text:
    A94A1989.
    HOUSING AUTHORITY OF COLUMBUS v. JACKSON.
    (453 SE2d 60)
   Blackburn, Judge.

The appellant, the Housing Authority of Columbus, Georgia (the Housing Authority), brought the instant dispossessory action against appellee Shirlena Jackson based upon Jackson’s failure to pay rent for the month of February 1994. Within seven days after she was served with the summons pursuant to OCGA § 44-7-51, Jackson tendered to the Housing authority payment of all rents due plus the cost of the dispossessory proceeding, but the Housing Authority refused to accept the tender. The trial court denied the Housing Authority’s writ of possession, concluding that the tender was a complete defense to the action pursuant to OCGA § 44-7-52. This appeal followed.

In its sole enumeration of error, the Housing Authority asserts that the trial court erred in its interpretation of OCGA § 44-7-52. We agree and reverse the decision of the trial court.

OCGA § 44-7-52 provides that “[i]n an action for nonpayment of rent, the tenant shall be allowed to tender to the landlord, within seven days of the day the tenant was served with the summons pursuant to Code Section 44-7-51, all rents allegedly owed plus the cost of the dispossessory warrant. Such a tender shall be a complete defense to the action; provided, however, that a landlord is required to accept such a tender from any individual tenant after the issuance of a dispossessory summons only once in any 12 month period.” (Emphasis supplied.) On June 30, 1993, the Housing Authority had a dispossessory warrant issued against Jackson and sought possession of the apartment unit leased to her for her failure to pay rent for the month of June. Jackson tendered payment of rent and the cost of the proceeding before she was served with the summons in the action but after a summons had been issued. The tender was accepted by the Housing Authority. The fact that Jackson was not served in the prior proceeding before she tendered payment is not dispositive.

Under OCGA § 44-7-52, a landlord is only required to accept a tender of rent and cost once in a 12-month period after the issuance of a dispossessory summons. The present action involved the second dispossessory warrant issued within a 12-month period and the second tender of rent and cost after the issuance of a summons. Therefore, the Housing Authority was not required to accept Jackson’s tender of her February 1994, rent, and such tender was not a complete defense to this proceeding. Accordingly, the trial court erred in denying the Housing Authority’s writ of possession based upon Jackson’s tender of rent and cost in this action.

Judgment reversed.

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

Decided December 7, 1994

Reconsideration denied January 12, 1995

Page & Scrantom, James C. Clark, Jr., for appellant.

Kevin R. Palley, Kay Y. Young, Chandra L. Wilson, Paul E. Kauffmann, Lisa J. Krisher, for appellee.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A2428.
    JOHNSON v. BRUECKNER et al.
    (453 SE2d 76)
   Blackburn, Judge.

The appellant, Sara Johnson, filed the instant action for damages against the appellees, Dr. Lawrence T. Brueckner and Gwinnett Orthopedic Surgery, P. C. (hereinafter referred to as Gwinnett Orthopedic), alleging that Dr. Brueckner was negligent in performing surgery on her right wrist and negligent in failing to advise her of all of the risks involved with the surgery. Johnson did not file an expert affidavit contemporanously with the filing of the complaint as required under OCGA § 9-11-9.1, but attached to her complaint a medical record in which Dr. Brueckner acknowledged that he inadvertently severed the median nerve of her right hand during surgery. Johnson averred in her complaint that this statement was an admission of negligence and hence eliminated the need for compliance with OCGA § 9-11-9.1.

Dr. Brueckner and Gwinnett Orthopedic raised this lack of an expert’s affidavit as a defense in their answer, and thereafter, moved to dismiss the complaint, or in the alternative, for summary judgment in their favor, based upon Johnson’s failure to comply with the statute. Following a hearing, the trial court dismissed the complaint, concluding that the acts and omissions of negligence alleged therein required the exercise of some medical skill and judgment on the part of the physician, and therefore an expert affidavit was required. This appeal followed.

1. OCGA § 9-11-9.1 specifically requires the contemporaneous filing of an expert affidavit in any action for damages involving professional negligence. “The expert’s affidavit prerequisite servés a salutary purpose, which is to reduce the number of frivolous malpractice suits being filed. The plaintiff is simply required to show at the outset that it is not a frivolous suit. This serves to prevent putting a professional to great expense and adversely affecting his or her professional reputation unjustifiably. It also serves to prevent the clogging of the courts with such suits, which merely increase the costs of operating the courts and delay the resolution of meritorious suits. It simply contemplates that parties allegedly damaged by malpractice show up front, by expert’s affidavit, that they have some evidence of malpractice, which by its nature can be established only by professional or expert testimony.” (Citations and punctuation omitted.) Gillis v. Goodgame, 199 Ga. App. 413, 416-417 (404 SE2d 815) (1991), rev’d on other grounds, 262 Ga. 117 (414 SE2d 197) (1992).

While the medical records attached to the complaint demonstrate that Johnson’s claim is not frivolous and therefore satisfies the purpose for which the statute was enacted, that is, to eliminate the filing of frivolous actions challenging the reputation of professionals, “[w]e are without authority to say § 9-11-9.1 does not apply and the plaintiff shall not be required to file such an expert affidavit. ... If we were to say so, we would be repealing the act by violating its terms. We see no exception to it in this case, and no way to sustain the plaintiff’s action for professional malpractice without her having complied with the mandatory provisions of § 9-11-9.1.” Barr v. Johnson, 189 Ga. App. 136, 138 (375 SE2d 51) (1988).

Dr. Brueckner’s admission of inadvertence in the attached medical records does not excuse plaintiff’s failure to comply with OCGA § 9-11-9.1. While such an admission against interest is admissible as evidence and may be sufficient to present an issue of fact for jury resolution in response to a motion for summary judgment, see OCGA § 24-3-31; Bruce Tile Co. v. Copelan, 185 Ga. App. 469 (3) (364 SE2d 603) (1988), OCGA § 9-11-9.1 imposes an initial pleading requirement on a plaintiff which must be complied with prior to the consideration of any evidentiary matters on the merits of a professional negligence claim. Cf. Robinson v. Starr, 197 Ga. App. 440 (2) (398 SE2d 714) (1990). Our Supreme Court has recently held that uncertified medical records were sufficient to support plaintiff’s medical expert affidavit where the records in question were the defendant’s office records and defendant deposed that said records were accurate and were true copies of the originals. See Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994). In the subject case, the defendant also admitted the accuracy of the subject uncertified medical records in his verified answer. Here, unlike Paulin, however, there was no affidavit filed by plaintiff and the medical records standing alone are insufficient to meet the requirements of OCGA § 9-11-9.1.

“If the legislature sets forth a specific statutory means by which the plaintiff judicially enforces her cause of action, she must follow that law, or her action is subject to dismissal. OCGA § 9-11-41 (b).” Barr, supra at 137.

The mandatory language of the statute does not permit this court to ignore the affidavit requirement of OCGA § 9-11-9.1, even though justice may not be served and plaintiff will be denied her day in court, by our application of said statute in this case. We are not empowered to amend the lawful acts of the legislature. Perhaps the legislature should reconsider the appropriateness of OCGA § 9-11-9.1, in view of its effect on the function of the courts, which is to dispense justice, and the unquestioned ineffectiveness of the statute in reducing litigation. In excess of 100 cases involving OCGA § 9-11-9.1 have reached the appellate courts of Georgia since its inception in 1987.

Decided December 16, 1994

Reconsideration denied January 12, 1995.

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

Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, T. Andrew Graham, for appellees.

2. Johnson further argues that she was excused from filing an affidavit based upon the incorrect information provided to her by Dr. Brueckner on the risks involved with surgery. However, this issue was not raised below and hence, is not appropriate for appellate review. Holtapp v. City of Fayetteville, 208 Ga. App. 606 (431 SE2d 403) (1993).

Judgment affirmed.

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


text:
    A94A2454.
    CRAWFORD v. PRESBYTERIAN HOME, INC.
    (453 SE2d 480)
   Blackburn, Judge.

