between her and the child over a period of several years. Through this contact, she has demonstrated that she is as devoted to the child as is the father and is equally able to care for and nurture the child.

Despite the trial court’s finding, there indisputably has been a substantial change in conditions insofar as the mother’s relationship with the child is concerned, in that a stepmother has entered the child’s life. However agonizing that might be, there are no undisputed facts in this case in that regard that would make it an abuse of discretion for the trial court not to change custody to the mother on that account. It could be so, in some cases, as the undermining by a custodial parent’s new spouse of the existing natural relationship between the child and the non-custodial parent may constitute a change which adversely affects the child’s welfare, happiness, and best interests. It is evident from the record that the trial court took this significant change into account. Of course, vigilant care must be taken by the father and stepmother to assure that the mother’s relationship with her son not be subverted by the stepmother’s role in the boy’s life. It naturally tends to subvert the mother’s role, and steps should be taken in carrying out the court’s order to compensate for this.

It is also evident that the court considered the fact that greater visitation than decreed when the child was age one became the norm for a lengthy period of time, resulting in a closer bond than otherwise may have been the case. But this did not constitute so much a change of condition but rather the natural development of a healthy mother-son relationship. This, even with the introduction of a stepmother into the boy’s life, did not require a change of custody to the mother.

It is true that, “where . . . the trial court determines that both parents are fit and equally capable of caring for the child, the court must consider joint custody but is not required to enter such an order unless it specifically finds that to do so would be in the best interest of the child.” Baldwin v. Baldwin, 265 Ga. 465 (458 SE2d 126) (1995). (Emphasis in original.) This is an application of the state’s policy that “there shall be no prima-facie right to the custody of the child or children in the father or mother.” OCGA § 19-9-3 (a) (1). Here it is evident that the court considered and rejected it; the psychologist who conducted the court-ordered evaluation recommended it or sole custody in the mother, but the psychologist who had treated the child recommended against both. Moreover, the petitioner did not seek joint custody.

Decided October 4, 1995

Reconsideration denied October 24, 1995

Richardson & Chenggis, George G. Chenggis, for appellant.

Bivens, Hoffman & Fowler, L. Brown Bivens, for appellee.

We must conclude that the court did not abuse its discretion, nor fail to take into account relevant factors, in determining that custody should not be changed to the mother.

Neither do we find an abuse with respect to the amount of visitation awarded. It was increased from the original order to two weekends a month, a two-hour period each midweek, up to four weeks of summer vacation, a portion of his birthday, and certain holidays. The court was not compelled to institutionalize the visitation schedule which had been practiced for the three-plus years when the child was between ages five and eight, after the mother’s return to Georgia. Even if this were found to have constituted a material change of conditions, the best interests of the child did not require the visitation she sought as an alternative to custody. Even a lengthy voluntary departure from the court-ordered plan, favorable to one parent, does not ripen automatically into a change of condition which that parent has a right to institutionalize. It all depends on the best interest of the child. See Lightfoot v. Lightfoot, 210 Ga. App. 400, 403 (3) (436 SE2d 700) (1993).

Appellant cites no authorities in support of her positions in these regards.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A94A1920.
    SAVANNAH COLLEGE OF ART & DESIGN, INC. v. NULPH.
    (462 SE2d 812)
   Blackburn, Judge.

In Savannah College of Art &c. v. Nulph, 216 Ga. App. 48 (453 SE2d 80) (1994), we affirmed the trial court’s determination that the employer’s breach of the employment contract was substantive rather than procedural. The Supreme Court granted certiorari and reversed our decision in Savannah College of Art &c. v. Nulph, 265 Ga. 662 (460 SE2d 792) (1995). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Decided October 24, 1995.

Drew, Eckl & Farnham, Arthur H. Glaser, J. Robb Cruser, for appellant.

Jones, Boykin & Associates, Harold J. Cronk, for appellee.

Judgment reversed.

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


author: Birdsong, Presiding Judge.

text:
    A95A1381.
    GWINNETT COUNTY et al. v. KING.
    (463 SE2d 511)
   Birdsong, Presiding Judge.

