text:
    A91A2178.
    PROCTOR v. RAPID GROUP, INC.
    (416 SE2d 774)
   Sognier, Chief Judge.

Elden Proctor brought suit against Rapid Group, Inc. seeking insurance benefits he claimed were payable to him after a vehicular accident involving the taxicab he was driving. The trial court granted summary judgment to Rapid Group, and Proctor appeals.

The relevant facts are not disputed. Appellee operated a self-insurance plan for several taxicab companies and at the time in issue held a self-insurance certificate issued by the Department of Public Safety under a former version of OCGA § 33-34-2 (12). Appellant, who owned his taxicab, agreed with University Cab Company d/b/a Yellow Cab to operate his cab as a Yellow Cab. Pursuant to this agreement, appellant paid Yellow Cab a sum certain-each month, a portion of which Yellow Cab tendered to appellee to cover appellant’s cab under the self-insurance plan. In return, appellee issued to appellant an automobile insurance card. In December of 1983 appellant was injured in a collision while driving his cab. He submitted proof of loss and made claim upon appellee for benefits, and appellee eventually paid appellant a total of $5,000 in no-fault benefits. Appellant subsequently tendered additional premium and demanded optional PIP benefits, claiming that he had not been offered the option of purchasing additional PIP. See Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 710-712 (1) (300 SE2d 673) (1983). After appellee refused the demand, appellant filed this action.

1. Appellant first contends the trial court erred by granting summary judgment to appellee because appellee did not meet the requirements for entitlement to a self-insurance certificate, at least as to appellant, because it did not “operate” appellant’s cab as required by OCGA § 40-9-101 (a) (2). Appellant argues that as appellee was not properly a self-insurer as to appellant, it is an insurer, see OCGA § 33-1-2 (4), and consequently, under Flewellen, supra, was required to offer optional PIP coverage to appellant. We find no merit in this argument.

The accident in issue occurred in 1983. Former Ga. Code Ann. § 68C-602, the predecessor statute to OCGA § 40-9-101 in effect at the time of the accident, did not contain a special provision relating to vehicles for hire equivalent to OCGA § 40-9-101 (a) (2). Former Ga. Code Ann. § 68C-602 did not require that a self-insurer “operate” the vehicles it insures, but provided only that “[a]ny person in whose name one or more vehicles are registered in this State may qualify as a self-insurer by obtaining a certificate of self-insurance from the [Department [of Public Safety].” Id. at (a). Since it is uncontroverted that appellant’s cab was registered in the names of both appellant and appellee, appellee met the requirements for a self-insurer under the law in effect at the relevant time.

2. Appellant also maintains the trial court erred by relying on Twyman v. Robinson, 255 Ga. 711 (342 SE2d 313) (1986) in granting summary judgment to appellee because Twyman is distinguishable from this case in several respects. In Twyman, which involved the issue whether a plan of self-insurance must include uninsured motorist coverage, the Supreme Court held that “a plan and certificate of self-insurance serve as the substantial equivalent of a no-fault policy,” id. at 712, and thus must include such coverage “[ujnless the plan of self-insurance submitted to the commissioner of public safety ‘reject(s) the minimum . . . coverage in writing,’ [cit.]. . . . Each self-insurer, a group which may include . . . cab companies, will accordingly have to inform the public, through the commissioner of public safety, when the self-insurer wishes to deny its patrons and employees uninsured motorist coverage.” Id.

The trial court reasoned that although the case sub judice concerned optional PIP rather than uninsured motorist coverage, the rationale used by the Supreme Court in Twyman was persuasive. We agree. Given the Supreme Court’s holding in Twyman that a self-insurer may decline to include uninsured motorist coverage in its plan despite the language in OCGA § 33-7-11 requiring such coverage “except where the insured rejects” it, it follows that a self-insurer may also decline, in the manner prescribed in Twyman, to offer optional PIP coverage despite the language in OCGA § 33-34-5 requiring it to offer such coverage. In its plan filed with the Department of Public Safety, appellee had both outlined the maximum no-fault benefits available and stated specifically elsewhere in the plan that “[t]his self-insurance program provides only the basic coverage, and no optional additional coverage.” Appellee thus adequately informed the public, including appellant, that its plan provided only basic coverage and excluded optional no-fault benefits,and complied with the obligations of self-insurers as established in Twyman.

3. Given that the statute in effect at .the time of this incident did not require that a self-insurer be named on the certificate of title to the vehicle, compare OCGA § 40-9-101 (a) (2), we do not agree with appellant that his ownership of the cab makes the facts sub judice materially distinct from those in Twyman so as to require a different result.

4. Our holding in Division 2 controls adversely to appellant his argument that in accepting a self-insurance certificate, appellee obligated itself to have a plan providing multiple coverages and benefits as set forth in the language of the Motor Vehicle Accident Reparations Act, OCGA § 33-34-1 et seq., and thus impermissibly limited its coverage to basic PIP coverage. In Twyman the Supreme Court permitted such limitation provided the self-insurer notifies the public by rejecting optional coverage in its plan filed with the Department of Public Safety. Twyman, supra at 712-713.

Decided February 20, 1992

Reconsideration denied March 6, 1992

Jean W. Levy, for appellant.

Sidney L. Moore, Jr., for appellee.

Accordingly, we affirm the trial court’s grant of summary judgment to appellee as to appellant’s claim for optional PIP.

5. Appellant asserts, and appellee concedes, that the trial court made no ruling regarding appellant’s claim under OCGA § 33-7-11 (j) for penalties for appellee’s late payment of benefits. Accordingly, the trial court’s ruling on the issue of optional PIP was a grant of partial summary judgment, see OCGA § 9-11-56 (d), and the case must be remanded for adjudication of this issue.

Judgment affirmed in part and case remanded in part.

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

       In 1989, OCGA § 33-34-2 (12), defining “self-insurer,” was amended to require filing of a self-insurance plan with the Commissioner of Insurance rather than the Commissioner of Public Safety, Ga. Laws 1989, p. 14, § 33, and was repealed effective October 1, 1991. Ga. Laws 1991, p. 1608, § 1.12.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A2242.
    REID v. AUGUSTA-RICHMOND COUNTY COLISEUM AUTHORITY et al.
    (416 SE2d 776)
   Andrews, Judge.

After attending a concert at the Augusta civic center, Reid was shot and severely injured outside the civic center building. Claiming that his injuries were caused by a negligent failure to keep the civic center premises and approaches safe, he sued the Augusta-Richmond County Coliseum Authority (Coliseum Authority), which owned and operated the civic center, and Sizemore Security International, Inc. (Sizemore), which was employed by the Coliseum Authority to provide services at the concert. Reid also sued the gunman, Arthur Z. Bennett, and the promoter of the concert, neither of whom are involved in this appeal. Reid appeals from the trial court’s orders granting summary judgment in favor of the Coliseum Authority and Size-more.

Construed in favor of Reid as the non-moving party, the record shows that he attended a concert at the civic center as an invitee of the Coliseum Authority. After arriving at the concert at about 8:00 p.m., Reid was confronted by Bennett inside the civic center at about 9:00 p.m. during a break in the concert. Bennett was angry because about a month earlier Reid informed the police that Bennett was involved in a series of local car thefts and burglaries. Prior to the night of the concert, the two had fought over this same issue. The two men struggled briefly, and Bennett was heard to say to a companion, “Let me have the pouch.” Reid took this comment to imply that there was a weapon of some kind in the pouch, although he saw no weapon. Reid broke away and left, and Bennett did not follow. Reid reported the incident to a uniformed Sizemore guard located inside the civic center, telling the guard that he had been in a fight, and he believed the other party might have a weapon. The Sizemore guard did not look for Bennett or otherwise investigate or report the incident.

Reid stayed at the concert for another two hours, then left the civic center building with his nephew at approximately 11:00 p.m., prior to the conclusion of the concert, and waited in or adjacent to the civic center parking lot for a ride home. Sometime between 11:00 p.m. and midnight the concert concluded. Reid and his nephew were still waiting outside the civic center when they were surrounded by a group of seven or eight individuals including Bennett, who had a gun. Reid’s nephew ran back to the civic center, but Reid was unable to escape. The nephew approached another Sizemore guard at a door to the civic center, told him that someone had a gun, and someone was going to be shot, and requested that he come help. The Sizemore guard refused to leave his position. Reid’s nephew saw no other police, ran back through a crowd of people in the area, and arrived just as Bennett shot Reid. After being shot, Reid was found lying, not on civic center property, but on a City of Augusta sidewalk immediately adjacent to the civic center property. The record is unclear as to where Bennett was located when he shot Reid.

On the night of the concert, Sizemore guards had been hired by the Coliseum Authority to provide uniformed personnel to collect money from patrons parking in the civic center parking lot prior to the concert, take up tickets at the entrances, and to stand guard inside the civic center at the fire exits and doors to ensure there was no unauthorized entry into the building. The Sizemore guards were instructed not to leave their posts, and not to attempt to physically intervene in any altercation. Evidence showed that if a patron told a Sizemore guard assistance was needed because of a threat from another patron, they should direct that person to contact an Augusta Police Department (APD) officer on security duty at the concert. Security inside and outside the civic center during and after the concert was provided by the APD. Pursuant to the city ordinance, the Coliseum Authority was required to contact the APD to arrange for all security matters at civic center events. The APD assigned 15 officers and a supervisor to the concert, and retained control over the means, method and manner of providing security at the civic center.

Reid’s claim that the premises was not maintained in a safe condition is based on two theories: (1) that the Coliseum Authority was negligent in failing to provide adequate security under the circumstances, and (2) that the security measures undertaken were negligently performed.