This is the second appearance of this case before this court. In Crawford v. Presbyterian Home, 211 Ga. App. XXIX (1994), not officially reported, we dismissed a direct appeal filed in the case as premature because a cross-claim remained pending in the trial court and neither the trial court’s judgment nor the order denying the motion for new trial contained the determination required under OCGA § 9-11-54 (b). The appellant, Dr. Donald L. Crawford, now appeals from the trial court’s final judgment entered on the jury’s verdict of $80,000 as direct and consequential damages and $10,000 in punitive damages after the court made a determination pursuant to OCGA § 9-11-54 (b) that there is no just reason for delay in the entry of final judgment.

The appellee, Presbyterian Home, Inc. (Presbyterian), the residual legatee of the estate of Roberta Jane Gibson, filed an initial action against Crawford individually and in his capacity as executor of the estate seeking an accounting of the estate’s assets. Thereafter, Presbyterian commenced an action against Crawford and Crawford’s attorney, William P. Johnson, for damages for their alleged depletion of the estate’s assets. Both actions were later consolidated. Three days prior to trial, a settlement agreement was reached between Johnson and Presbyterian, and the case proceeded to trial against Crawford.

1. Initially, Crawford maintains that the trial court erred in denying his motion for mistrial and motion for new trial after Presbyterian revealed the existence of Presbyterian’s $50,000 settlement with Johnson.

During cross-examination of Frank McElroy, President and CEO of Presbyterian, Crawford’s counsel questioned the witness on the names of the two defendants that Presbyterian filed actions against. On re-direct, Presbyterian’s counsel specifically asked McElroy “Did you receive word that Bill Johnson’s not here today because he gave back the $50,000?” McElroy responded, “Yes.”

Crawford cannot complain of an error he initially induced by questioning the witness concerning another defendant not involved in the present litigation. Cf. Lewis v. State, 186 Ga. App. 349 (6) (367 SE2d 123) (1988). In addition, the evidence of the settlement was subsequently admitted without objection during Johnson’s testimony on direct examination as a defense witness. The admission of evidence, even if erroneous, is not reversible error where substantially the same evidence is admitted without objection. Tahamtan v. Tahamtan, 204 Ga. App. 680, 682 (4) (420 SE2d 363) (1992). Accordingly, the trial court did not err in denying Crawford’s motion for a new trial on this ground.

2. Next, Crawford maintains that the trial court erred in failing to charge the jury to deduct the $50,000 settlement figure from the damages awarded as Presbyterian’s damages. However, Crawford did not request such a charge and did not object during the charge conference or after the court’s instruction to the jury on the trial court’s failure to so instruct the jury. Under OCGA § 5-5-24 (a), “no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Accordingly, Crawford has waived any challenge to the court’s failure to instruct the jury on this issue. See Hunter v. Batton, 160 Ga. App. 849 (1) (288 SE2d 244) (1982).

3. Crawford further argues that the trial court erred in granting Johnson’s motion to sever the trial of Crawford’s cross-claim for contribution. The claim was based upon Johnson’s representation of the decedent, the decedent’s mother, and Crawford as executor of the estates of the decedent and the decedent’s mother.

In granting the motion, the trial court found that the severance of the issues in the cross-claim from the trial on the main action served the convenience of justice and eliminated prejudice. “[Severance is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal.” (Citations and punctuation omitted.) Southern Guaranty Ins. Co. v. Nixon, 194 Ga. App. 398, 400 (1) (390 SE2d 638) (1990). See also OCGA § 9-11-42 (b). The trial court severed the claims based upon statutory grounds. Under the circumstances, we find no abuse of discretion. Nixon, supra.

4. Crawford also enumerates as error the trial court’s failure to mold the jury’s verdict by reducing the verdict by the $50,000 settlement figure. However, Crawford did not move the trial court to take this action until after the jury had been dispersed.

OCGA § 9-12-5 provides that, in a proper case, the superior court may mold the verdict so as to do justice. However, after the jury’s verdict has been received and recorded and the jury has been dispersed, a verdict may not be amended regarding a matter of substance such as an award of damages. Force v. McGeachy, 186 Ga. App. 781, 784 (368 SE2d 777) (1988). See also OCGA § 9-12-7. In the case at bar, the trial court did not err in failing to “mold” the jury’s verdict because such action exceeded the trial court’s authority. Force, supra.

5. Crawford additionally maintains that the damages awarded were so excessive that a new trial is warranted. We disagree. “On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. Since the verdict was within the range of damages established by the evidence, there was no error.” (Citations and punctuation omitted.) Evans v. Willis, 212 Ga. App. 335, 339 (5) (441 SE2d 770) (1994).

6. Lastly, Crawford maintains that the trial court erred in charging the jury that it could find him liable under a conspiracy theory and find both he and Johnson liable as joint tortfeasors when Johnson was no longer a party defendant. However, contrary to Crawford’s assertions, the charge in question is merely a summary of Presbyterian’s contentions. A trial court may state the contentions of the party and summarize the evidence in regard thereto. General Wholesale Co. v. Hertz Corp., 120 Ga. App. 319 (2) (170 SE2d 310) (1969).

Although Crawford maintains that the trial court’s statement of Presbyterian’s contentions was prejudicial because it included references to Johnson who was not involved in the present litigation, Crawford called Johnson as a witness in his defense of this action and questioned Johnson on the settlement. “One cannot complain of a result he procured or aided in causing and induced error is not an appropriate basis for claiming prejudice.” (Citation omitted.) Roswell Properties v. Salle, 208 Ga. App. 202, 205 (430 SE2d 404) (1993). In addition, the trial court did not err in charging the law on conspiracy since there was some evidence produced at trial on this issue. Oxford v. Upson County Hosp., 211 Ga. App. 59, 60 (438 SE2d 171) (1993).

Decided December 14, 1994

Reconsideration denied January 12, 1995

Van C. Wilks, for appellant.

Walter H. New, for appellee.

Judgment affirmed.

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


text:
    A94A2507.
    DEPARTMENT OF TRANSPORTATION v. BISHOP et al.
    (453 SE2d 478)
   Blackburn, Judge.

This is an appeal from the denial of the Georgia Department of Transportation’s (DOT) motion for summary judgment in a wrongful death action.

The appellees, Lynn Hill Bishop and Donnie Hill (the Hills), the surviving parents of Judith Hill, filed the instant action against the DOT pursuant to the Georgia Tort Claims Act. A DOT engineer approved the construction of a brick decorative wall on top of an existing concrete retaining wall at the intersection of State Route 20 and Horseleg Creek Road in Floyd County. On April 20, 1991, the brick wall allegedly obstructed the decedent’s vision and hearing when she proceeded into the intersection and her vehicle was struck by a police vehicle responding to an emergency call. The engineer was not named as a party to the action.

In its motion for summary judgment, DOT asserted that this action was barred by the licensing function or the discretionary function exceptions to the Georgia Tort Claims Act. In denying the motion, the trial court concluded that a jury question remained as to whether DOT acted in good faith in approving the construction of the brick wall, considering its violations of the federal and state standards on sight distances, and violations of the department’s regulations. The court further concluded that whether the engineer’s approval of the construction of the retaining wall involved a discretionary or ministerial function was a matter for jury resolution.

1. The Georgia Tort Claims Act became effective July 1, 1992, but applies retroactively to tort claims or causes of actions, such as the present action, which accrued on or after January 1, 1991. OCGA § 50-21-27 (a). See also Collier v. Whitworth, 205 Ga. App. 758 (423 SE2d 440) (1992). “[T]he Act provides for a waiver of the state’s sovereign immunity for torts of state officers and employees while acting within the scope of their official duties or employment, OCGA § 50-21-23 (a), unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24.” (Punctuation omitted.) Id. at 759. See also Howard v. Burch, 210 Ga. App. 515 (436 SE2d 573) (1993).

Decided December 13, 1994

Reconsideration denied January 12, 1995

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, for appellant.

Fuller & McKay, Kenneth C. Fuller, for appellees.