After the grant of authority for an interlocutory appeal, Gwinnett County, Michael Barkhurst, the warden of the Gwinnett County Correctional Institute and Diversion Center, and Gary Gordijn, a classification officer at the correctional institute and diversion center, appeal the denial of their motions for summary judgment in King’s action under 42 USC § 1983 alleging improper confinement and various tort claims under state law.

After his conviction, King was sentenced to 12 months confinement, but the sentence allowed “upon service of 90 days work release, the remainder [of the sentence] may be served on probation.” The terms of the court order allowing King’s participation in the work release program stated that King’s participation in the program was voluntary and could be terminated by the court, King, or the supervisory committee of the program at any time. This order also provided that participants in the program who failed to comply with the rules and regulations of the program could be removed from the program, and that if a participant was removed from the program, no good time credit would be given for time spent in the program. Additionally, King signed the following acknowledgment: “7 understand that this program is a voluntary alternative to incarceration; that I will not receive earned time credit, and that any failure to work and return each day at the scheduled time, or failure to abide by any of the rules of the program will result in my immediate incarceration to serve the entire sentence and that my probation/suspension may be revoked.”

After 67 days in the work release program, King reported drunk, and following a disciplinary proceeding, his participation was terminated because his conduct violated the rules of the program. King was placed in the county correctional institute to serve his full sentence in accordance with the trial court’s order.

King’s action under 42 USC § 1983 alleges that he was unconstitutionally and illegally detained in the county correctional institute because he was denied credit for the time served in the work release program and that his participation was improperly terminated in the work release program because it was terminated without judicial intervention.

Barkhurst’s and Gordijn’s motions for summary judgment asserted that King’s action against them was barred by qualified immunity because their actions were performed in good faith and within the scope of their official duties, and the motions were supported by affidavits from the appellants attesting to those facts. Barkhurst also contended that he could not be liable under 42 USC § 1983 because he was not responsible for any of the allegations alleged. Gwinnett County’s motion for summary judgment asserted that as the doctrine of respondeat superior is not applicable to actions under § 1983 and no official policy of the county was responsible for King’s alleged unlawful confinement, the county could not be held liable. The trial court denied both motions. Held:

1. “Under 42 USC § 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. The statute creates no substantive rights; rather it provides a remedy for federal rights found elsewhere, and supports a cause of action which may be brought in state as well as federal court.” (Citations and punctuation omitted.) Bell v. City of Albany, 210 Ga. App. 371, 372 (436 SE2d 87). Thus, if under color of state law the defendants violated any right guaranteed to King by the Constitution or federal law, they could be liable under 42 USC § 1983.

2. Pretermitting whether the appellants’ actions in this case actually violated King’s rights by carrying out the court order and the agreement King signed, however, is whether the defense of qualified immunity is available. If it is, the appellants are protected from King’s claims. “Government officials performing discretionary functions are granted a qualified immunity shielding them from imposition of personal liability pursuant to 42 USC § 1983 insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Thus, the test is applied by considering the objective reasonableness of the official’s actions (irrespective of his subjective beliefs) in light of legal rules which were clearly established at the time the action was taken.” (Citation, punctuation, and footnotes omitted.) Id. at 374.

Therefore, given the terms of the sentence imposed, the supplemental order, and King’s agreement to participate in the program under terms that authorized no good-time credit for participation in the diversion program, we do not find that King’s right to have credit for good time served was clearly established. Accordingly, the defense of qualified immunity was available to these appellants, and the trial court erred by denying their motions. Moreover, the defense of official immunity under Logue v. Wright, 260 Ga. 206, 208 (392 SE2d 235) and Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) is available to these appellants to defeat any claim King might assert under state law.

Decided October 4, 1995

Reconsideration denied October 25, 1995

Boyce, Ekonomou & Atkinson, Richard A. Carothers, William M. Coolidge III, for appellants.

Peevy & Lancaster, Gregory W. Lancaster, Davis & Sissell, Kenneth M. Sissel, for appellee.