1. There is no basis in the record for the claim that the Coliseum Authority negligently failed to provide adequate security for invitees at the concert. It is undisputed that the APD provided security at the civic center against the type of danger which resulted in the injury to Reid. In doing so, the APD acted as an independent contractor determining the number of officers to be assigned, and retaining the right to control the means, method and manner of the security measures employed. The Coliseum Authority contacted the APD, discussed the event, and arranged for security to be provided. There is no evidence that the APD was not made fully aware of the circumstances of the event so it could make an informed independent judgment as to the security measures necessary under those circumstances. Where an owner does not exercise control over security services hired as independent contractors to provide security on the premises, generally the hirer is not liable for the negligence of the independent security service. U. S. Shoe Corp. v. Jones, 149 Ga. App. 595, 596 (255 SE2d 73) (1979).

Even if the Coliseum Authority were not insulated by the independent contractor status of the APD, there is no support in the record for a claim that inadequate security measures at the concert caused the injury. Generally, an owner is under no duty to anticipate a criminal assault against an invitee by a third party; however, the general rule does not apply where the owner has reasonable grounds for knowing that such a criminal act would be committed. Grandma’s Biscuits v. Baisden, 192 Ga. App. 816, 817 (386 SE2d 415) (1989). In order to prove that the owner had advance notice of the danger of such an assault, evidence is admissible to show a pattern of prior substantially similar criminal assaults on the premises creating a known dangerous condition for which the owner may be held liable. Id. at 817. Here, there is no probative evidence in the record to show any such pattern of substantially similar acts sufficient to attract the Coliseum Authority’s attention in advance to a dangerous condition. Moreover, this assault arose from pre-existing personal animosity between Reid and Bennett. As such, there is no evidence the attack was part of a pattern of foreseeable assaults for which advance security measures should have been taken.

A plaintiff may not claim inadequate security and avoid summary judgment by “simply pointing] to [his] injuries as evidence that the landowner failed to take reasonable precautions to protect [him].” Lau’s Corp. v. Haskins, 261 Ga. 491, 493-494 (405 SE2d 474) (1991). The plaintiff is required to come forward with evidence sufficient for a reasonable jury to conclude that the owner failed to take reasonable steps to protect him against injury. Id. at 494. Here, the only evidence regarding the level of security was from the Coliseum Authority and the APD which showed that based on experience with similar events the APD provided a force of 15 officers plus an APD supervisor to patrol inside and outside the civic center during and after the concert. There is no evidence showing the level of security was below a reasonable standard of care.

2. Reid further claims that Sizemore personnel, acting as employees of the Coliseum Authority, negligently failed to use reasonable care in performing security functions. Reid claims that after he reported his initial encounter with Bennett to a Sizemore guard, the guard was negligent in failing to investigate the report, or at least in failing to inform an APD officer of the fight and the possible presence of a weapon. He alleges that after the concert, the Sizemore guard informed of the incident occurring outside the civic center negligently failed to respond to prevent the shooting.

There is no evidence the Sizemore personnel were hired to perform the duties that Reid claims they negligently failed to do. The Sizemore personnel were hired to take money in the parking lot, take tickets, and guard doors inside the civic center to ensure there was no unauthorized entry into the building. They were instructed to remain at their posts, and had no authority or duty to intervene in the incidents at issue. In short, they did what they were supposed to do, and left other security matters to the APD officers hired for that function. The fact that the Coliseum Authority elected to provide uniformed Sizemore guards for a limited security function at the doors, in addition to the APD officers, does not heighten the standard of care, nor require that they undertake duties beyond that limited function. Given that the level of security against the danger at issue was adequate without the addition of the Sizemore guards, liability would result only if their response to the incidents was unreasonable, made the situation worse by increasing the danger, misled the plaintiff into the belief that they had removed the danger, or deprived the plaintiff of the possibility of help from other sources. Lau’s Corp., supra at 494-495. We find no evidence that the Sizemore guards were negligent under any of these criteria. Even if the guard to whom the initial report was made should have directed Reid to an APD officer, the record shows that Reid knew APD officers were on duty at the concert, had seen them inside the civic center that night, and failed to contact an APD officer after the Sizemore guard did nothing.

Decided February 20, 1992

Reconsideration denied March 6, 1992

“It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence. Ordinarily, even where the proprietor’s negligence is shown he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. However, the above rule has been held inapplicable if the [proprietor] . . . had reasonable grounds for apprehending that such criminal act would be committed.” (Citations and punctuation omitted.) Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (392 SE2d 535) (1990). Here, there is no evidence Reid told the Sizemore guard or anyone else that Bennett’s attack was not a chance encounter, but personally motivated from a long-standing dispute and likely to recur if he encountered Bennett again at the concert. Based on the information provided by Reid after the first encounter, the intervening attack which arose out of personal malice against Reid was not foreseeable, thus the proprietor was not liable. See Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 673-674 (165 SE2d 179) (1968); Adler’s Package Shop v. Parker, 190 Ga. App. 68, 69-70 (378 SE2d 323) (1989).

Moreover, with full knowledge of the danger which he believed to exist, Reid stayed at the concert for another two hours, and then waited outside the building for about another hour as the concert concluded, before Bennett arrived and shot him. A proprietor is not liable for a plaintiff’s injuries caused by a dangerous condition on the premises if the plaintiff had equal or superior knowledge of the danger, and could have by the exercise of ordinary care, avoided the danger. Froman v. Smith, 197 Ga. App. 338-339 (398 SE2d 413) (1990). Reid had superior knowledge of the danger of a repeat attack, and it appears from the circumstances that he could have exercised ordinary care to avoid the second encounter. Compare Clark v.. Carla Gay Dress Co., 178 Ga. App. 157, 159-161 (342 SE2d 468) (1986).

There was no error in the trial court’s orders granting summary judgment in favor of the Coliseum Authority and Sizemore.

Judgment affirmed.

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

William R. McCracken, William H. Lumpkin, for appellant.

Fulcher, Flagler, Reed, Hanks & Harper, William C. Reed, N. Staten Bitting, Jr., Burnside, Wall & Daniel, Robert C. Daniel, Jr., Hull, Towill, Norman & Barrett, Patrick J. Rice, George R. Hall, for appellees.

       For purposes of this opinion, we assume, without deciding, that Reid retained his status as an invitee to whom a duty was owed to maintain a safe premises and approaches thereto. See Todd v. F. W. Woolworth Co., 258 Ga. 194 (366 SE2d 674) (1988).

       Reid’s attempt to create a factual question by offering the affidavit of a security expert is to no avail. The affiant’s conclusions that security provisions were inadequate, or were negligently undertaken were based on assumptions taken from hearsay and other facts not supported in the record, and have no probative value.


text:
    A91A0247.
    THOMAS v. THE STATE.
    (417 SE2d 222)
    Decided March 6, 1992.

      William V. Hall, Jr., for appellant.

      Robert E. Wilson, District Attorney, Barbara B. Conroy, Gregory A. Adams, Assistant District Attorneys, for appellee.
   Andrews, Judge.

In Thomas v. State, 261 Ga. 854 (413 SE2d 196) (1992) the Supreme Court reversed the judgment of this Court in the above captioned case in Thomas v. State, 199 Ga. App. 586 (405 SE2d 512) (1991). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

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


text:
    A91A0682.
    POSTELL v. THE STATE.
    (417 SE2d 222)
    Decided March 6, 1992.

      Perry, Walters & Lippitt, Jesse W. Walters, Nancy G. Grigg, for appellant.
   Andrews, Judge.

In Postell v. State, 261 Ga. 842 (412 SE2d 831) (1992) the Supreme Court reversed the judgment of this Court in Postell v. State, 200 Ga. App. 208 (407 SE2d 412) (1991). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

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

Britt R. Priddy, District Attorney, for appellee.


text:
    A91A1619.
    WREGE et al. v. COBB COUNTY.
    (416 SE2d 562)
   Andrews, Judge.

This is a condemnation case arising out of the following facts. In 1986, Marrett Properties sought to develop a subdivision in Cobb County which was adjacent to appellants’ property. In connection therewith, the Cobb County Commissioners, after hearing evidence, condemned a portion of appellants’ property for purposes of a sewer easement. When Marrett Properties encountered problems in using the easement as planned, Cobb County condemned a second easement across appellants’ property to service the subdivision.

The condemnation proceedings were held pursuant to OCGA § 22-2-100 et seq., and the special master made a value determination, denied the appellants’ objections to the non-value issues, and the case then was bifurcated. In February 1987, the value issues regarding the property were heard by a Cobb County jury and subsequently the amount of the jury award was paid into the registry of the court. In the meantime, appellants appealed the non-value issues to the superior court, which found their arguments without merit and upheld the special master’s award regarding those issues. Appellants appealed the superior court’s determination to this court in Wrege v. Cobb County, 186 Ga. App. 512 (367 SE2d 871) (1988), and this court reversed the trial court’s decision.

Before the case was readjudicated, in November 1987, appellants withdrew the monies for the condemnation held by the clerk of court. Then, pursuant to this court’s decision in Wrege, supra, the case returned to the special master for a hearing regarding the non-value issues. At this juncture, the parties entered into written stipulations which stated that all value issues had been resolved and that the appellants had been, paid $17,950 for the taking of the property. Included in the record is a copy of the order by which the funds were paid to appellants.

The special master again ruled in favor of Cobb County regarding the remaining issues in the case, and accepted Cobb County’s contention that acceptance of the award barred appellants’ arguments. Appellants again appealed to the superior court, and the superior court, recognizing that the sole matter before it was the county’s right to condemn the property, affirmed the decision of the special master. The superior court also found that by accepting the payment of the jury award appellants had acquiesced in the judgment of the superior court vesting title to the easement and were estopped to contest the condemnor’s right to condemn.

Decided March 6, 1992.

Douglas Wrege, pro se.

Johnson & Lowry, Ronald A. Lowry, for appellee.

Citing Tingle v. Ga. Power Co., 150 Ga. App. 867 (258 SE2d 668) (1979), Cobb County argues that the superior court’s decision was proper, and that appellants’ enumerations are without merit since by accepting payment for the property they are estopped to contest Cobb County’s right to condemn. We agree. There is no dispute that appellants received payment for the taking of the property. After receiving such payment, they cannot now claim that they may also contest the validity of that taking.