OCGA § 50-21-24 (9) specifically provides that the state shall have no liability for losses resulting from “ [licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization.” This statutory exclusion is not limited to those licensing functions deemed discretionary in nature in view of the entire legislative scheme of the Georgia Tort Claims Act, which contains a separate exclusion for discretionary functions. To so limit the application of this exclusion would render the entire provision meaningless, which is contrary to the general rules of statutory construction. Cf. Malloy v. State of New Jersey, 388 A2d 622 (N.J. 1978) (the New Jersey Supreme Court refused to limit its licensing exception to its Tort Claims Act and render the provision surplusage in view of a preceding section in the Act which immunized a public entity from liability for discretionary activities). “[A] statute shall be construed so as to give full force and effect to all of its provisions and so as to reconcile any apparent conflicts. [Cits.]” Head v. H. J. Russell Constr. Co., 152 Ga. App. 864, 865 (264 SE2d 313) (1980).

The state is only liable in tort actions within the limitations of the Georgia Tort Claims Act. OCGA § 50-21-21 (a). Since the Hills’ lawsuit arises from the state’s approval of a permit for the construction of the decorative wall, and this claim is specifically excluded by the Act, the DOT was entitled to summary judgment as a matter of law. See Collier, supra. Cf. Mosier v. State Bd. of Pardons & Paroles, 213 Ga. App. 545 (445 SE2d 535) (1994); Howard, supra.

2. The DOT’s remaining enumeration of error concerning the application of the discretionary function exception to the Tort Claims Act is rendered moot in light of our opinion in Division 1.

Judgment reversed.

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


text:
    A94A2571.
    OBONG et al. v. EKEREKE et al.
    (453 SE2d 84)
   Blackburn, Judge.

Appellants, Reverend Dr. Edet E. Obong and Enewan E. Obong, bring this appeal from the trial court’s confirmation of an arbitration award for appellees (Richard Johnson Ekereke and the Sanctified Mount Zion Church of Nigeria in the United States (church)) and denial of their objection thereto and demand for jury trial.

In the underlying action, Dr. Obong, naming himself and the church as plaintiffs, brought suit against Ekereke averring, among other things, that Ekereke had misappropriated church funds for personal use, misused church property, failed to meet church training and experience requisites to certification as an assembly minister, and continued to live in the United States after being denied a visa by the United States Immigration & Naturalization Service. The complaint sought to enjoin Ekereke from acting as a church pastor until he complied with corporate rules associated with certification as a minister; sought an accounting as to his expenditures of corporate funds; sought restitution, as appropriate; and such other relief as deemed necessary and just.

Subsequently, the church suspended Dr. Obong from his position as its missionary supervisor for filing the lawsuit and, in court, moved that it be dismissed as a plaintiff and permitted to intervene as a defendant on the ground that Dr. Obong had acted ultra vires in bringing the lawsuit. The trial court granted the motion on March 28, 1991. On January 25, 1993, the parties as realigned, presented a consent order which was approved by the trial court, in which they agreed to binding arbitration, without any specificity as to the procedure to be followed and without citing any authority which would govern the arbitration.

On January 27, 1993, the trial court executed an order wherein it held that “this case is hereby ordered for binding arbitration pursuant to Local Rule 1000 of the Fulton County Superior Court” (Emphasis supplied.) (FCSCLR 1000) The record does not reflect that the parties consented to the court’s order. Both of the orders were filed on January 28, 1993.

On April 30, 1993, the arbitrators returned a finding for Ekereke and the church in the amount of $15,000.

On May 28, 1993, Obong filed a document entitled “Objection to Award, and Demand for Jury Trial” with the Fulton County Court Administrator, Office of Civil Arbitration, pursuant to FCSCLR 1000 (16), stating therein, “Plaintiffs demand a jury trial.” Obong also filed a copy of said document with the Fulton County Superior Court. On June 9,1993, the trial court affirmed the award and same was filed on June 11, 1993. The trial court vacated its order on March 30, 1994, pursuant to Obong’s motion based upon said order being premature because of the pending motion and the finding that there had been no evidence presented to the arbitrators which would have allowed damages to have been awarded to appellees. The court then scheduled an evidentiary hearing on the remainder of Obong’s motion.

On April 25, 1994, at an unreported hearing, the trial court held that there had been sufficient evidence submitted to the arbitrators to support the award to appellees, and confirmed the award, said order being filed May 17, 1994. Obong timely filed a notice of appeal based upon his right to a jury trial pursuant to FCSCLR 1000 (16), or, in the alternative, the trial court’s failure to follow the procedural requirements of OCGA § 9-9-1 et seq., in otherwise ordering arbitration.

1. Inasmuch as the trial court’s order specifically states that arbitration was ordered pursuant to FCSCLR 1000, it is unnecessary to address the procedural requirements of arbitration pursuant to OCGA § 9-9-1 et seq.

2. While the court has authority to order arbitration pursuant to FCSCLR 1000, which it did, such arbitration is non-binding by its terms, FCSCLR 1000 (16), and the court is without authority to order binding arbitration thereunder absent specific agreement by the parties as to the conditions and rules of the arbitration process to be followed where such conflict with FCSCLR 1000. Under such circumstances, the procedural requirement of OCGA § 9-9-1 et seq., must be either complied with or waived by the parties.

Rule 1000 constitutes a compulsory, non-binding arbitration procedure. Davis v. Gaona, 260 Ga. 450, 451 (396 SE2d 218) (1990). Paragraph 16 thereof provides parties ordered to such arbitration the right to a jury trial upon timely demand after entry of the arbitration award. Id. at 453-454. Binding arbitration, on the other hand, is exclusively a creature of the Georgia Arbitration Code (Code), OCGA §§ 9-9-1 and 9-9-2 (c), in which the right to jury trial is waived by the parties at the outset — this in consequence of the written arbitration agreement between them. Id.; Davis, supra at 452. (OCGA §§ 9-11-38 and 9-11-39 (a) have been “interpreted to mean that a jury trial may only be waived by specific stipulation of the parties and no demand for a jury trial is necessary. See, e.g., Raintree Farms v. Stripping Center, 166 Ga. App. 848 (305 SE2d 660) (1983).”) Moreovér, we note that while binding arbitration is exclusively a creature of the Code, the parties to binding arbitration nonetheless have the latitude to appoint arbitrators by such method as they may provide in their agreements to arbitrate. OCGA § 9-9-7 (a).

Judgment reversed.

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

Decided December 19, 1994

Reconsideration denied January 12, 1995

J. L. Jordan & Associates, J. L. Jordan, for appellants.

Deborah L. Green, for appellees.


text:
    A94A2617.
    CONTRACT SALES & SERVICE INTERNATIONAL, INC. v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
    (453 SE2d 62)
   Blackburn, Judge.

This is an appeal from the trial court’s grant of summary judgment in favor of American Express Travel Related Services Company, Inc. (American Express) in an action based upon a commercial account for the purchase of goods.

The record viewed in the light most favorable to the appellant, Contract Sales & Service International, Inc. (Contract Sales), as the nonmovant, shows that Contract Sales is in the business of assisting large corporations with the liquidation of overstocked inventory. In June 1991, American Express made arrangements with Contract Sales for the liquidation of thousands of “weekender” suede jackets. It is undisputed that in June and July 1991, American Express shipped in excess of 10,000 “weekender” suede jackets to Contract Sales for their liquidation. It is further undisputed that Contract Sales has sold all of the jackets shipped to them and retained in their accounts the $241,765 in proceeds from the sale of the merchandise.

Under Georgia’s Uniform Commercial Code, “ ‘[t]he buyer must pay at the contract price for any goods accepted.’ OCGA § 11-2-607 (1). The buyer is entitled to accept or reject goods which fail to conform to the contract by rejecting or accepting the whole, or by accepting any commercial unit or units . . . and rejecting the rest. OCGA § 11-2-601. Acceptance occurs when, after a reasonable opportunity to inspect the goods, the buyer indicates the goods are conforming or that he will take them despite the nonconformity, or the buyer acts in a manner inconsistent with the seller’s ownership. OCGA § 11-2-606.” Prudential Metal Supply Corp. v. Atlantic Freight Sales Co., 204 Ga. App. 439, 440 (419 SE2d 520) (1992).