3. Under the law applicable to actions under 42 USC § 1983 against local governments, the doctrine of respondeat superior is not a basis for imposing liability. To impose liability, it must be shown that some policy of Gwinnett County was responsible for the violation of King’s federally protected rights. Tillman v. Mastin, 216 Ga. App. 3 (453 SE2d 85); Alford v. Osei-Kwasi, 203 Ga. App. 716, 721-722 (418 SE2d 79). See Monell v. Dept. of Social Svcs. of New York City, 436 U. S. 658, 691 (98 SC 2018, 56 LE2d 611). In this case, as King has identified no policy of Gwinnett County which was responsible for any of the alleged deprivations, he cannot prevail on his claim against the county. Holloway v. Rogers, 181 Ga. App. 11, 13 (351 SE2d 240). “ ‘Deputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge.’ ” Warren v. Walton, 231 Ga. 495, 499 (202 SE2d 405); Drost v. Robinson, 194 Ga. 703, 710 (22 SE2d 475). Therefore, even King’s contract claim against the county must fail.

4. In view of our disposition above, King’s other claims are without merit.

Accordingly, the trial court’s denial of the appellants’ motions for summary judgment must be reversed and the case remanded with direction to enter summary judgment for the appellants on all of King’s claims.

Judgment reversed and remanded with direction.

Johnson and Smith, JJ., concur.


author: Smith, Judge.

text:
    A95A1820.
    A95A1821.
    MARTIN v. FAIRBURN BANKING COMPANY. ELLIJAY LUMBER & WOOD PRESERVING COMPANY, INC. v. FAIRBURN BANKING COMPANY.
    (463 SE2d 507)
   Smith, Judge.

Fairburn Banking Company brought suit against James Martin and Ellijay Lumber & Wood Preserving Company, Inc., seeking damages stemming from the severance and sale of timber from land owned by Martin on which Fairburn held a security interest. The trial court granted Fairburn’s motion for summary judgment, and the defendants filed separate appeals from the trial court’s order. We consolidated those appeals for review in this opinion. We now affirm.

The record reveals that Martin borrowed money from Fairburn to purchase the land in issue, executing promissory notes and a security deed in favor of Fairburn. The note was satisfied periodically by renewal notes. Thereafter, Martin entered into a contract with Ellijay Lumber to remove timber from the land in issue for commercial sale. Approximately four years after the timber was removed and sold, Fairburn brought this action against Martin and Ellijay Lumber, alleging it had been damaged by the removal of the timber and had not given its written consent to the cutting, as required by OCGA § 51-12-51 (a).

OCGA § 51-12-51 (a) provides in pertinent part that “[e]very person, firm, or corporation who, without the written consent of the person holding legal title to land or to an interest in land as security for debt, as shown by the public records of the county where such land is located, buys, sells, cuts, removes, holds, disposes of, changes the form of, or otherwise converts to the use of himself, itself, or another any trees growing or grown on such land shall be liable to the holder of the legal title for such trees, in any form, bought, sold, cut, removed, held, disposed of, changed in form, or otherwise converted by him or it, or for the value of such trees.”

1. Martin contends the trial court erred in granting Fairburn’s motion for summary judgment. He first maintains that permission was granted verbally by Fairburn’s former CEO, Daniel Longino, thereby estopping the bank from denying that it gave consent. The trial court found oral permission was legally insufficient, given the plain language of the statute.

When interpreting a statute, all its words must be given due weight; we are forbidden to “read out” any words in the statute unless a clear reason appears for doing so. See Porter v. Food Giant, 198 Ga. App. 736, 738 (402 SE2d 766) (1991); Dohn v. Lovell, 187 Ga. App. 523, 525 (370 SE2d 789) (1988). Further, if a statute is plain and unambiguous, its words (except for terms of art or those with a particular meaning in connection with a specific trade or subject matter) must be assigned their common and ordinary meaning. OCGA § 1-3-1 (b); Sledge v. Employees’ Retirement System, 196 Ga. App. 597, 598 (396 SE2d 550) (1990). OCGA § 51-12-51 (a) clearly and unambiguously requires written consent. We therefore must agree with the trial court that verbal consent is inadequate to satisfy the statute.

2. Martin also asserts that he and Longino indicated their understanding that timber would be cut and sold by noting on the original note that the purpose of the loan was to “purchase land for resale.” He contends the trial court erred in excluding parol evidence to “explain” this notation, because it constituted “written consent” within the meaning of OCGA § 51-12-51 (a).