This issue was addressed in the Tingle case in the context of a condemnation by a public utility for an easement. Concluding that appellants were precluded from arguing that the condemnation itself was improper since they had been paid for such taking, this court stated: “[w]e agree that the Tingles have acquiesced in the judgment of the superior court vesting title to the easement in the power company by accepting payment of the award of compensation, and are now estopped to protest the condemnation. ‘(O)bviously one can not voluntarily accept the money awarded for his property and still contest the right to condemn.’ Williams v. City of LaGrange, 213 Ga. 241, 244 (2) (98 SE2d 617) (1957) and cits. See also Johnson v. Fulton County, 103 Ga. App. 873, 878 (121 SE2d 54) (1961); Robinson v. Transcontinental Gas Pipeline Corp., 306 FSupp. 201 (7) (N.D. Ga. 1969), aff’d. 421 F2d 1397, cert. den. 398 U. S. 905.” Id. at 868; see also Johnston v. Clayton County Water Auth., 222 Ga. 39 (1) (148 SE2d 417) (1966).

The same logic applies here and appellants are estopped to protest Cobb County’s right to condemn. We are not persuaded by appellants’ unsupported argument that Tingle is not applicable since the property had been taken and put to use prior to the taking of the award. Similarly, our conclusion is not changed by OCGA § 22-2-113. Despite the fact that subsection (a) of that statute states that the acceptance of the award “shall not prevent any party from prosecuting the appeal,” this language is not applicable to appeals in which the condemnee challenges the right to condemn, as opposed to the amount of the award. Because of this conclusion, we need not address appellants’ remaining arguments.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A91A1888.
    HAMMETTE et al. v. EICKEMEYER.
    (416 SE2d 824)
   Cooper, Judge.

Appellee filed an Arizona judgment that he had obtained against appellant Hammette with a Georgia court pursuant to OCGA § 9-12-130 et seq., the Uniform Enforcement of Foreign Judgments Law. Pursuant to the statute, the Georgia court notified appellants of the filing, and appellants filed a response requesting that enforcement of the foreign judgment be stayed due to the lack of jurisdiction over appellants by the Arizona court. In their response, appellants also asserted a counterclaim against appellee. Appellee failed to appear at the calendar call, and the trial court issued an order granting default judgment and awarding damages to appellants on the counterclaim. Appellee then filed a motion to set aside the trial court order on the counterclaim, arguing that the trial court did not have personal or subject matter jurisdiction over appellee or the counterclaim pursuant to OCGA § 9-12-130 et seq. The trial court granted appellee’s motion to set aside the judgment on the counterclaim but temporarily stayed enforcement of the Arizona judgment.

Appellants then moved to set aside and permanently stay enforcement of the Arizona judgment, and the trial court set aside the Georgia judgment that resulted from the filed foreign judgment after the court determined that the Arizona court lacked personal jurisdiction over appellants. Appellee did not appeal the order setting aside the filed Arizona judgment; however appellants appeal from the order of the trial court granting appellee’s motion to set aside the judgment on the counterclaim.

This case presents the issue of whether a counterclaim can be asserted in a proceeding instituted under the Uniform Enforcement of Foreign Judgments Law, a question of first impression in this state. The trial court found that OCGA § 9-12-130 et seq. is a special statutory proceeding for filing a foreign judgment and does not provide for the filing of counterclaims by the judgment debtor; that the Court did not have any jurisdiction to enter any judgment against the appellee as to appellants’ counterclaim; that the only question which may be litigated pursuant to OCGA § 9-12-130 et seq. is whether the enforcement of the foreign judgment should be stayed in Georgia; and that the filing of the foreign judgment by the judgment creditor submits the appellee to the jurisdiction of this Court only to the extent necessary for a determination of whether the foreign judgment’s enforcement should be stayed in Georgia. The reasoning of the trial court finds support in both the statutory scheme and in decisions of other jurisdictions. The Uniform Enforcement of Foreign Judgments Law is a summary procedure for endowing a filed foreign judgment with the “same effect” as a judgment of the court in which it is filed. See OCGA § 9-12-132. The remedy allowed a judgment debtor under the statute is a stay of enforcement of the foreign judgment. OCGA § 9-12-134. The statute makes no provisions for the assertion of counterclaims by a judgment debtor. Further, the statute provides that it “shall be interpreted and construed to achieve its general purposes to make the law of those states which enact it uniform.” OCGA § 9-12-137.

Decided March 6, 1992.

Garrett, McManus & Grubb, John G. Grubb, Jr., for appellants.

Palmer, Howard & Clark, J. Larry Palmer, Christopher C. Howard, Jr., for appellee.

Other jurisdictions faced with this issue have deemed the assertion of counterclaims inconsistent with the summary nature of the uniform law and the purpose of the law, which is to expedite the recognition and enforcement of foreign judgments. Gem Mfg. Corp. v. Lents Indus., 554 P2d 166 (1976). As stated in Gem Mfg., “[t]he debtor should have the opportunity to present defenses for the purpose of impeaching the validity of the judgment, but it is reasonable to end the inquiry there.” Id. at 168-169. See also Landon v. Artz, 631 P2d 1237 (1981). We conclude that the reasoning set forth in the above cases and in the trial court’s order is correct. Appellants’ counterclaim was not properly asserted, and the motion to set aside the judgment on the counterclaim was correctly granted.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1900.
    JACKSON v. LYNCH.
    (416 SE2d 564)
   Andrews, Judge.

Plaintiff Jackson appeals the defendant’s verdict and judgment arising from an automobile accident claim, alleging three jury charge errors.

Viewed in favor of the verdict, the evidence was that, on July 21, 1986, Jackson, driving a Mercedes sedan, was stopped in rush hour traffic on 1-75, when he was hit from the rear by Lynch, driving an Isuzu Impulse. Traffic had been stop and go and Lynch was travelling approximately five mph when he struck Jackson. After the collision, Jackson did not voice any complaint concerning his neck, back or wrist. He and Lynch waited approximately two hours for an officer to investigate the accident, but none arrived. They exchanged insurance information and both drove their cars away. No repairs were made to the Mercedes, except the replacement of a water pump which Jackson attributed to the accident. Jackson, although near a hospital, did not seek medical advice that day. That night, he experienced stinging in his left wrist and neck discomfort. He made an appointment with a doctor for July 23 and his neck and wrist were x-rayed. Rest was prescribed as well as muscle relaxers and Motrin.

Jackson was a 28-year employee of Southern Bell at the time of the accident. He did not report to work after the accident for three weeks. Although he was aware he needed a doctor’s excuse if absent over a week, none was produced. Over the next two years, he would on his own take three or four days a week off if his neck was bothering him. In 1986, he missed 31 days, in 1987, 77 days, and in 1988, prior to April, 14 days. No treatment was received for his wrist from August 1986. until March 1988. Jackson was involved in another car accident in the summer or fall of 1987. He also had been in one in 1977 in which he injured his neck. He had home traction for treatment of his neck which had been prescribed in April 1985, prior to the wreck at issue.

In March 1988, Jackson saw a hand/wrist specialist who diagnosed a congenital irregularity in bone length as well as torn cartilage in his left wrist. In May, he was operated on and the bone was shortened as well as the cartilage repaired.

Because of his extensive absences, after union negotiation, Jackson was allowed to take “induced retirement” instead of being fired by Southern Bell in April 1988. Southern Bell records reflected as the main reason for these absences neck and back problems from an automobile wreck.

At trial, the issue of liability for the wreck was conceded by Lynch and only causation and damages were contested.

1. Pursuant to written request of Lynch, premised on Boatright v. Rich’s, 121 Ga. App. 121, 123 (6) (173 SE2d 232) (1970), the court charged as follows: “I further charge you, that when any person offers himself as a witness in his own behalf, his testimony should be construed most strongly against him, if it is vague and uncertain.”

At the charge conference, Jackson objected to this request to charge as “argumentative and not conforming to the evidence in this case, and it is not a correct statement of the law standing alone on the subject of a witnesses testimony.” After the court’s charge to the jury, when asked for objections to the charge, Jackson adopted by reference the objections voiced earlier to the numbered requests, including this one.

The charge is a correct statement of the law. Weathers v. Cowan, 176 Ga. App. 19, 21 (2) (335 SE2d 392) (1985); Boatright, supra. Here, the testimony of Jackson on the nature, extent, timing and cause of his neck and wrist injuries was, at a minimum, vague and uncertain. The charge was not given “standing alone,” but was part of an extensive and complete charge to the jury on the credibility of witnesses. The charge, considered in light of the charge as a whole, was not error. Shennett v. Piggly Wiggly Southern, 197 Ga. App. 502, 503 (1) (399 SE2d 476) (1990); cf. Renew v. Edenfield, 200 Ga. App. 484, 486 (3) (408 SE2d 499) (1991).

Decided March 6, 1992.

Higgins & Dubner, Michael W. Higgins, for appellant.

Harper, Waldon & Craig, Thomas D. Harper, for appellee.

2. Jackson also complains of the giving of two of defendant’s requests dealing with damages. The only objection raised to request 13 below was that it was improper, unduly argumentative, tenuous, and already covered by other portions of the charge. As to request 15, the only issued raised was that if it were given, no write-off of the verdict would be needed.

These are not the objections now raised to the charge and these will not be considered for the first time here. Glenridge Unit Owners v. Felton, 183 Ga. App. 858, 860 (5) (360 SE2d 418) (1987).

Judgment affirmed.

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

       Since a defendant’s verdict was returned, any error in the charges relating to measure of damages would be harmless in any event. Luke v. Spicer, 194 Ga. App. 183, 184 (4) (390 SE2d 267) (1990); compare Mathis v. Watson, 259 Ga. 13 (376 SE2d 660) (1989).


text:
    A91A1976.
    DUKES v. RUTH.
    (416 SE2d 565)
   Andrews, Judge.

Dukes appeals from the verdict and judgment for defendant Ruth in this suit arising from a traffic accident.

Viewed in favor of the verdict, the evidence was that Dukes and his girl friend were traveling toward Ruth on a five-lane highway, including a center turn lane. Ruth was in the turn lane facing Dukes and waiting to turn left across his path of travel.