In this case, the undisputed evidence shows that Contract Sales accepted the shipments of jackets delivered to the company on behalf of American Express, and subsequently sold the jackets to other companies. Contract Sales’ sale of the jackets received is an act inconsistent with American Express’ ownership. Cf. W. M. Hobbs, Ltd. v. Accusystems of Ga., 177 Ga. App. 432 (1) (339 SE2d 646) (1986).

Decided December 7, 1994

Reconsideration denied January 12, 1995.

Alembik, Fine & Callner, T. Kevin Mooney, for appellant.

Siegel & Golder, Mark L. Golder, for appellee.

Bert Gurwitch, President and CEO of Contract Sales, deposed that Contract Sales does not owe American Express any of the money for the jackets because American Express allegedly breached an agreement with Contract Sales to liquidate $12,000,000 in inventory in the future, and breached the present agreement by competing with Contract Sales in selling items to other companies. The record does not show that American Express agreed to refrain from selling inventory to other companies. In addition, any of the parties’ negotiations concerning future liquidation of inventory are too indefinite for enforcement and at most, represents an unenforceable agreement to agree. See Cherokee Falls Investments v. Smith, 213 Ga. App. 603 (1) (445 SE2d 572) (1994).

Contract Sales further contends that it is entitled to retain the sums collected because most of the jackets shipped were of inferior quality which required them to expend additional monies for their liquidation. However, Contract Sales never rejected any of the shipments of jackets. It is well settled that acceptance precludes rejection of the goods accepted. Amatulli Imports v. House of Persia, 191 Ga. App. 827 (383 SE2d 192) (1989). More importantly, Contract Sales failed to specifically raise any alleged failure of consideration as an affirmative defense in its answer. The defense cannot be raised in an affidavit or deposition in opposition to a motion for summary judgment. See Dromedary, Inc. v. Restaurant Equip. Mfg. Co., 153 Ga. App. 103 (264 SE2d 571) (1980). Therefore, Contract Sales is responsible for the payment of the jackets that it received from American Express as a matter of law, and summary adjudication in favor of American Express was warranted.

Contrary to Contract Sales’ contention, American Express is entitled to prejudgment interest. “Prejudgment interest is allowable only where the amount recoverable is liquidated, i.e., certain and fixed, a sum which cannot be changed by the proof. A debt is liquidated when it is certain how much is due and when it is due. . . . The invoices covered by summary judgment were a due and payable liquidated debt on a commercial account, subject to prejudgment interest under OCGA § 7-4-16.” (Citations and punctuation omitted.) Dalcor Mgmt. v. Sewer Rooter, 205 Ga. App. 681, 682-683 (423 SE2d 419) (1992).

Judgment affirmed.

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


text:
    A94A2831.
    DEVORE & JOHNSON, INC. v. BOWEN & WATSON, INC. et al.
    (453 SE2d 67)
   Blackburn, Judge.

This is an appeal from the trial court’s grant of the motion for summary judgment filed by appellees Bowen & Watson, Inc. and Employers Insurance of Wausau, and denial of the motion for summary judgment filed by appellant Devore & Johnson, Inc. (Johnson), in an action to recover on three separate payment bonds.

Bowen & Watson, Inc. was the general contractor for the construction of Simpson Elementary School, Habersham Central High School, and Georgia Industrial Institution. As a prerequisite to the acceptance of the contracts for the construction of these projects, Bowen & Watson, Inc. obtained payment bonds with Employers Insurance of Wausau as surety pursuant to OCGA § 13-10-1. Phillip Cody, Sr., d/b/a Cody Mechanical Company (Cody) was hired by Bowen & Watson, Inc. as a subcontractor, and Johnson supplied electrical and plumbing supplies to Cody which were used in connection with those projects. Cody subsequently failed to pay Johnson for materials furnished on the projects.

On February 24, 1993, when Bowen & Watson, Inc. contacted Johnson concerning invoices that Cody had prematurely submitted to the company for payment, Johnson informed Watson that Cody had not been current in making payments on past invoices. Bowen & Watson, Inc. then requested a list of unpaid invoices for other projects due from Cody. Johnson sent a letter dated March 16,1993, to Bowen & Watson, Inc. advising the company of the remaining past due balances owed by Cody, and requested a meeting in reference to the balances due. This letter was sent to Bowen & Watson, Inc. by certified mail.

In addition to listing the past due amounts on the projects for which Cody was furnished materials, Johnson stated in the letter that “[w]e have worked closely with Phillip Cody in an effort to bring these accounts to a current basis. We regret the necessity of informing Bowen & Watson Construction Company but obviously, the size of the account has a definite affect on our own financial structure. The situation has become progressively worse in recent months. We would like very much to meet with both you and Phillip in an effort to reach a satisfactory solution.” Two months later, Cody filed a Chapter 7 bankruptcy petition.

1. “OCGA § 36-82-104 (b) provides that a materialman such as appellant may bring an action to enforce a payment bond if he has not been paid. The statute further provides that if no contractual relationship exists between the materialman and the general contractor, the materialman shall have this right upon giving written notice to the contractor within 90 days from the day on which such person did or performed the last of the labor or furnished the last of the material or machinery or equipment for which such claim is made.” (Punctuation omitted.) Denny & Assoc. v. Southern Aggregates Co., 184 Ga. App. 832 (363 SE2d 50) (1987). The statute is remedial in nature and therefore should be liberally construed to accomplish that objective. Huddleston Concrete Co. v. Safeco Ins. Co. of America, 186 Ga. App. 531 (1) (368 SE2d 117) (1988).

“The giving of the written notice specified by the statute is a condition precedent to the right of a supplier to sue on the payment bond; the writing must be sent or presented to the prime contractor by or on the authority of the supplier; and the writing must inform the prime contractor, expressly or by implication, that the supplier is looking to the contractor for payment of the subcontractor’s bill.” (Punctuation omitted.) Amcon, Inc. v. Southern Pipe &c. Co., 134 Ga. App. 655, 657 (215 SE2d 712) (1975), quoting Bowden v. United States, 239 F2d 572, 577 (1) (9th Cir. 1956). OCGA § 36-82-100 et seq. is derived from the federal Miller Act, 40 USC § 270a et seq., and decisions interpreting the Miller Act have been recognized by Georgia courts as persuasive authority. TDS Constr. v. Burke Co., 206 Ga. App. 223 (1) (425 SE2d 359) (1992).

In United States v. Freethy, 469 F2d 1348 (9th Cir. 1972), the Court found that two letters sent to the prime contractor satisfied the notice requirements under the Miller Act and sufficiently informed the prime contractor that the supplier was looking to him for payment. The initial letter informed the prime contractor of the current balance which was subject to adjustments. In closing, the supplier stated that he would appreciate any help that the prime contractor could provide in bringing the account up to date. The Court found important the fact that the initial letter included computations of the outstanding amounts and that the follow-up letter included a detailed statement of the adjustments. Considering the facts presented in the case at bar, we find the Freethy decision persuasive.

The notice sent to Bowen & Watson, Inc. included the name of the party to whom the materials were furnished and computations of the outstanding balances on several projects. Although the letter did not specifically indicate that it was sent for the purpose of providing Bowen & Watson, Inc. with notice pursuant to the statute, such indications could be found to be implicit in the letter and therefore in compliance with OCGA § 36-82-104. The fact that the letter was sent certified mail is some indication that Johnson intended same to be notice pursuant to the statute. “[Although the tenor of the [letter] could have been more explicit, we believe that [it] w[as] clearly designed to and did inform the prime contractor that his supplier was looking to him for payment of the subcontractor’s bill.” (Punctuation omitted.) Amcon, Inc., supra at 657, quoting Freethy, supra at 1351. Accordingly, the trial court erred in granting Bowen & Watson, Inc. and Employers Insurance of Wausau’s cross-motion for summary judgment and denying Johnson’s motion for summary judgment as to the issue of notice.

Decided December 13, 1994

Reconsideration denied January 12, 1995

Fortson, Bentley & Griffin, Ernest De Pascale, Jr., Roy E. Manoll III, for appellant.

James E. Cornwell, Jr., for appellees.