The trial court did not err. Parol evidence was inadmissible to contradict or vary the terms of the written documents. OCGA §§ 13-2-2 (1); 24-6-1. Any alleged oral “understanding” between Martin and Longino at the time the note was signed that was not expressed in the terms of the note is now irrelevant. See Leventhal v. Seiter, 208 Ga. App. 158, 162 (4) (430 SE2d 378) (1993). The note clearly and simply recites that the purpose of the loan was to purchase the land for resale. It is not necessary to cut timber in order to resell land, and any alleged “understanding” to the contrary is in conflict with the written words. The trial court did not err in excluding this parol evidence.

3. Martin’s final contention is that because the last renewal of the note was executed after the timber had been cut, the bank did not have a valid security interest in the note. We do not agree.

Martin argues there is at least a question of fact whether the renewal notes constituted an accord and satisfaction. In addition to satisfying Martin’s original note and its renewals, the renewal note sued upon also served to consolidate other loans and was secured by additional collateral. He asserts that the bank had a duty, therefore, to inspect the property prior to executing the new security deed accompanying the renewal note, and it may not now sue for relief from its lack of diligence.

Martin fails to note, however, that the original security deed contained a clause providing that it was “intended ... to secure any renewal or renewals of said loan whether in whole or in part.” It also contained a “dragnet” or open-end clause, securing “any and all other indebtedness which said grantor may now or may hereafter owe said grantee.” “Georgia law is clear that deeds to secure debt containing open-end clauses continue to be effective so long as there exists indebtedness between the grantor and the grantee. ... It is also clear that the dragnet provision is a recognized exception to the general rule expressed in the statutes [such as OCGA §§ 44-14-3 (b), 44-14-60, 44-14-67] regarding instantaneous extinction of the deed and reconveyance to the grantor [upon satisfaction of a debt].” (Citations and punctuation omitted.) Tedesco v. CDC Federal Credit Union, 167 Ga. App. 337, 339 (2) (306 SE2d 397) (1983). Accordingly, because debt continued to exist between Martin and Fairburn, the original security deed remained effective.

Decided October 3, 1995

Reconsideration denied October 25, 1995

Peevy & Lancaster, Donn M. Peevy, for appellant (case no. A95A1820).

Robert M. Ray, Jr., Wayne A. Coe, for appellant (case no. A95A1821).

Thompson, O’Brien, Kemp & Nasuti, J. Patrick O’Brien, Donna N. Kemp, Robert C. Buck, for appellee.

4. Ellijay Lumber contends the trial court erred in failing to consider the affidavit of Garland Thomas in ruling on the motion for summary judgment. The affidavit was filed at the same time Ellijay Lumber filed its response to Fairburn’s motion for summary judgment. Fairburn objected to the response as untimely. Fairburn did not object, however, to the affidavit, which as Ellijay Lumber correctly notes, was properly filed prior to the day of the hearing. OCGA § 9-11-56 (c).

In its order, the trial court correctly found that Ellijay Lumber’s response to Fairburn’s motion was untimely. Nothing in the record indicates the trial court failed to consider the affidavit. The order recites, in fact, that the trial court considered “the . . . affidavits . . . and the entire record.” The record thus fails to support Ellijay Lumber’s contention that the trial court excluded the affidavit. We cannot consider facts related in briefs that are unsupported by the record. Garrison v. Dept. of Human Resources, 184 Ga. App. 449 (1) (361 SE2d 860) (1987).

5. We have reviewed Ellijay Lumber’s remaining contentions and find them meritless.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       Ellijay Lumber’s brief fails in several ways to comply with the rules of this Court. Among other deficiencies, no record citations are provided as required by Rule 27 (c) (3) (i); the argument is not presented following the sequence of the enumerations of error, as required by Rule 27 (c) (1); and no standard of review with citation of authority is included. Rule 27 (a) (3). We have carefully considered Ellijay Lumber’s arguments. It should be noted in general, however, that the rules are intended to facilitate careful consideration of litigants’ contentions, and failure to conform briefs to the rules makes it more difficult for the court to give these contentions the serious consideration they deserve.


text:
    A95A1373.
    WILSON v. MILES.
    (463 SE2d 381)
   Andrews, Judge.