Ruth turned in front of Dukes and her car was struck in the right rear quarterpanel by the right front end of Dukes’ pickup. Both vehicles had on their lights. Ruth said an event occurring at the stadium near the highway “got her attention” and she did not see Dukes before the impact.

There were no skid marks at the point of impact. Dukes stated that he did not see the Ruth vehicle until it was about ten feet in front of him.

Decided March 6, 1992.

Gibson & Jackson, Douglas L. Gibson, for appellant.

Dillard, Landers, Bower & East, Joseph E. East, for appellee.

The court charged the principles of comparative negligence and last clear chance, as well as other operative negligence concepts.

1. Dukes’ first and second enumerations allege error in the court’s giving of one instruction and in overruling of his motion for new trial on that ground.

The objected to charge was that “if you find that . . . [Dukes] was exceeding the posted speed limit at the time of the accident, this would be negligence per se.” The only objection made to that charge was that there was no evidence of the posted speed limit before the jury. While there was no such evidence, that alone does not equate to harmful error requiring reversal.

First, the quoted charge must be considered in the context of the more extensive charge of which it was a part. Smaha v. Moore, 193 Ga. App. 23, 24 (387 SE2d 13) (1989). The overall charge was addressed to the duties of persons driving automobiles, including that “every person shall drive at a reasonable and prudent speed when approaching an intersection,” and that “no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions.” There was evidence which would have authorized the jury to conclude that Dukes was going too fast for conditions, regardless of any posted speed limit.

“ ‘Inaccuracies in a charge which do not mislead or obscure meaning, do not require a new trial. [Cit.]”’ Strickland v. Dept. of Transp., 196 Ga. App. 322 (1) (396 SE2d 21) (1990); Whitehead v. Cogar, 180 Ga. App. 812, 813 (1) (350 SE2d 821) (1986). Dukes has failed to show any harm from the protested charge.

2. Finally, after the jury was charged, Dukes made a motion for directed verdict on the issue of liability of Ruth, a denial of which is claimed as error. Having made no such motion during the trial, this presented nothing for the trial court’s ruling nor our review. OCGA § 9-11-50; Lashua v. Tomlin, 194 Ga. App. 3, 4 (389 SE2d 767) (1989).

Judgment affirmed.

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


text:
    A91A1980.
    In the Interest of H. M. T., a child.
    (416 SE2d 567)
   Cooper, Judge.

This appeal is brought by the natural mother of H. M. T. from an order of the Houston County Juvenile Court terminating her parental rights. Appellant contends that the evidence was insufficient to warrant the termination of her parental rights.

Appellant is a 27-year-old divorced mother of three children including two-year-old H. M. T., the youngest of the three. Appellant’s ex-husband, the natural father of all three children, has custody of the two older children and has formally relinquished his parental rights as to H. M. T., who was conceived and born after the divorce. Following her divorce, appellant pled guilty to charges stemming from her unauthorized use of her ex-husband’s credit card. In March 1989, appellant’s probation was revoked, and appellant was incarcerated because she failed to report to her probation officer. Appellant left H. M. T. with her mother, who subsequently decided that she could not care for the child. The Houston County Department of Family & Children’s Services (“DFCS”) commenced deprivation proceedings on behalf of H. M. T., and temporary custody of H. M. T. was given to DFCS. Appellant and DFCS entered into an agreement which outlined certain minimum requirements necessary to return H. M. T. to the home after appellant’s release from jail. In May 1989, appellant was released, and in July 1989, appellant was arrested and charged under one indictment with burglary, aggravated assault, false imprisonment, robbery, and theft by taking, and under a second indictment with malice murder, felony murder, burglary, aggravated assault, robbery, kidnapping, aggravated battery and theft by taking. The incidents charged in the two indictments occurred on June 13, 1989 and June 17, 1989, respectively, as a result of appellant’s attempt to steal money for drugs. In March 1991, appellant pled guilty to burglary and theft by taking and was sentenced to a total of 25 years to serve. DFCS subsequently filed a petition to terminate appellant’s parental rights, and following a hearing in the juvenile court, the judge entered an order terminating appellant’s parental rights and awarding permanent custody of H. M. T. to DFCS for adoptive placement.

“The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81 (a). First the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second the court considers whether termination is in the best interest of the child. [Cit.]” In the Interest of B. J. H., 194 Ga. App. 282 (1) (390 SE2d 427) (1990). The trial judge made detailed findings regarding the criteria to meet the two-step test. Specifically, the court found that within the 18 months preceding its order, other than a single letter written to H. M. T.’s caseworker, appellant had made no attempt to contact or communicate with H. M. T.; that appellant had no meaningful contact with H. M. T. for the preceding two years; and that H. M.T. was two years and four months old and was readily adoptable. The judge further found by clear and convincing evidence that H. M. T. was a deprived child within the meaning of OCGA § 15-11-2 (8) (A) and that such deprivation was likely to continue; that the continued deprivation was likely to cause serious physical, mental, emotional, or moral harm to H. M. T.; that appellant’s felony conviction and resulting imprisonment had a demonstrable negative effect on the quality of the parent-child relationship; that appellant’s use of drugs rendered her incapable of providing adequately for the physical, mental, emotional or moral condition and needs of H. M. T.; that appellant failed for a period of one year or longer prior to the filing of the petition for termination of parental rights to communicate with H. M. T. or to comply with the court ordered reunification plan; that H. M. T. is well adjusted and cared for in her foster care placement; and that adoptive placement was likely in the event appellant’s parental rights were terminated; that H. M. T. was in need of a secure and stable home and that it would be in the best interest of H. M. T. for appellant’s parental rights to be terminated. “ ‘The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody was lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met.’ ” In the Interest of B. L., 196 Ga. App. 807, 809 (3) (397 SE2d 156) (1990). Upon review of the record, we find that the trial court’s findings are supported by clear and convincing evidence. Accordingly, we find no error with the trial court’s termination of appellant’s parental rights. See In the Interest of S. K. L., 199 Ga. App. 731 (1) (405 SE2d 903) (1991).

Decided March 6, 1992.

Bond & Zimmerman, Diane M. Zimmerman, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Assistant Attorney General, Talbot, Ladson, Rowe & Edwards, Deborah A. Edwards, Special Assistant Attorney General, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Sognier, Chief Judge.

text:
    A91A1990.
    WILSON v. CITY OF RIVERDALE.
    (416 SE2d 825)
   Sognier, Chief Judge.

Teófila Wilson was convicted in the Municipal Court of the City of Riverdale of a violation of OCGA § 40-6-72 (b) (failure to yield right of way), the citation for which was issued after Wilson was involved in a two-car collision. She appealed to the Superior Court of Clayton County pursuant to OCGA § 40-13-28, which affirmed the judgment. Wilson then filed her direct appeal to this court.

1. The City contends that under Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521) (1988), appeals from convictions for motor vehicle law violations must be made by application pursuant to OCGA § 5-6-35 (a) (1), and thus this appeal should be dismissed for lack of appellate jurisdiction. OCGA § 5-6-35 (a) (1) requires an application for appeal for “[a]ppeals from decisions of the superior courts reviewing decisions of . . . lower courts by certiorari or de novo proceedings.” In Anderson, this court held that an appeal to superior court pursuant to OCGA § 40-13-28 was such a de novo proceeding so as to require an application for appeal to this court. However, in Walton v. State, 261 Ga. 392, 393-394 (2) (405 SE2d 29) (1991), the Supreme Court rejected this view, holding that an appeal under OCGA § 40-13-28 is an appeal on the record, not a de novo proceeding. Accordingly, we hold that Anderson will no longer be followed and that appeals from superior court reviews made pursuant to OCGA § 40-13-28 are directly appealable under OCGA § 5-6-34 (a).

2. In two enumerations appellant challenges the sufficiency of the evidence. Our review of the municipal court transcript discloses that appellant was travelling west on Springdale Road in Riverdale during morning rush hour. She stopped at a stop sign on Springdale Road at its intersection with State Highway 85, a seven-lane thoroughfare with a single center turn lane designed to be used by both northbound and southbound travellers. Appellant intended to turn left from Springdale Road and travel south on Highway 85. The northbound traffic on Highway 85 was backed up to a standstill because of a traffic light at an intersection north of Springdale Road. At trial three witnesses, all of whom had been stopped in northbound travel lanes just south of the Springdale Road intersection, testified that the northbound drivers allowed appellant to cross in front of the three northbound travel lanes in order to make her turn. As she began crossing the universal turn lane to enter the southbound lanes, she collided with Kinney, who had entered the turn lane from a northbound lane of Highway 85.

Appellant testified that she did not see Kinney in the center turn lane until they collided. Kinney testified that he was driving his usual route to his workplace in southwest Atlanta, that he entered the turn lane south of the Springdale Road intersection with the intention of turning left onto Springdale Road, and that he did not see appellant’s car when he entered the turn lane. The other witnesses recalled seeing his car approaching, and they opined that he was travelling too fast for conditions. Kinney was convicted of improper lane change in the same trial on the basis of the court’s finding that he entered the turn lane too soon.

OCGA § 40-6-72 (b) provides in pertinent part that “every driver of a vehicle approaching a stop sign shall stop [at the designated point]. After stopping, the driver shall yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection. . . .” Contrary to appellant’s assumption, the municipal court’s finding that Kinney improperly entered the intersection has no bearing on appellant’s guilt. Although he may have entered too soon, the evidence established that he entered the lane to make a left turn, which is a lawful use of that lane. Thus, at the time appellant entered the intersection Kinney was lawfully in the lane and she was obligated to yield to him. Compare Harrison v. Ellis, 199 Ga. App. 199 (404 SE2d 348) (1991) (driver entering road had no duty to yield to approaching vehicle that was illegally using turn lane as a passing lane).