2. Johnson further asserts that the trial court erred in considering Bowen & Watson, Inc. and Employers Insurance of Wausau’s cross-motion for summary judgment which was filed 33 days prior to the entry of the court’s order on the motions. However, in Rasmussen v. Nodvin, 174 Ga. App. 203 (329 SE2d 541) (1985), this court upheld the trial court’s grant of a cross-motion for summary judgment filed one day before the hearing where the issue of the two motions were the same. The court noted that care should be taken that the party against whom summary judgment is rendered has had a full and fair opportunity to show that there is no genuine issue of material fact to be tried and that the party is entitled to summary judgment as a matter of law. Id. In the present case, the issues addressed in both motions for summary judgment are the same, that is, whether Johnson complied with the statutory prerequisite for recovery on the payment bonds. Johnson has had a fair opportunity to respond on this issue.

3. Johnson also contends that the trial court erred in failing to consider its supplemental affidavit filed on July 15, 1994, fourteen days after the July 1, 1994 motion hearing, and two days after the expiration of the extended time period provided by the trial court for its filing. Under OCGA § 9-11-56 (c), a party opposing a motion may serve opposing affidavits prior to the day of hearing on the motion. “The court is vested with discretion as to whether to consider affidavits untimely served. [Cits.]” Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 64-65 (397 SE2d 576) (1990). We cannot say that the trial court abused its discretion in failing to consider Johnson’s untimely filed affidavit.

Judgment reversed.

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


author: Smith, Judge.

text:
    A94A2447.
    THE STATE v. BAKER et al.
    (453 SE2d 115)
   Smith, Judge.

Mark and Matthew Baker were indicted on charges of bribery, possession of cocaine with intent to distribute, conspiracy to traffic in cocaine, and contributing to the delinquency of a minor. The State appeals from the trial court’s grant of the Bakers’s motions to suppress evidence.

The record reflects that Patrolman Edward Diaz had been working with the Lowndes/Valdosta/Brooks County Drug Squad by providing manufactured information to the Bakers regarding the activities of the drug squad in return for money. On February 17, 1994, Special Agent Terry Griffin of the drug squad executed an affidavit for a search warrant for the Bakers’ home. In the affidavit, he stated he had received information in the past 24 hours that a quantity of cocaine would be delivered to the Bakers at their home the next day by Patrolman Diaz. The warrant was issued.

The next day, under direction of the drug squad, Diaz telephoned the Baker home and spoke with Mark Baker. He told Baker he was in possession of crack cocaine that he had recovered from a fleeing suspect, inquired whether the Bakers wanted the contraband, and stated he would bring it to their home later that day. When Diaz arrived at the Baker home with cocaine, he offered it to Matthew Baker, who accepted. Diaz, who was “wired,” then gave the signal to the monitoring Drug Squad officers that the transaction had been completed by asking to use the rest room.

The officers then entered the Baker home. They found the cocaine Diaz had given the Bakers on the kitchen floor at Matthew Baker’s feet. Additional cocaine was found by Diaz in the Bakers’s bathroom.

The Bakers sought suppression of the cocaine on the grounds that the search warrant was illegally issued for various specific reasons. The orders granting the motions recite that the motions were granted “for the reasons stated by the court on the record at the hearing on said motions.” At the hearing, appellees’ contentions were twofold: that the warrant was invalid because at the time it was issued no probable cause existed to believe that there were drugs in the Baker home; and that the officers themselves “set up” the situation and placed the drugs in the house.

The trial court agreed with the State that the warrant was valid, stating that “anticipatory” search warrants themselves are not per se illegal. This was correct. See Danford v. State, 133 Ga. App. 890 (212 SE2d 501) (1975). Nevertheless, the trial court granted the motion to suppress on the ground that the police conduct amounted to entrapment. The State contends the trial court improperly considered the issue of entrapment at the hearing on the motion to suppress. We agree and reverse.

Decided January 12, 1995.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellant.

George M. Saliba II, for appellees.

First, a motion to suppress must be in writing and must state facts supporting the allegations of illegality. See OCGA § 17-5-30 (b). The motion filed by the Bakers did not allege entrapment.

Second, a motion to suppress challenges the admission of evidence obtained illegally. In contrast, entrapment is not a rationale for suppressing evidence but an affirmative defense to a criminal prosecution. OCGA § 16-3-25. Although a directed verdict may sometimes be granted on the issue of entrapment under appropriate circumstances, Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991), generally, when the defense is raised it becomes an issue of fact for resolution by the jury. Hattaway v. State, 185 Ga. App. 607, 608 (365 SE2d 480) (1988); Tolbert v. State, 138 Ga. App. 724, 726 (1) (227 SE2d 416) (1976).

We intimate no opinion on the merits of the defense. If at trial the Bakers introduce evidence of entrapment, the State must rebut that evidence or risk the grant of a directed verdict of acquittal. Hill, supra; Wilkey v. State, 203 Ga. App. 1, 3 (416 SE2d 350) (1992). A ruling on the defense of entrapment, however, was premature at the hearing on the motion to suppress.

Judgment reversed.

McMurray, P. J., and Pope, P. J., concur.


text:
    A95A0337.
    In the Interest of D. S., a child.
    (453 SE2d 114)
   Blackburn, Judge.

The juvenile court adjudicated D. S. delinquent for possession of cocaine with the intent to distribute. On appeal, D. S. contends that the evidence was insufficient to support a finding of intent to distribute.

Brunswick Police Officer Hughes testified that he observed D. S. come off the porch of Christine Green’s house and run across the street to a blue car. D. S. put his right hand inside the passenger-side window of the car. Officer Hughes came within eight to ten feet of D. S., who was startled and snatched his hand from the car. Within Officer Hughes’ view, D. S. dropped something from his right hand. Officer Hughes obtained the plastic bag dropped by D. S., which contained three $10 pieces of crack cocaine. Officer Hughes testified that it “appeared to be a drug transaction” taking place. However, Officer Hughes did not see any money change hands or any drugs change hands. The occupants of the vehicle were not stopped or questioned.

Decided January 12, 1995.

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Margaret L. Knight, Assistant District Attorney, for appellee.

This court has previously determined that “knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman’s knowledge and experience.” Davis v. State, 200 Ga. App. 44, 46 (406 SE2d 555) (1991). See also Davis v. State, 209 Ga. App. 572 (2) (434 SE2d 132) (1993). Officer Hughes testified that based on his experience and special training in drugs, D. S. was either giving or receiving drugs from the vehicle. The State produced no evidence of D. S.’ intent to distribute. In fact, the only testimony involving the quantity of cocaine established that if D. S. was a user of cocaine, he could smoke all three of the cocaine pieces.

“To support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession. [Cit.]” Sams v. State, 197 Ga. App. 201, 202 (397 SE2d 751) (1990). Viewed under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we conclude that the State failed to present evidence sufficient to authorize the trier of fact to find, beyond a reasonable doubt, that D. S. committed an act which, had it been committed by an adult, would constitute the offense of possession of cocaine with intent to distribute. Compare Palmer v. State, 210 Ga. App. 717 (437 SE2d 490) (1993).

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A94A2166.
    COLE v. THE STATE.
    (453 SE2d 495)
   McMurray, Presiding Judge.

Defendant was charged via indictment with one count of robbery by sudden snatching and one count of aggravated assault. The evidence adduced at his jury trial showed that the victim was accosted at night in a supermarket parking lot. The robber “approached [the victim] at the back of [her] car and said give me that pocket book. [The victim] said, no.” The robber “reached around [her] and [the victim] put it between [herself] and the car and . . . wrapped it around [her] two fingers. . . . [She] was holding on with all [her] might and he kept pulling until he drug me down on the ground.” The robber kicked her in the ribs. Then the “rings came loose [from the purse] and he started to run.” As the robber fled with the purse, the victim saw that he had on dark trousers and a dark printed shirt. “He was small built, not real big, [and] was slim built.” About that time, as Christopher Lee Gordon was driving towards the shopping center that night, Mr. Gordon saw a man “running towards a car that was parked on the side of the building. ...” The runner “was close to six foot tall, about the same build as [Mr. Gordon], about near 170 pounds. And, he had some dark colored pants on and he had like a black T-shirt with a print across it. ...” The runner “got in the passenger side of the car and then the car sped off around the back.” Mr. Gordon memorized the tag number of this car and gave a description of the runner to Detective Timothy Ferguson of the Lake City Police Department. Detective Ferguson created a photographic lineup of “known acquaintances of [the owner of the vehicle], . . . from which Mr. Gordon identified [defendant].”