We granted Wilson’s application to appeal from the superior court’s affirmance of the Department of Public Safety’s declaration of him as an habitual offender. The issue to be determined is whether the legislature’s 1985, 1987, and 1990 amendments of OCGA § 40-5-58 (a) imposed a requirement that three separate and unrelated transactions are required to supply the three “arrests and convictions” needed for an habitual violator declaration under OCGA § 40-5-58 (a). We find that three separate and unrelated transactions are required.

Wilson was arrested for DUI on May 29, 1993, and then arrested for DUI and attempting to elude a police officer on September 10, 1993. The Department, affirmed by the superior court, found the charges arising from these two arrests to be the requisite three arrests and convictions.

OCGA § 40-5-58 (a) currently states that “[a]s used in this Code section, ‘habitual violator’ means any person who has been arrested and convicted within the United States three or more times within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the most recent arrest for which a conviction was obtained, of: (1) [committing any offense covered under Code Section 40-5-54 or Code Sections 40-6-391 through 40-6-395 [or comparable federal, other state, or local laws]; or (2) [singularly or in combination, any of the offenses described in paragraph (1) of this subsection.” (Emphasis supplied.)

Prior to the amendments of 1985, 1987, and 1990, former Ga. Code Ann. § 68B-308 (b) (1), now OCGA § 40-5-58 (a), defined an habitual violator as one who had been “convicted three or more times” within the requisite period. (Emphasis supplied.) In Hardison v. Hall, 162 Ga. App. 342 (291 SE2d 416) (1982), this Court determined that the statute “does not require that the ‘three or more convictions’ of the offenses enumerated therein arise out of ‘separate and unrelated incidents.’ Had the legislature intended otherwise, it could have inserted a qualifying phrase similar to the one utilized in former Code Ann. § 92A-457 (9) [which provided that, for declaring one an habitual violator for 15 or more moving minor traffic offenses, said offenses had to ‘have been committed during separate and unrelated incidents. . . .’ (Emphasis supplied.)] Indeed, not only did the General Assembly fail to add the qualifying phrase when enacting present Code Ann. § 68B-308 (b) (1) [OCGA § 40-5-58 (a)], it specifically omitted that phrase when it enacted present Code Ann. § 68B-308 (b) (2), [former OCGA § 40-5-58 (b), repealed by Ga. Laws 1987, pp. 1082-1089, dealing with 15 minor moving traffic offenses], corresponding to former Code Ann. § 92A-457 (9) in which the phrase appeared. Accordingly, we conclude that the legislature did not intend that the requisite number of convictions under Code Ann. § 68B-308 (b) (1) arise out of separate and unrelated incidents. Moreover, this construction of the statute effectuates the avowed purpose of the statute, which is not to define and punish ‘recidivists’ but to protect the citizens of this State from ‘dangerous, negligent, and incompetent drivers.’ ” Hardison v. Hall, supra at 344.

In Hardison v. Boyd, 174 Ga. App. 71 (329 SE2d 198) (1985), this Court considered the issue of whether, under the three “convictions” language, the date of conviction or the date of violation should be used in determining the habitual violator status and determined that the date of the offense is the date to be used for this purpose. This opinion was issued on March 5, 1985.

House Bill 90, which contained the 1985 amendments to Title 40, including the added “arrest” language, was pending before the General Assembly during the time the Boyd case was being considered by this Court, appearing in the Journals of the chambers on February 5, 20, and 27. The bill was approved on April 3, 1985. Ga. Laws 1985, pp. 758, 782. The caption of the bill, as passed, stated that its purpose, in pertinent part, was “to provide for and specify the time period within which previous offenses shall be considered for determining criminal punishment and administrative sanctions for violations of certain serious traffic offenses.”

In 1987, when the General Assembly again amended OCGA § 40-5-58 (a), the caption stated that its purpose was, in pertinent part, “to change the definition of a habitual violator.” Ga. Laws 1987, p. 1082. OCGA § 40-5-58 (a) was stricken in its entirety and the following inserted: “(a) As used in this Code section, ‘habitual violator’ means any person who has been arrested and convicted . . . three or more times within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the most recent arrest for which a conviction was obtained, of: (1) [offenses listed in footnote 1]; (2) Operating a vehicle after cancellation, suspension, or revocation of his operator’s license under Code Section 40-5-121 or any law of this state . . . ; or (3) Singularly or in combination, any of the offenses described in paragraph (1) or (2) of this subsection, both inclusive.” (Emphasis supplied.) Ga. Laws 1987, pp. 1082, 1086.