Appellant’s contention that Kinney’s vehicle was not approaching “so closely as to constitute an immediate hazard” is similarly without merit, for the fact that the collision occurred indicates that his vehicle presented such a hazard. Moreover, the testimony of Kinney and the other witnesses together with the undisputed evidence concerning the point of impact establishes that Kinney’s car was already in the turn lane when appellant entered it and thus qualified as a “vehicle in the intersection.” Accordingly, we hold the superior court correctly concluded the evidence satisfied the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Appellant also contends that Kinney’s testimony concerning his route of travel and reason for being in the turn lane was perjured and should have been struck. We do not agree. Contrary to appellant’s characterization of the events at trial, the transcript reveals that after some confusion ensued concerning Kinney’s testimony, the traffic court judge questioned Kinney to clarify the issue and then concluded that Kinney’s direction of travel on Highway 85 was consistent with his testimony concerning his route of travel and intended left turn. Furthermore, the testimony of appellant and the other witnesses was sufficient to support the verdict even without Kinney’s testimony.

Judgment affirmed.

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

Decided March 6, 1992.

Donald Ellis, for appellant.

Glaze, Glaze, Fincher & Brakefield, Laurel E. Henderson, for appellee.


text:
    A91A1991.
    HOLLIS et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    (416 SE2d 827)
   Cooper, Judge.

Appellee was granted summary judgment in a declaratory judgment action which was filed by appellee for the purpose of construing an exclusion in a homeowner’s policy.

Theodore McLain (“McLain”) owned a 1977 Ford station wagon which was towed to the driveway of McLain’s house in 1986 after it was involved in an accident. The car remained in McLain’s driveway, immobile, for approximately two years, and although the car was titled, it had not been tagged or insured since 1986. McLain used the car to store a lawnmower and other lawn tools, In May 1988, McLain desired to move the car from his driveway and his neighbor, John Hollis (“Hollis”), assisted McLain in an effort to start the car. McLain filed the tires with air, and Hollis installed a battery and connected up jumper cables. Hollis then primed the carburetor by pouring gasoline inside the carburetor while McLain turned the ignition. On the second such attempt to start the car, the engine backfired, and Hollis was burned with spewing gasoline. Hollis filed a negligence suit against McLain and appellee, McLain’s homeowner insurer, then filed a declaratory judgment action, alleging that it had no duty to defend McLain and that it had no obligation to pay benefits under the policy. Appellee relied on an exclusion in the policy relating to motor vehicles. Appellants, McLain and Hollis, appealed the trial court’s order granting summary judgment to appellee, urging that the court erred in holding that the policy exclusion operated to deny homeowner’s coverage to McLain.

McLain’s policy contained the following exclusion:

“1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily'injury or property damage: . . . e. arising out of the: (1) ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including any trailers, owned or operated by or rented or loaned to any insured;..."

Appellants contend that the exclusion does not apply in the instant case because the Ford station wagon was not a “motor vehicle” as contemplated by the policy and because appellants were engaged in an act of “repair,” not an act of “maintenance,” when the accident occurred. Appellants argue that “motor vehicle” is not defined in the policy; that the station wagon did not run and had not been operated for two years; that it had been used as a storage space; that “repair” is fundamentally different than “maintenance”; that the lack of definition in the policy created an ambiguity; and that the ambiguity should be construed in favor of the insured.

“ ‘The words used in policies of insurance, as in all other contracts, bear their usual and common significance [cit.], and policies of insurance are, as all other contracts, to be construed in their ordinary meaning.’ ” ([T]he parties’) rights are to be determined by [the policy’s] terms so far as they are lawful, and the language of the contract should be construed in its entirety, and should receive a reasonable construction and not be extended beyond what is fairly within its plain terms; and where the language fixing the extent of the liability of the insurer is unambiguous and but one reasonable construction is possible, the court must expound the contract as made.’ ” (Citations omitted.) Macon-Bibb County Hosp. Auth. v. Continental Ins. Co., 196 Ga. App. 399, 401 (1) (396 SE2d 50) (1990). “ ‘(I)f the provisions of an insurance policy are ambiguous, or if the provisions in it are conflicting, it is to be construed in favor of the insured and against the company. (Cit.) However, . . . “(c)ourts are not called upon, because of the rule that contracts of insurance are to be strictly construed against the insurer, and because the contract itself is one of insurance, to call forth doubt, through construction of plain and unambiguous provisions of such a contract.” (Cit.)’ [Cit.]” Liberty Nat. Ins. Co. v. Davis, 198 Ga. App. 343, 344 (401 SE2d 555) (1991). We do not find the exclusion contained in appellee’s policy to be ambiguous. First, we conclude that the Ford station wagon involved in the accident was a “motor vehicle” within the meaning of the policy exclusion. Despite the fact that the car did not run, it remained in substance a motor vehicle. Further, at the time of the accident, appellants had equipped the car with a battery and tires and were attempting to start the car and drive it from its place of rest, thus attempting to use the car as a motor vehicle. The car was not a “tool shed,” as appellants would argue, but was what it was created to be, a motor vehicle. We also do not find the term “maintenance” as used in the exclusion to be ambiguous, and we reject appellants’ contention that they were not engaged in maintenance at the time of the accident. Although we have discovered no Georgia cases directly on point, several states have concluded in almost identical factual situations that “[an] attempt to start [a car] by pouring gas into the carburetor, which resulted in the ignition of the gas, involved the ‘maintenance’ of the vehicle within the terms of [the] exclusion.” Broadway v. Great American Ins. Co., 465 S2d 1124, 1128 (1985). See Lawson v. Allstate Ins. Co., 456 S2d 1235 (1984); Volkswagen Ins. Co. v. Nguyen, 405 S2d 190 (1981); Holliman v. MFA Mut. Ins. Co., 711 SW2d 159 (1986). The record shows that the accident occurred when appellants were trying to start the car, and at that time they were not performing any other work on the car. As stated in Broadway, supra, “ [maintenance covers all acts which come within its ordinary scope and meaning. . . .” (Citations and punctuation omitted.) Id. at 1128. “ ‘ “An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.” (Cit.)’ [Cit.]” S & T Timber v. Southern Gen. Ins. Co., 198 Ga. App. 18, 19 (400 SE2d 379) (1990). Appellants’ actions were included in the meaning of “maintenance,” and accordingly, the trial court did not err in granting summary judgment to appellee.

Decided March 6, 1992.

Douglas L. Breault, John G. Wolinski, for appellants.

Tittsworth & Grabbe, Michael W. Tittsworth, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2020.
    BOWERS et al. v. JIM RAINWATER BUILDER & PROPERTIES, INC.
    (416 SE2d 832)
   Cooper, Judge.

Appellants appeal the trial court’s grant of summary judgment to appellee in appellee’s action to revive a dormant judgment.

In 1983, appellee filed a dispossessory action against appellants. On June 24, 1983, an order in the dispossessory action was issued, granting a writ of possession and a money judgment of $10,011.89 to appellee. The judgment became dormant, and in 1991 appellee filed a petition for writ of scire facias to revive dormant judgment pursuant to OCGA § 9-12-61. Appellants responded to the petition, raising two defenses, and appellee moved for summary judgment. The motion was granted, and this appeal followed. Appellants contend that the court erred in granting the motion in their sole enumeration of error.

Appellants’ first defense to appellee’s petition was that appellee could not revive the judgment because appellee failed to record the judgment on the general execution docket and failed to make any efforts to collect the judgment. Neither action is a prerequisite to reviving a dormant judgment; thus, this defense fails. Malloy v. First Ga. Bank, 178 Ga. App. 797 (344 SE2d 679) (1986); Watkins v. C & S Nat. Bank, 163 Ga. App. 468 (1) (294 SE2d 703) (1982). Appellants next contend that the original judgment was invalid because it was for an amount greatly in excess of the amount asked for by appellee in its original dispossessory pleadings. “On the general principle of res judicata (which applies equally to proceedings by scire facias as to any other action or suit), and on the further ground that this method of reviving a judgment is merely a supplementary step in the original action, the [appellants are] absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and might have been presented in the former proceeding. In no case and under no circumstances can the merits of the original judgment be inquired into by the [appellants] on a writ to revive it. [Cits.] . . . The purpose of the Summary Judgment Act is to eliminate the necessity for trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. [Cits.] Such is the case here. The trial court did not err in granting summary judgment to [appellee].” Mitchell v. Chastain Finance Co., 141 Ga. App. 512, 515-516 (3) (233 SE2d 829) (1977).

Decided March 6, 1992.

Joseph J. Saia, for appellants.

Charles L. Jurjevich, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2038.
    WHITE et al. v. HUBBARD.
    (416 SE2d 568)
   Cooper, Judge.

This appeal arises from the denial of appellants’ motion for summary judgment on appellee’s claim for loss of consortium. Appellee seeks to recover from appellants, the owners and operators of a bar and restaurant, her husband’s medical expenses and her loss of consortium due to injuries sustained by her husband in an automobile accident after he had been drinking at appellants’ bar. In their motion for summary judgment, appellants contended that because an action against them, as providers of alcoholic beverages, brought by appellee’s husband would have been barred by Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985), appellee’s claim for loss of consortium, being derivative of his claim, must also be barred. We granted appellants’ application for interlocutory appeal to determine whether the trial court erred in denying the motion for summary judgment.