The jury returned guilty verdicts as to each count. At sentencing, the aggravated assault charge, “Count II [was] [m]erged by [the] Court with Count I,” the robbery by sudden snatching. This appeal followed the denial of defendant’s motion for trial. Held'.

1. Defendant first enumerates the admission into evidence of the circumstances of his 1983 guilty plea to robbery from Illinois, arguing that the prior offense “was not similar nor admissible for a proper purpose.”

At the hearing mandated by Uniform Superior Court Rule 31.3 (B), the State introduced the victim of the prior robbery, Mr. Hollis Henderson. Mr. Henderson was about to enter his delivery truck when defendant approached him and asked for some potato chips. Mr. Henderson replied that he had none. Defendant walked away, only to return moments later and demand Mr. Henderson’s money pouch at gunpoint. “[H]e had the pistol there and said he’d blow my brains out if I didn’t give him the money.” Mr. Henderson complied and defendant fled. Defendant subsequently pled guilty to a charge of “Robbery ... [as a] lesser included offense.”

The State argued that, “but for one having a gun and the other one not having a gun, [the 1983 Illinois armed robbery is] identical . . .’’to the (unarmed) robbery by sudden snatching and assault with intent to rob alleged in the case sub judice. As evidence of defendant’s modus operandi, the State relied on the following similarities: The attacks occurred after dark in a parking lot near a business; the victims were individuals and not groups; the attacker used superior force, namely a gun against a man and his own force against a woman; the attacker made a verbal demand for the item first, followed by a threat of force if the victim does not comply; the attacker fled after obtaining the item; in “each case he ran behind [a] building . . . to a waiting car . . . [;]” and both victims were standing by their vehicles which “prevented their escape route[.]” The trial court determined that this evidence was admissible as tending “to show the identity, the course of conduct, and bent of mind of this defendant in this case.”

“Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct. In order for [any] independent acts to be admissible it must be shown that the defendant was the perpetrator of the independent crime and that there is sufficient similarity of the former independent crime that it tends to prove the latter crime. Dudley v. State, 179 Ga. App. 252 (4) (345 SE2d 888) (1986).” Weathersby v. State, 262 Ga. 126, 127 (2) (414 SE2d 200). “While Uniform Superior Court Rule 31.3 speaks of ‘similar’ transactions, the issue of admissibility of extrinsic transactions has never been one of ‘mere similarity.’ Williams v. State, 251 Ga. 749, 784 (312 SE2d 40) (1983). It is, rather, ‘relevance to the issues in the trial of the case.’ [Cit.]” Brockman v. State, 263 Ga. 637, 639 (3), 640 (436 SE2d 316).

In the case sub judice, the trial court’s reasoning that defendant’s prior guilty plea was admissible to prove the identity of the perpetrator was erroneous. “ ‘[A] much greater degree of similarity between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove a state of mind.’ ” Strong, McCormick on Evidence, p. 808, § 190 (9), fn. 45 (4th ed. 1992). “Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies, or rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.” Strong, McCormick on Evidence, pp. 801-803, § 190 (3), supra. Defendant’s sole prior act of armed robbery was not “ ‘so nearly identical in method so as to earmark [both the prior act and this offense] as the handiwork of the accused.’ [Cit.]” Felker v. State, 252 Ga. 351, 359 (1) (a), 360 (314 SE2d 621). Nor is it “in the nature of a signature and thus is some evidence of the identity of the perpetrator. . . .” Shaw v. State, 211 Ga. App. 647 (1), 648 (440 SE2d 245). Nevertheless, defendant’s prior guilty plea to robbery was substantially relevant for the appropriate limited purpose of showing his specific intent to rob, in aggravation of the alleged assault. Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148). Consequently, the trial court did not err in admitting the similar transaction evidence for the proper purpose of showing intent through course of conduct. Jones v. State, 158 Ga. App. 585 (2) (281 SE2d 329).

2. In related enumerations, defendant contends the trial court erred in denying his motion for new trial on the general grounds. He argues that the undisputed evidence of force employed to obtain the victim’s purse amounts to a fatal variance and precludes his conviction for robbery by snatching.

Decided December 29, 1994

Reconsideration denied January 13, 1995

Richard D. Hobbs, for appellant.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

“ ‘Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. . . .’” Denson v. State, 212 Ga. App. 883 (2), 884 (443 SE2d 300). “ ‘Under DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), and Dobbs v. State, 235 Ga. 800 (3) (221 SE2d 576) (1976), “(n)ot every variance in proof from that alleged in the indictment is fatal.” Givens v. State, 149 Ga. App. 83, 86 (253 SE2d 447) (1979). The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. DePalma, supra. Unless the variance subjects defendant to one of these dangers it is not fatal. (Glass v. State, 199 Ga. App. 530, 531 (1) (405 SE2d 522) (1991).)’ ” Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303).

In the case sub judice, the evidence adduced at trial shows robbery by sudden snatching (see King v. State, 214 Ga. App. 311 (1) (447 SE2d 645)) even though the victim resisted and defendant employed violence. Compare Brown v. State, 214 Ga. App. 733 (1) (449 SE2d 136). Any variance between the allegata and the probata was immaterial in this instance. Defendant “was sufficiently informed of the charges against him so that he could prepare a defense. Moreover, there was no danger that [defendant] would be prosecuted again for the same offense. For these reasons, we conclude there was no fatal variance. Glass [v. State], 199 Ga. App. at 531-532[, supra].” Battles v. State, 262 Ga. 415, 417 (5), supra. The evidence was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of robbery by sudden snatching in violation of OCGA § 16-8-40 (a) (3), as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); King v. State, 214 Ga. App. 311 (1), supra.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A2068.
    MOORE v. WINN-DIXIE STORES, INC.
    (454 SE2d 532)
   Birdsong, Presiding Judge.

Johnnie Ruth Moore appeals the order of the superior court granting summary judgment on behalf of defendant, Winn-Dixie Stores, Inc., in a slip and fall suit. Held,-.

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. Appellant Moore asserts that she slipped and fell on water and strawberries on appellee Winn-Dixie’s floor, and that a Winn-Dixie employee was in the immediate vicinity when she fell. There exists no evidence of actual knowledge on the part of appellee as to the presence of any foreign substance on its floor; appellant, however, asserts appellee had constructive knowledge of the foreign substance and failed to take prompt and proper corrective action.

(a) It is uncontroverted that appellee’s produce department manager inspected the aisle and floor area where appellant fell approximately five to ten minutes prior to the incident; the floor was clean, dry, and free of any foreign substance at that time. Appellant, however, contends that a jury issue is created merely because an employee pushed a cart filled with unwrapped produce down the aisle where appellant fell only one or two minutes before the incident. “ ‘(A)n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’ ” Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594); accord Green v. Sams, 209 Ga. App. 491, 498 (1) (433 SE2d 678). Further, “[i]t is well settled that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous. [Cits.] Where it appears a foreign object had ‘not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.’ ” Mazur v. Food Giant, 183 Ga. App. 453 (359 SE2d 178); accord Foodmax v. Terry, 210 Ga. App. 511, 512 (436 SE2d 725). There exists no evidence showing that the appellee’s premises, including the area in and adjacent to the produce department, are unusually dangerous. Accordingly, there is no actionable negligence in this case, and the trial court did not err in granting summary judgment on behalf of appellee/defendant. Id. The cases cited by appellant are factually distinguished from this case and are not controlling.

(b) Appellant testified that she was shopping and looking around, picking up groceries, and the next thing she knew she fell; when she fell she was getting potatoes and was “just looking at the potatoes” and putting them in the buggy. Compare the facts of Chaves v. Kroger, 213 Ga. App. 348 (444 SE2d 606) (full court) with the facts of Moore v. Winn-Dixie Stores, 214 Ga. App. 157 (447 SE2d 122). Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) is distinguishable factually and not controlling. However, in view of our holding in Division 2 (a), we need not determine whether under the circumstances here presented, appellant failed to exercise ordinary care for her own safety.