Prior to this 1987 amendment, the emphasized language had been part of former Ga. Code Ann. § 68B-308 (b) (2), which became OCGA § 40-5-58 (b) and dealt with 15 minor moving traffic offenses. With the exception of this emphasized language which was appended to OCGA § 40-5-58 (a), the remainder of former section 68B-308 (b) (2) was repealed by the 1987 amendment.

In 1990, the General Assembly again amended Title 40 and other provisions dealing with driving. Ga. Laws 1990, pp. 2048-2336. The caption stated the General Assembly’s purpose was “to particularly change provisions relative to issuance, suspension, revocation, and reinstatement of drivers’ licenses; to provide for definitions. ...” Ga. Laws 1990, p. 2048.

Chapter 5 of Title 40 was stricken in its entirety and replaced. OCGA § 40-5-58 (a), as amended, defined “habitual violator” as one “arrested and convicted . . . three or more times within a five-year period ... of: (a) [offenses listed in footnote 1]; (2) [sjingularly or in combination, any of the offenses described in paragraph (1) of this subsection.” (Emphasis supplied.)

1. In interpreting statutes, “the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). “ ‘To ascertain the intention of the legislature, after examining the words of the Act itself, it is necessary to take into view every fact and circumstance that influenced its passage. We must consider what the law was before; the mischiefs against which the law did not provide; the nature of the remedy proposed; the true reason of the remedy.’ ” McGuire v. McGuire, 228 Ga. 782, 785 (187 SE2d 859) (1972); City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991).

2. “ ‘(I)t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts.’ [Cits.]” Wigley v. Hambrick, 193 Ga. App. 903, 904-905 (4) (389 SE2d 763) (1989).

3. The Georgia Constitution prohibits the passage of a bill which refers to more than one subject matter or contains matter different from that expressed in the title of the bill. Ga. Const., Art. III, Sec. V, Par. III; Lutz v. Foran, 262 Ga. 819, 820 (3) (427 SE2d 248) (1993).

In construing legislation, “nothing ... is more pertinent, towards ascertaining the true intention of the legislative mind in the passage of the enactment, than the legislature’s own interpretation of the scope and purpose of the act, as contained in the caption. The caption of an act of the legislature is properly an index to the contents of the statute as construed by the legislature itself, — a summarizing of the act, made right at the time when the discussion of every phase of the question is fresh in the legislative mind.” Wimberly v. Ga. Southern &c. R. Co., 5 Ga. App. 263, 265 (2) (63 SE 29) (1908); Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130, 131 (105 SE 629) (1921).

4. Applying these precepts to the evolution of OCGA § 40-5-58 (a), we conclude that the legislature’s purpose in 1985 was to eliminate any confusion as to the method of measurement of the time between violations for purpose of the habitual violator designation. This legislative concern is evidenced by the pendency of Hardison v. Boyd, supra, during the period of the 1985 legislative session as well as the caption of the bill enacted which identified the “time period within which previous offenses shall be considered” as the primary concern.

We cannot, as the Department would have us do, interpret the 1985 amendment as evidencing the legislature’s intent that each charge arising from an arrest can be considered for purposes of habitual violator status. To so interpret the act would mean that an individual driving under the influence who hits and kills another with his vehicle and then flees the scene would, on these three charges alone, be considered an habitual violator. If this is the desire of the legislature, additional amendment of the statute is required. See Bowman v. Griffith, 204 Ga. App. 851 (420 SE2d 795) (1992).

The primary indicia of the legislature’s intent, however, is supplied by the 1987 and 1990 amendments. By adding the phrase “singularly or in combination” as subsection (3) of OCGA § 40-5-58 (a) in 1987, the legislature evidenced its intent that “arrested and convicted” within the five-year period mean that the charges “singularly or in combination” must result from three separate incidents, regardless of the number of enumerated offenses charged during any singular incident. This is consistent with the caption to the 1987 amendment, indicating the legislature’s intent to “change the definition of a habitual violator.”