“Georgia law has long recognized the separate nature of the right of action for loss of consortium, such as brought by [appellee], and the right of action for personal injury. [Cits.]” Johnson v. Yeager, 188 Ga. App. 588, 590 (1) (373 SE2d 763) (1988). “A suit by a husband for personal injuries, and a suit by his wife for loss of consortium, are separate and distinct claims for relief. . . . [Cits.]” Rutland v. Fuels, Inc., 135 Ga. App. 143 (1) (217 SE2d 167) (1975). The Georgia Supreme Court, in Stapleton v. Palmore, 250 Ga. 259, 261 (297 SE2d 270) (1982), held that a separate suit for loss of consortium was not barred by an earlier verdict for the defendant on the issue of liability. However, recognizing the possibility of inconsistent verdicts in separate suits, the court also determined that a defendant may compel a husband and wife to consolidate their actions for personal injury and loss of consortium into one action. Although the court did not overrule the “separate claim” cases, its ruling demonstrated a recognition of the derivative nature of loss of consortium claims to personal injury claims of injured spouses. “[W]here the injured person and the spouse combine their separate claims in one suit,... it has been held that the loss of consortium claim is a ‘derivative’ claim and where one jury has heard the same evidence on the same issue it cannot render inconsistent verdicts as might two separate juries. [Cits.]” Stapleton, supra at 259. The fact that appellee’s husband did not file an action for personal injury does not render appellee’s claim for loss of consortium independent and not derivative. “The right of the wife is not absolute. . . . ‘ “One spouse’s right of action for the loss of the other’s society or consortium is a derivative one, stemming from the right of the other. . . . Since [appellants] are not liable for injuries to [appellee’s husband], they are not liable to [appellee] for loss of consortium attributable to those injuries.” ’ [Cit.] Here, the husband has no tort claim against [appellants] because [of the holding in Sutter], and his wife has no claim for loss of consortium, which is derivative from his right. Her property right could only vest if his cause of action be vested, which, of course, it is not.” (Indention omitted.) Henderson v. Hercules, Inc., 253 Ga. 685 (324 SE2d 453) (1985); Atlanta Braves, Inc. v. Leslie, 190 Ga. App. 49 (3) (378 SE2d 133) (1989).

Appellee does not dispute the holding in Sutter which bars her husband’s claim against appellants, but she contends that she is in the protected class of third persons injured as a result of appellants’ service of alcohol to a noticeably intoxicated person. See Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642 (362 SE2d 377) (1987). We disagree. Appellee’s status as the injured person’s wife is the basis of her claims for loss of consortium and her husband’s medical expenses. Her claim is derivative and can fare no better than her husband’s claims. Douberly v. Okefenokee &c. Corp. 146 Ga. App. 568 (3) (246 SE2d 708) (1978). Tibbs and Sutter refer to innocent persons, injured as a result of an intoxicated driver’s negligence and capable of maintaining an action against the driver for their injuries. Appellee is not so situated. Moreover, “to allow [appellee] to recover the various expenses which [she] incurred on [her husband’s] behalf as a result of the accident would undermine and circumvent the rule, announced by the Georgia Supreme Court in Sutter, [supra], that a provider of alcoholic beverages cannot be held liable to a consumer of alcoholic beverages for injuries sustained as a result of such consumption.” Burch v. Uokuni Intl., 192 Ga. App. 861, 862 (386 SE2d 889) (1989). Based on the foregoing, we conclude the trial court erred in denying summary judgment to appellants.

Decided March 6, 1992.

Swift-, Currie, McGhee & Hiers, Stephen L. Cotter, Robin L. Frazer, for appellants.

Webb, Kicklighter & Casey, Claude M. Kicklighter, Jr., for appellee.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2135.
    JOEL PROPERTIES, INC. v. REED et al.
    (416 SE2d 570)
   Andrews, Judge.

The application of Joel Properties, Inc., for interlocutory appeal was granted to consider whether Joel, the builder of the home in which Ms. Reed was injured in a fall, was improperly denied summary judgment.

Viewed in favor of the Reeds, opponents of summary judgment, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the evidence was that Joel Properties built and sold the home to Mr. and Ms. Finegan who moved into the home shortly before the holidays in 1987. The home received the required certificate of occupancy. The Reeds, who had known the Finegans for some years and had visited them previously in other homes, came from out of town for a visit on March 26, 1988. The Finegans picked the Reeds up at the airport and arrived at the Finegan home around midnight. The couples visited and Ms. Reed had a glass of wine. Ms. Reed was given a tour of the house. The house was a two-story home with two staircases joining the floors. There was a formal front-open staircase and a standard enclosed staircase at the other end of the house, i.e., the rear staircase. During her tour, Ms. Reed both ascended and descended the rear staircase, traversed the entire second floor hallway and was shown all the bedrooms on the second floor, including the one where she and Mr. Reed would sleep. The master bedroom and bath were on the first floor.

The two men retired, leaving Ms. Reed and Ms. Finegan talking in the kitchen. When Ms. Reed decided to retire, she went up the front staircase and was asked by Ms. Finegan to turn the upstairs hallway light off when she went up. Upon reaching the top of the stairway, Ms. Reed did so, leaving the hallway in darkness. The switch which she used was located by the front stairway. She then felt her way down the hallway in the dark, using the wall as a guide. She passed one doorway and, believing the next was her bedroom, turned into the opening and fell down the back stairway, suffering serious injury.

Suit was filed against both Joel Properties and the Finegans claiming negligence. Joel moved for summary judgment, contending that, as a matter of law, the stairway was not an inherent or dangerous condition or so negligently constructed as to be imminently dangerous to third parties, which must be shown in order to hold a builder-seller liable, absent a showing of fraud or deceit.

1. There is no dispute that the property at issue had been legally conveyed by Joel to the Finegans prior to the incident. The warranty deed was included in the record. Nor is there any dispute that Ms. Reed was fully aware of the rear staircase and had, in fact, traversed it on the evening in question. In response to the motion for summary judgment below, the Reeds contended that the construction of an open stairwell adjacent to a bedroom door constituted a “mantrap,” making summary judgment inappropriate. This contention was premised upon a claimed violation of the Georgia State Building Code, Section 1114.1.5 in that there was no landing on the stairway as required by that section for exit stairways.

The only reference to that Code in the record, however, is its quotation in the brief submitted by the Reeds in opposition to summary judgment. Such a quotation is not evidence, nor is such a rule or regulation a matter of which a court may take judicial notice, when properly requested to do so. OCGA § 24-1-4; Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 256 (5) (76 SE2d 536) (1953).

“Plaintiff contends that to build a residence hallway with adjacent doorways to a [bedroom] and a flight of steps is in the nature of a mantrap, and to so maintain it is ‘a dangerous act being done.’ Since stairways and bathrooms, as well as other rooms, customarily open onto hallways, and since we find no precedent for holding that such construction is negligent . . . [cits.] the defendant’s motion for summary judgment should have been sustained.” Goodwin v. Mullins, 122 Ga. App. 84, 85 (176 SE2d 551) (1970). Sosebee v. Hiott, 157 Ga. App. 768, 769 (278 SE2d 700) (1981); Sanford v. Howe, 129 Ga. App. 641 (200 SE2d 508) (1973).

Decided March 6, 1992.

Downey, Cleveland, Parker & Williams, Russell B. Davis, Rodney S. Shockley, for appellant.

Bentley, Karesh & Seacrest, Thomas S. Bentley, Karsten Bicknese, W. Clinton Rhodes, for appellees.

Even assuming that the stairway was somehow defective, a seller-builder of homes and other structures is not liable for damages resulting from negligent construction absent fraudulent concealment, not applicable here. Russell v. Cynwid Investments, 142 Ga. App. 410 (236 SE2d 147) (1977).

2. A second rationale also mandates summary judgment for Joel here. Ms. Reed knew of the alleged “mantrap” stairway and had successfully used it without succumbing to its dangers. See Francis v. Haygood Contracting, 199 Ga. App. 74, 75 (404 SE2d 136) (1991). Here, Ms. Reed, with full appreciation of the danger of feeling her way down a darkened hall and being familiar with the stairway into which she fell, nonetheless proceeded. She assumed the risk of such conduct. Moore v. Service Merchandise, 200 Ga. App. 463, 464 (408 SE2d 480) (1991). “ ‘this is a “plain, palpable, and indisputable” case not calling for resolution by a jury.’ ” Id.

Judgment reversed.

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


text:
    A91A2173.
    LATTIMORE v. THE STATE.
    (416 SE2d 829)
   Cooper, Judge.

Appellant was convicted by a jury of robbery by sudden snatching (OCGA § 16-8-40 (a) (3)) and obstruction of an officer (OCGA § 16-10-24 (b)). He appeals from the denial of his motion for new trial.

1. Appellant contends in his first enumeration of error that the guilty verdict was against the weight of the evidence. Viewing the evidence in a light most favorable to the verdict, the facts showed that two men entered a convenience store where Marilyn Hannah was working as a cashier. The men went to the back of the store to get some beer and then returned to the front of the store and went behind the counter. One of the men grabbed Hannah while the other man reached under the counter and took a bag of money. The police obtained a description of the men from Hannah and also retrieved and viewed a videotape from a camera which, on the night of the robbery, had been focused on the front door of the store. Several days after the robbery, one of the investigating officers approached a man resembling one of the men in the videotape. The man gave the officer a name and address which the officer suspected to be false. The officer did not arrest the man, but after viewing the videotape a second time, the officer became convinced that the man he stopped was one of the men who committed the robbery. At trial, that officer identified appellant as the man who gave the false name. Another officer involved in the case had known appellant for several years, and after looking at still pictures made from the videotape of the robbery, identified appellant as one of the suspects. While on patrol, the officer spotted appellant and told appellant that he was not under arrest, but that the officer had to take appellant downtown for questioning. When the officer began to frisk appellant, appellant struck the officer in the chest and violently resisted the officer’s attempt to subdue him. During a lineup conducted while appellant was in custody, Hannah positively identified appellant as one of the men who robbed the store, and Hannah also identified appellant at trial as a participant in the robbery. Appellant denied robbing the store or obstructing the officer. Appellant’s co-defendant, who pled guilty prior to the trial, testified that he did not know appellant. However, to rebut the co-defendant’s testimony, the State called a police officer who testified that following his arrest, the co-defendant gave a written statement in which he identified appellant as the other participant in the robbery.

Although appellant argues that the State’s witnesses were not credible, it is axiomatic that “ ‘[t]he weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight. . . .’ [Cits.]” Hudson v. State, 198 Ga. App. 360, 362 (1) (401 SE2d 571) (1991). We find that the evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of robbery and obstruction of an officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Singleton v. State, 194 Ga. App. 423 (3) (390 SE2d 648) (1990).