Decided January 13, 1995.

Louis K. Polonsky, for appellant.

Fain, Major & Wiley, Gene A. Major, Darryl G. Haynes, for appellee.

Judgment affirmed.

Ruffin, J., concurs. Blackburn, J., concurs in judgment only.


text:
    A94A2093.
    NEWMAN v. THE STATE.
    (453 SE2d 117)
   McMurray, Presiding Judge.

Defendant was indicted for burglary, theft by receiving stolen property, and possession of a firearm by a convicted felon. The evidence adduced at a jury trial showed the following: Near midnight on December 22, 1992, uniformed officers of the City of Morrow Police Department responded to a burglar alarm at a Midas Muffler shop on Jonesboro Road. A panel of the garage door had been kicked in and a muddy footprint of wet red clay was found inside. Tire marks of wet clay led off the premises and headed north. Some 300 feet from the Midas shop, police observed a 1979 Datsun parked near a pay telephone. The hood of this car was still warm and the tires were covered with red clay mud. Inside the car on the front seat were boxes marked “Muffler Parts.” No one was in the car, but defendant stumbled out from a gully below the parking lot, noticeably intoxicated. His sneakers were covered with red clay mud, and the pattern of the sole resembled that left on the kicked-in panel of the Midas garage door. “He said the vehicle was not his,” but belonged to his girl friend. Defendant was arrested on suspicion of burglary. The police “[attempted to contact the person that [defendant] told [them] owned the car [but . . .] could not make contact with that person to come get the vehicle and it was impounded at that time.” An inventory search of the vehicle revealed a Taurus .38 revolver stowed underneath “the front driver’s [side] area of the vehicle. ...” Donna Thomas testified for defendant that the gun was hers; that she put it up under the seat of the car; and that defendant never acknowledged “that he knew the gun was there ...” when he was in possession of the car. Other evidence showed that the vehicle was insured under Ms. Thomas’ name.

At the close of the State’s evidence, the trial court directed a verdict of acquittal as to the charge of theft by receiving stolen property, because the boxes marked “Muffler Parts” seen in the vehicle were not shown to be stolen. The jury acquitted defendant of burglary but found him guilty of the possession of a firearm by a convicted felon offense. His motion for new trial was denied and defendant appeals from the judgment of conviction for possession of a firearm by a convicted felon. Held:

1. In his fourth enumeration, defendant contends the trial court erred in denying his “Motion to Suppress the pistol” found under the driver’s seat, arguing that impoundment of the vehicle was not reasonably necessary and so was unauthorized.

“ ‘Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976).’ Whisnant v. State, 185 Ga. App. 51, 53 (363 SE2d 341) (1987).” State v. Crank, 212 Ga. App. 246, 250 (441 SE2d 531). The State’s right to impound may be justified out of necessity “where an unsuccessful attempt was made to locate the owner to obtain dispositional instructions ([cit.]).” State v. Ludvicek, 147 Ga. App. 784, 786 (250 SE2d 503). In the case sub judice, the police had probable cause to arrest defendant on suspicion of burglary. See Watson v. State, 159 Ga. App. 618 (1), 620 (284 SE2d 636). Thereafter, the police could not contact the person defendant identified to them to come and get the car. When their efforts proved fruitless, it was then perfectly reasonable for the police to impound this vehicle in order to protect property. The trial court did not err in denying defendant’s “Motion to Suppress the pistol” on this ground. Compare State v. Darabaris, 159 Ga. App. 121 (282 SE2d 744).

2. Over defendant’s hearsay objection, the trial court permitted a police officer to relate the contents of a computer search of ownership records, showing that “the vehicle was registered to [defendant].” This evidentiary ruling is defendant’s third enumeration of error. However, at the time of his arrest defendant had stated that the “vehicle was not his”; and that his girl friend owned the vehicle. Under these circumstances, hearsay relating the contents of public records would be admissible for the limited purpose of impeaching these assertions. Gee v. State, 210 Ga. App. 60, 61 (2) (435 SE2d 275).

3. In his first and second enumerations, defendant challenges the sufficiency of the evidence. He argues that the direct evidence of Donna Thomas that she put the gun in the car is evidence of equal access, demanding a directed verdict of acquittal.

Decided January 13, 1995.

Steven L. Harris, for appellant.

Robert E. Keller, District Attorney, M. Tom Woodward, Assistant District Attorney, for appellee.

“ ‘The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had been recently used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle. . . .’” (Emphasis in original.) Pittman v. State, 208 Ga. App. 211, 213 (2), 214 (430 SE2d 141). In the case sub judice, Ms. Thomas testified that it was her habit to keep the gun in the car, and place it on the seat when she was in the car or place it under the seat when she was not in the car. She would take it with her if she switched cars, but “[s]ometimes, [she] forgot.” However, her testimony is not evidence that another person was at the scene exercising actual possession over contraband. Compare Battle v. State, 160 Ga. App. 111 (1) (286 SE2d 341). See also Hughes v. State, 215 Ga. App. 6, 7 (1), 8 (449 SE2d 547). Moreover, Ms. Thomas’ testimony that she put the gun in the car (at some unknown time) is entirely consistent with defendant’s admission that he knew Ms. Thomas had a gun and was aware that she kept it with her in the car over the course of their five-year relationship. Accordingly, his possession of the vehicle is not the sole evidence that he intentionally possessed the gun. “ ‘Whether the evidence of equal access is sufficient to rebut any inference of possession . . . is a question properly left to the jury.’ . . . Davis v. State, 194 Ga. App. 482, 486 (4) (391 SE2d 124) (1990); see also Chambers v. State, 162 Ga. App. 722 (1) (293 SE2d 20) (1982); Moore v. State, 155 Ga. App. 149 (1) (270 SE2d 339) (1980).” Cannon v. State, 211 Ga. App. 835, 836 (440 SE2d 723). The evidence adduced at trial is sufficient to authorize the jury’s verdict that defendant was guilty, beyond a reasonable doubt, of possession of a firearm by a convicted felon as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Cannon v. State, 211 Ga. App. 835, 837, supra. Consequently, the trial court did not err in denying defendant’s motion for directed verdict. Humphrey v. State, 252 Ga. 525, 526 (1) (314 SE2d 436).

Judgment affirmed.

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


author: Birdsong, Presiding Judge. Ruffin, Judge,

text:
    A94A2160.
    OLIVER v. THE STATE.
    (453 SE2d 746)
   Birdsong, Presiding Judge.

Bruce Oliver appealed to the Georgia Supreme Court the trial court’s order denying his plea of double jeopardy, asserting the appeal involved a constitutional question; the Supreme Court transferred the case to this court. Appellant asserts the trial court erred in denying his double jeopardy plea.