The 1990 amendment, captioned as a change in the provisions regarding revocation, deleted the subsection making an arrest and conviction for operating a vehicle after cancellation, suspension or revocation of a license a basis for an arrest and conviction under the habitual violator section. In 1990, the legislature left intact the “singularly or in combination” language.

Therefore, we must conclude that three separate and unrelated transactions are required for designation as an habitual violator.

Judgment reversed.

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

Decided October 25, 1995.

Hudson & Montgomery, David R. Montgomery, for appellant.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Lori V. Winkleman, Assistant Attorney General, for appellee.

       Homicide, feticide, or serious injury by vehicle; a felony involving the use of a motor vehicle; hit and run or leaving the scene of an accident; racing; using a motor vehicle to flee or attempt to elude an officer; fraudulent or fictitious use of or application for a drivers license; and DUI.

       1985 Journal of the House, Vol. I, pp. 613-618; Vol. II, pp. 1650-1654; 1985 Journal of the Senate, Vol. I, pp. 1293-1299.


text:
    A95A1516.
    SCOTT v. McDONALD et al.
    (463 SE2d 379)
   Andrews, Judge.

This case is before us on appeal from the trial court’s order granting summary judgment to John E. McDonald. The issue on appeal is whether the trial court erred in finding that no agency relationship existed between Bobby Ray McDonald and John McDonald because Bobby Ray was an independent contractor. We affirm the order of the trial court.

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

Viewing all the evidence in the light most favorable to the plaintiff, the record shows that on October 10, 1992, Scott was coming out of John’s Country Junction, a store owned by John McDonald, when he was struck on the ear by a rock thrown from under a lawn mower operated by Bobby Ray McDonald. Scott filed suit on October 11, 1993 against both Bobby Ray and John McDonald, alleging that they were jointly and severally liable because Bobby Ray was acting as John’s agent when the incident occurred. John claimed that Bobby Ray was not an employee but an independent contractor.

Bobby Ray and John had an oral contract under which Bobby Ray would cut the grass around John’s store and residence for $350 a month. Bobby Ray said that John instructed him to cut the grass as low as possible and weed around the railroad ties and shrubs. While Bobby Ray stated that he considered himself an employee of John McDonald, he also stated that he had several other customers for whom he did yard work and that he used and maintained his own equipment.

OCGA § 51-2-4 provides “[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” “An employer-employee relationship exists when the employment agreement gives, or the employer assumes, the right to control the time and manner of executing the work. In an employer-independent contractor relationship, the employer has the right merely to require results in conformity with the employment agreement, and the independent contractor retains the right to perform the work by his own means, method and manner.” (Citation omitted.) McDaniel v. Peterborough Cablevision, 206 Ga. App. 437, 438 (425 SE2d 424) (1992). “ ‘If one is employed generally to perform certain services it may be inferable that the employer retained the right to control the manner, method and means for performance of the contract. However, where there is a specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the right of control was not retained and an independent contractor relation existed.’ ” N. S. Co. v. Cincinnati Ins. Co., 203 Ga. App. 347, 348 (416 SE2d 859) (1992).

In this case, it is clear that Bobby Ray was an independent contractor and not John McDonald’s employee. This was a specific contract to cut the grass around John McDonald’s store and house for the sum of $350 per month. John McDonald had the right to require results in conformity with the employment agreement, i.e., that Bobby Ray would cut the grass as low as possible and weed around the railroad ties and the shrubs. Bobby Ray decided what day and time and in what manner he would cut the grass and weed. This was clearly a specific contract to do certain work for a stipulated sum. N. S. Co., supra.

For the reasons discussed above, we find that Bobby Ray McDonald was an independent contractor and not an employee of John McDonald. Accordingly, the trial court did not err in granting summary judgment to John McDonald.

Decided October 25, 1995.

Newton, Smith, Durden, Kaufold & Rice, William R. Rice, for appellant.

Andrew, Threlkeld & Thompson, Reid A. Threlkeld, for appellees.

Judgment affirmed.

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

       While there are circumstances in which an employer can be liable for the negligence of an independent contractor under OCGA § 51-2-5, none of those circumstances is present in this case.