2. On cross-examination of one of the police officers, appellant’s counsel solicited from the officer that another officer had identified appellant as one of the men in the videotape. On redirect examination, the officer identified still photographs made from the videotape and testified that one was a photograph identified as appellant and the co-defendant. He also testified that another photograph was a photograph of appellant as he was returning from the back of the store. Appellant objected, contending that the witness was identifying the persons shown in the videotape. We disagree. The officer’s testimony on redirect connected the still photographs with the videotape, in which appellant had been identified by others who had viewed the tape. Hannah had previously testified that the person in the videotape was appellant. Furthermore, appellant’s counsel failed to object to the testimony of two other officers who both testified that one of the men shown in the videotape was appellant. Even if the admission of the officer’s testimony was error, it was harmless, in light of Hannah’s positive identification of appellant as the man who robbed the store. See Green v. State, 187 Ga. App. 373 (1) (370 SE2d 348) (1988).

3. In his third enumeration of error, appellant contends that it was error to allow the State to impeach the testimony of one of its witnesses. On cross-examination, appellant’s counsel extracted from Hannah that there were two video cameras in the store, the one retrieved by the police which pointed toward the front door and another which focused on the cash register. Appellant’s counsel attempted to leave the jury with the impression that the videotape from the camera focused on the cash register had been withheld by the police because it might exculpate appellant. The State called Bernice McFarlin, another employee of the store, who testified that the camera focused on the cash register was not in operation on the night of the robbery. We disagree with appellant’s characterization of this evidence as impeaching Hannah. The evidence merely added to Hannah’s testimony and was relevant in light of appellant’s cross-examination of Hannah. The trial court did not abuse its discretion in allowing the testimony. See Ingram v. State, 192 Ga. App. 196 (2) (384 SE2d 262) (1989).

4. Appellant also contends that it was error to allow the testimony of McFarlin because her name was not included on the State’s list of witnesses pursuant to OCGA § 17-7-110. OCGA § 17-7-110 provides that “[wjithout the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state in his place that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.” McFarlin testified as to the exact amount of money taken in the robbery and to the fact that the second video camera was not operating. The prosecutor stated in his place that he became aware of the video camera focused on the cash register the night before McFarlin was called to testify. The prosecutor also stated that he had no need to call McFarlin as a witness until appellant’s cross-examination of Hannah made it appear that another videotape of the robbery existed. The State complied with the exception in OCGA § 17-7-110 for newly discovered evidence and we find no error with the trial court’s admission of the testimony.

Decided March 6, 1992.

Nancy A. Atkinson, for appellant.

Willis B. Sparks III, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    A91A1939.
    ELIOPULOS et al. v. THE STATE.
    (416 SE2d 745)
   Beasley, Judge.

Following the denial of their amended motion for new trial, co-defendants Helen (Connie) Eliopulos and Twyla Sowers appeal their convictions for trafficking in cocaine by unlawfully and knowingly possessing 1,867 grams of 66 percent pure cocaine. OCGA § 16-13-31 (a) (1) and (a) (1) (C). The notice of appeal also mentions Sowers’ concurrent conviction for speeding, OCGA § 40-6-181, but no enumerations address it so it is not before us. Even when embraced in an enumeration of error, however, any challenge not pursued by argument or citation of authority is deemed abandoned. Court of Appeals Rule 15 (c) (2). Ramsey v. State, 183 Ga. App. 48, 51 (4) (357 SE2d 869) (1987).

The contraband was found during a search following the traffic stop for speeding. Sowers, Eliopulos, and Michael Millican were traveling in a rental car from Miami, Florida, back to their homes in Columbus, Ohio. Millican entered a negotiated plea prior to trial and testified as a State’s witness. Eliopulos and Sowers elected not to testify at trial and the defense rested following the State’s case.

Appellants challenge the court’s alleged refusal to disregard Millican’s trial testimony pursuant to OCGA § 24-9-85 (b) in considering the motion for new trial on evidentiary grounds. They also claim as error the trial court’s refusal to compel attendance of an out-of-state witness.

1. Appellants contend that they are entitled to a new trial because of newly discovered evidence that Millican’s trial testimony was perjured. See OCGA §§ 5-5-23; 16-10-70 (a). They maintain that such evidence, uncovered in a post-conviction investigation by new counsel and consisting of affidavits by Eliopulos and Sowers, by two brothers from Columbus claiming to be acquaintances of Millican’s, by two of Millican’s former cellmates, and by appellants’ trial counsel, established beyond any doubt that Millican had a history of involvement with the person who had arranged for the purchase of the drugs in Florida, that Millican was the moving force behind the purchase and transportation of the cocaine, and that every material element of Millican’s self-exculpatory testimony was false. They urge that Millican’s testimony must be rejected in its entirety, leaving no other evidence which could have supported their convictions.

To obtain a new trial because of newly discovered evidence, “a movant must satisfy the court ‘(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted.’ Humphrey v. State, 252 Ga. 525, 528 (314 SE2d 436) (1984).” Young v. State, 194 Ga. App. 335 (1) (390 SE2d 305) (1990).

Aside from any questions of the timing of appellants’ knowledge or of diligent acquisition, the affidavit evidence, if accepted, operates solely to impugn Millican’s credibility at trial. This is not enough in and of itself to warrant another trial. Id.

Furthermore, the degree of materiality of the evidence is such that it probably would not produce a different verdict. Id.

If the affidavit evidence shows without dispute that Millican’s trial testimony was perjured and should be wholly disregarded because uncorroborated by circumstances or other unimpeached evidence under OCGA § 24-9-85 (b), the remainder of the State’s evidence showed the following.

On January 15, 1990, at approximately 7:00 p.m., Millican’s roommate rented a car in Columbus. At the time of rental, the car’s mileage reading was 7,475. Later that evening, Eliopulos and Sowers, who were roommates, and Millican headed to Florida in the rented car. They arrived in Miami the following day, the 16th, and rented a motel room in the southwest part of the city at 6:49 p.m. They had with them written directions to that particular motel. The room was paid for in cash and Eliopulos registered for it under the fictitious name, “Coleen Eliozulous.” The signature spells the last name without the “i.” She also filled in a fictitious address in Columbus. The motel’s policy was to require guests paying in cash to pay up front an additional $10 refundable at check-out to cover the cost of any long-distance telephone calls charged to the room. Eliopulos paid the additional $10. At least one long distance telephone call, for 16 minutes beginning at 12:43 a.m., and costing $5.68, was made from the trio’s room. By noon on the 17th, the three had left the motel without checking out or obtaining the remainder of the refundable telephone deposit.

On January 17 at approximately 8:30 p.m., a Crisp County sheriff’s officer was patrolling Interstate 75 when he observed an automobile travelling northbound faster than the traffic flow in an area with a posted 65 mph limit. Radar clocked the vehicle at 77 mph. The officer pulled the vehicle over. The car’s mileage reading reflected that the car had traveled 1,839 miles.

Sowers was driving, Millican was in the front passenger seat and Eliopulos was in the back. Immediately, Sowers appeared to be nervous. She exhibited “a lot of fidgetiness” and was unable to readily produce her driver’s license. While writing the speeding citation, the officer asked for the vehicle registration and was told that the car was rented. After looking at the rental agreement, the officer discovered the recentness of the rental and that the renter was not in the vehicle. The officer asked Sowers about the shortness of the trip and she responded that they had been to Hollywood, Florida, to visit a sick relative of Eliopulos. When asked about the car’s occupants, Sowers told the officer she did not know “Mike’s” (Millican’s) last name.

The two women and Millican were standing beside the car. There was a considerable amount of talking and movement among the three. They paced up and down in a small area. They appeared to be “very jittery” and “real apprehensive,” their hands shaking and bodies trembling. It was the officer’s experience that such nervousness was uncommon for a routine traffic stop and citation for speeding but was the situation when narcotics were present

Because of the absence of the car’s renter, the shortness of the trip, and the unusual nervousness, the officer asked for permission to search the car. Both Sowers and Millican agreed to a search. Two small clothing bags were in the trunk. Upon removing the bags and lifting the spare tire cover, the officer observed a black briefcase on top of the spare tire. The officer asked the trio if the briefcase belonged to them and they all stated that it did not and denied having the combination to it. The officer asked the three if there were any objections to his opening the briefcase by whatever means and they all agreed for him to open it. After popping the lock with a screwdriver, the officer found two bags containing a white powdery substance, later identified as nearly two kilograms of cocaine.

Once in custody, Eliopulos told a GBI investigator that the trip had been to visit her sick aunt in Hollywood. She did not know the aunt’s address or telephone number. Eliopulos also related that she used to work for “organized crime” in Columbus. Sowers told the same investigator that the journey had been to visit Eliopulos’ sick aunt in Hollywood. She did not know the aunt’s name and she too was unable to provide the aunt’s location.

“ ‘The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.’ [Cits.] There is most assuredly a difference between actual and constructive possession even if the difference is only a matter of degree. [Cit.]” Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). The two types of possession “ ‘ “often so shade into one another that it is difficult to say where one ends and the other begins.” ’ ” Heath v. State, 186 Ga. App. 655, 657 (1) (368 SE2d 346) (1988), quoting with approval Neal v. State, 130 Ga. App. 708, 711 (2) (204 SE2d 451) (1974).

OCGA § 16-13-31 (a) (1), as amended effective March 28, 1988, authorizes conviction for trafficking in cocaine upon the showing of constructive possession as well as actual possession. See Edwards v. State, 194 Ga. App. 571, 572 (2) (391 SE2d 137) (1990), discussing the statutory change. The largely circumstantial evidence connected Eliopulos and Sowers to actual possession of the cocaine. Proof of actual possession may be by circumstantial evidence. Heath v. State, supra at 657 (1). The pair’s physical presence was not the sole circumstance linking them to actual possession; it was not “mere.” The uncontradicted evidence of the entire journey, the stop, and the search added additional inculpatory circumstances; the vehicle was rented to a third party; the long trip with a short turnaround; the three adults stayed together in a pre-determined lodging paid for in cash by one of them, Eliopulos; her falsification of the motel registration; the driving by another of them, Sowers; her unusual nervousness at the initial traffic stop; both women’s obvious apprehension as the stop and search unfolded; their vague accounts of visiting a sick relative with an unknown location in another Florida city; Sowers’ lack of knowledge of a two-night traveling companion’s last name.

The totality of the circumstances supports the finding that both Eliopulos and Sowers not only had knowledge of the drug transport but directly and actively participated in it. See Holder v. State, 194 Ga. App. 790, 792 (1) (391 SE2d 808) (1990), discussing the “actual active participation” in possession of the contraband required for “actual possession” in the context of former OCGA § 16-13-31. Moreover, convictions need not rest on showing the women’s direct commission of the crime or that either was the primary actor or “moving force,” as appellants name him, in order to obtain the convictions. It was sufficient to show that each was a party to the crime. See OCGA § 16-2-20 (b) (1); Heath v. State, supra at 657 (1).

Even without Millican’s trial testimony, a rational trier of fact would have been authorized to find Eliopulos and Sowers guilty of trafficking in cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the offered post-trial affidavits are not material for the purpose of a new trial analysis on the basis of newly discovered evidence. See Young v. State, supra. There was no abuse of the trial court’s discretion in denying appellants a new trial on that basis. See Wilson v. State, 193 Ga. App. 374, 375 (387 SE2d 642) (1989); Blankenship v. State, 162 Ga. App. 538, 539 (292 SE2d 123) (1982); Allanson v. State, 158 Ga. App. 77, 78 (1) (279 SE2d 316) (1981).

2. Appellants also contend the trial court erred in denying their pre-trial motion to compel the attendance of Millican’s out-of-state roommate, Meier, the renter of the car. They maintain that Meier represented their only chance to rebut and impeach Millican’s testimony in what they regard as the State’s weak case based completely on Millican’s testimony.

OCGA § 24-10-94 (a) et seq. provides the mechanism for compelling the trial attendance of an out-of-state witness. “The party requesting the presence of an out-of-state witness does not have an absolute right to obtain the witness sought under [The Uniform Act to Secure the Attendance of Witnesses From Without the State]. To this end, the statute requires the presentation of enough facts to enable both the court in the demanding state and the court in the state to which the requisition is directed to determine whether the witness should be compelled to travel to a trial in a foreign jurisdiction. OCGA §§ 24-10-92 (a) (b) [cit.], 24-10-94 (a) [cits.]. In order to do this, it must be shown that the witness sought is a necessary and material witness to the case, and the party desiring the witness must carry the burden of establishing those facts. [Cit.]” Chesser v. State, 168 Ga. App. 195, 196 (308 SE2d 589) (1983). The court’s decision about whether or not to utilize the Uniform Act’s provisions and compel the witness’ attendance is “purely discretionary.” Ealy v. State, 251 Ga. 426, 430 (4) (306 SE2d 275) (1983).

First, Eliopulos’ and Sowers’ factual showing fell short. The motion to compel offered as bases of need for Meier’s testimony that it was necessary to authenticate the rental agreement and that it would exculpate the two women by directly conflicting with Millican’s statements that they were parties to the trafficking. In support was submitted the affidavit of a defense team attorney who had had a telephone conversation with Meier.

There was no dispute about the fact of the rental and who the renter was as shown by the agreement itself and testimony from the arresting officer. It tended, moreover, to be inculpatory.

As to the other ground of need, the supporting affidavit did not show that Meier would dispute in any material way Millican’s version of events. It merely stated that Meier had related that he and Millican went together to rent the vehicle, that he had rented it at Millican’s request because Millican did not have a license, that he knew Millican had been arrested and was jailed but that he did not know the two women arrested with Millican. When informed by the attorney that the firm represented the two women, Meier would not discuss the case further. The materiality, if any, of the anticipated testimony was speculative at best.

Decided February 17, 1992

Reconsideration denied March 9, 1992

Doffermyre, Shields, Canfield & Knowles, Ralph I. Knowles, Jr., Leslie J. Bryan, for appellants.

John C. Pridgen, District Attorney, Kathryn 0. Fallin, Assistant District Attorney, for appellee.

Second, contrary to appellants’ assertion, Meier was not their only opportunity to rebut Millican’s version of events. They could have testified in rebuttal but chose not to do so, as was their right.

Lastly, even if Meier’s expected testimony would have rebutted Millican in the manner alleged or discredited his testimony in whole or in part, the remainder of the State’s evidence against the two women authorized convictions. Therefore, it cannot be said that Meier was a necessary and material witness. See Division 1, supra.

The trial court did not abuse its discretion in refusing to compel attendance of the out-of-state witness.

Judgments affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A1496.
    THE STATE v. ROCA.
    (416 SE2d 836)
   Andrews, Judge.

In its sole enumeration of error, the State claims that the trial court erred in dismissing its case based upon Roca’s plea of double jeopardy.

On November 5, 1989, Roca was arrested and charged with one count of simple battery and an accusation was filed against him on January 22, 1990. The case was called for trial on June 4, 1990, but the State was unable to go forward due to the failure of a witness to appear; no jury was impaneled and the State made a motion for a nolle prosequi. The court denied the motion and entered an order dismissing the case for want of prosecution.

Decided March 9, 1992.

The accusation was refiled on June 8, 1990 and Roca filed a plea of double jeopardy. On August 8, 1990, the State made a motion for a nolle prosequi in the case which was entered and filed on August 10, 1990.

A third accusation was filed against Roca on August 16, 1990 and on October 19, 1990, Roca again filed a plea of former jeopardy. A hearing on this plea was held on April 5, 1991 and the trial court ordered the case dismissed. The order stated that defendant’s motion to dismiss was granted, but did not specifically indicate whether such dismissal was with or without prejudice.

In this appeal, the State first contends that the trial court’s dismissal on June 4, 1990 for “want of prosecution” was without prejudice, should not have operated to bar reaccusation, and that Roca’s plea of double jeopardy based upon that dismissal was merit-less. We agree. See State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358) (1978); Burks v. State, 194 Ga. App. 809 (392 SE2d 300) (1990); OCGA § 16-1-8. Although a trial court is authorized to dismiss accusations and indictments, the June 4, 1990 dismissal was not a dismissal with prejudice and the State’s refiling of the accusation was appropriate. State v. Grimes, 194 Ga. App. 736 (392 SE2d 727) (1990); Callahan v. State, 179 Ga. App. 556 (1) (347 SE2d 269) (1986).

The State next argues that to the extent the trial court’s dismissal was based on OCGA § 17-7-53.1, it was erroneous. Again, we agree. The provisions of OCGA § 17-7-53.1 do not explicitly apply to accusations and we reject Roca’s argument that OCGA § 17-7-53.1 must apply to all criminal actions and defendants. Similarly, we reject Roca’s argument that the refusal to extend the terms of the statute creates an arbitrary class of defendants in violation of equal protection. Roca is not within the group of defendants who may claim the benefit of the statute. See generally Issacs v. State, 257 Ga. 798, 799 (364 SE2d 567) (1988).

The trial court was authorized to dismiss the accusation for want of prosecution, but such dismissal does not amount to a dismissal with prejudice, or an acquittal. Accordingly, the State could reaccuse the defendant within the applicable period of limitations. State v. Grimes, supra; compare State v. Fly, 193 Ga. App. 190 (2) (387 SE2d 347) (1989) (where issue had been joined, acquittal of defendant upheld).

Judgment reversed.

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

Gerald N. Blaney, Jr., Solicitor, William F. Bryant, Assistant Solicitor, for appellant.

Russell T. Bryant, for appellee.


author: Johnson, Judge.

text:
    A91A1889.
    GENINS v. CITY OF ATLANTA et al.
    (416 SE2d 838)
   Johnson, Judge.

The appellant petitioned the Fulton County Superior Court for certiorari to review a decision of the Municipal Court of the City of Atlanta, and the superior court dismissed the petition for the stated reason that the appellant had failed either to perfect personal service upon the respondent municipal court judge or to take steps to secure a timely answer from the judge. Approximately a month later, the appellant filed a renewal petition pursuant to OCGA § 9-2-61 (a), which provides, in pertinent part, that a plaintiff who discontinues or dismisses his case may recommence it “within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later. ...” However, the superior court dismissed this petition also, based on a determination that “the renewal statute does not apply to appeals and certiorari from lower courts and is a procedural device used only in trial courts of records (sic) where the Civil Practice Act applies.” The case is before us pursuant to our grant of the appellant’s application for a discretionary appeal from a subsequent order of the trial court refusing to set aside this dismissal.

The renewal statute, OCGA § 9-2-61, does apply to appeals by certiorari to superior court. In City of Atlanta v. Schaffer, 245 Ga. 164 (264 SE2d 6) (1980), the Georgia Supreme Court concluded that the involuntary dismissal of a certiorari petition based on the petitioner’s failure to procure a proper answer from the magistrate constituted a dismissal of the proceeding for failure to prosecute within the contemplation of former Code Ann. § 81A-141 (b) (now OCGA § 9-11-41 (b)). Because a dismissal for failure to prosecute was considered an adjudication on the merits under this Code section as it existed at that time, the court went on to hold that the dismissal barred the filing of a renewal action. However, OCGA § 9-11-41 (b) was subsequently amended by Ga. L. 1982, p. 784, to specify that a dismissal for failure to prosecute does not operate as an adjudication on the merits; and in Copeland v. White, 178 Ga. App. 644, 645 (344 SE2d 436) (1986), this court made it clear that under the amended statute, if a certiorari petition is involuntarily dismissed for failure to prosecute, it may be renewed within six months pursuant to OCGA § 9-2-61. Accordingly, we hold that the trial court erred in refusing to set aside its order dismissing the appellant’s renewal petition in the present case.

Decided March 9, 1992.

R. John Genins, pro se.

Raines F. Carter, Barbara A. Harris, for appellees.

Judgment reversed.

Carley, P. J., and Beasley, J., concur.