Accusations were filed against appellant for three counts of misdemeanor offenses of abusive telephone calls to certain victims and their families. Appellant filed two pretrial motions in limine which the State elected not to oppose. One of these motions was to suppress all evidence of obscene phone calls and also to prohibit adults from testifying as to what children told them had been said on the phone. It appears that during the hearing on these motions the State represented that apparently no one could remember or was available to testify to any obscene phone calls, and therefore the State had no objection to the motions in limine. Both motions were granted. Trial commenced and based on the pretrial position taken by the State, appellant’s counsel made an opening statement in which she informed the jury that appellant “is charged with making harassing phone calls to three different households . . . and those are hang up calls, except for one call, which is an innocuous call and not obscene, not argumentative or anything like that. All the other calls were hang up calls.” During the course of trial the State learned that one child was now willing to testify to an unrecorded phone call and commenced to lay the foundation for the introduction of such evidence. Appellant’s counsel interposed a timely objection to the State’s conduct. Appellant’s counsel affirmatively stated on the record how appellant’s case would be prejudiced as counsel had relied on both the prior statements of the State and the prior rulings on the motion in limine, and had commenced the defense’s whole trial strategy in one particular way. Thereafter the following colloquy occurred: “THE COURT: Well, I am a little troubled switching over in the middle of the stream because I understood earlier that the case was going to involve hang up phone calls and we had the records for those. Do you insist on using this witness? [SOLICITOR]: Yes, sir. I think so. [DEFENSE]: We would be vehemently opposed. We may have to move for a mistrial if they insist on using that. As I said again, the obscene phone calls are not relevant. It’s something used solely to inflame the jury because this is not a charge of obscene phone calls. This is a charge of harassing phone calls. THE COURT: I would be inclined to grant your motion for a mistrial because I do remember your opening statement telling them that it was hang up phone calls and for them to use something else would be, I would think, highly prejudicial. ... By the same token, I’m not going to tell [defense counsel] that we’re not going to use certain evidence and then let it get in after she’s committed one way. . . . [SOLICITOR]: Can we have about ten or fifteen minutes? THE COURT: We’ll take ten minutes. (Whereupon, a break was had.) . . . THE COURT: I believe [the solicitor’s] position is going to be that he’s going to insist on presenting the evidence and I indicated that if that’s in or going to get in, then I’ll grant your motion for mistrial. [DEFENSE]: Well, let me talk to my client to make sure that’s what he wants to do. . . . Your Honor, if the State does attempt to use that, we would move for a mistrial on that. So, I don’t know if you want to proceed to the point of the State doing that or do you want to go ahead and rule right now? THE COURT: My understanding is your intentions are to use it? [SOLICITOR]: At this time, we definitely intend to because we can definitely tie at least one of the children to a traced number and I believe two children we can trace to the same traced number through the use of the same fictitious names. [DEFENSE]: And, Your Honor ... I did file the two motions in limine . . . there was an agreement that those be granted. . . . THE COURT: I’ll grant your motion for mistrial. Are you making a motion for mistrial? [DEFENSE]: Yes, sir. I am making a motion for mistrial. THE COURT: Your motion for mistrial is granted. We’ve excused all the jurors for this term. The next term will be in June. . . . [The jury returned to the courtroom.] . . . Ladies and Gentlemen . . . there’s been a motion made for a mistrial . . . and I’m going to grant [the] motion for mistrial, which really means that we can’t go forward with the case today. It will be tried in June, our next term. . . . You six jurors will not be deciding this case. You will not come back in June.” (Emphasis supplied.) The hearing concluded without further comment by appellant’s counsel. Held:

“Jeopardy attached in this case. Once the jury has been impaneled and sworn, jeopardy attaches. [Cit.] ‘Retrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the ends of public justice be defeated; the existence of manifest necessity is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.’ ” Dotson v. State, 213 Ga. App. 7, 8 (1) (443 SE2d 650). In this case, appellant moved for mistrial; the record affirmatively establishes that, as the State intended to introduce the testimony of at least one child which it had not known was available when it elected not to oppose appellant’s pretrial motion in limine, manifest necessity existed within the meaning of Dotson, supra, for the granting of appellant’s pretrial motion. The trial court did not abuse its discretion in granting appellant’s mistrial motion.

Appellant, however, asserts retrial is barred by double jeopardy as the State’s conduct amounted to prosecutorial overreaching, motivated by bad faith on the part of the prosecuting attorney with the intent to prejudice appellant. “If a defendant moves for a mistrial and the motion is granted, normally he may be tried again. [Cits.] However, there exists a ‘narrow exception’ to the rule that double jeopardy will not bar retrial in such instances. Oregon v. Kennedy, 456 U. S. 667, 673 (102 SC 2083, 72 LE2d 416). Thus, if a mistrial is granted on the grounds of prosecutorial overreaching and such was motivated by bad faith on the part of the prosecuting attorney or with the intention to harass or prejudice the defendant, for example, by successive prosecutions or by declaration of a mistrial in order to afford the prosecution with a more favorable opportunity to convict, then a defendant’s retrial is barred. [Cits.] Under this exception, it is ‘(o)nly where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.’ ” State v. Maddox, 185 Ga. App. 674, 675 (365 SE2d 516). The record and transcript do not affirmatively establish that the conduct of the State was motivated either by bad faith or with an intent to harass or prejudice appellant’s right to fair trial; rather, it appears that due to unanticipated circumstances relevant testimony became available to the State and it elected to try to introduce it in evidence. Even so, the State did not recklessly proceed to introduce such evidence before the jury but afforded appellant an opportunity to object to the evidence and to seek mistrial or curative action, as deemed appropriate. Neither does the record reflect that this was a situation where the State fearing ultimate acquittal of appellant chose to engage in trial tactics primarily to obtain a more favorable opportunity to convict. The transcript reveals the State did not initially “feel that it would be in the best interest of the children to put them through that on the stand. But, now, [the State believes] one of the children wants to testify.” The State further clarified the situation as follows: “I talked to the mother during the break today. She called me and said that she had gone by the school and talked with her daughter just to be sure how she felt about this.” Thus, rather than showing bad faith or evil intent, the transcript reflects the State was faced with an unexpected situation where the parent of the child had ascertained on the day of trial that her daughter now wanted to testify. While we do not encourage the State’s conduct and find there often exists a thin line between legitimate prosecutorial tactics and prosecutorial overreaching, we do not conclude that the State’s conduct warrants an expansion of the “narrow exception” which would bar retrial. “ ‘Mistrial’ is a proper remedy to use to negate the potentially prejudicial effect of such evidence when a curative instruction will not suffice. We see no need to add gratuitously the extreme sanction of double jeopardy in the absence of genuine prosecutorial overreaching or similar judicial conduct.” Id. at 676.

Judgment affirmed.

Blackburn, J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

While I agree that the judgment below should be affirmed, I write separately because the record demonstrates there was no prosecutorial misconduct in the presence of the jury; therefore, there was no manifest necessity for the declaration of a mistrial. Appellant’s retrial is not barred because the requirement that there be intentional prosecutorial misconduct “intended to subvert the protections afforded by the Double Jeopardy Clause” was not met. See Williams v. State, 258 Ga. 305, 312 (1) (A) (369 SE2d 232) (1988). Moreover, the termination of the trial resulted from appellant’s premature mistrial motion. “[S]elf-induced error is not grounds for reversal. [Cit.]” Sullens v. State, 239 Ga. 766, 767 (2) (238 SE2d 864) (1977).

The trial court is authorized to declare a mistrial when prejudicial conduct on the part of counsel in the presence of the jury “makes it impossible to proceed with the trial without injustice to the defendant.” OCGA §§ 16-1-8 (e) (2) (B); 17-8-75. In the instant case, the trial court granted appellant’s motion for a mistrial upon a finding of prosecutorial overreaching based on the prosecutor’s stated intention to subsequently introduce the testimony of a child regarding an allegedly obscene telephone call contrary to a pre-trial order on a motion in limine. However, there was no actual mention of the child or the obscene phone call in the presence of the jury, nor did the prosecutor say anything else before the jury immediately prior to appellant’s objection which could be construed as prejudicial. The record further shows that appellant stated his objection after the court excused the jury from the courtroom. As a result, the entire discussion regarding the admission of the testimony, in which the prosecutor stated his intention to introduce the testimony, occurred outside the presence of the jury. Thus, appellant’s motion for a mistrial and the court’s grant of the motion were premature, having occurred before the mention of obscene phone calls before the jury.

I also do not agree that the prosecutor’s mere expression of his intention to subsequently introduce such evidence, in and of itself, was prejudicial. “It is the trial court and not counsel who is given responsibility and power by law to exercise discretion in the admission of evidence and the control of the trial proceedings and of the parties before it. [Cits.]” Garcia v. State, 207 Ga. App. 653, 658 (2c) (428 SE2d 666) (1993). Rather than inviting appellant to move for a mistrial when the prosecutor announced his intention to introduce the testimony, the court should have responded by determining whether the testimony should have been excluded pursuant to the order on the motion in limine.

Decided January 13, 1995.

Amy A. Petulla, for appellant.

Clements & Clements, Patrick R. Clements, for appellee.


text:
    A95A0225, A95A0339.
    MITCHELL v. KENYA et al.; and vice versa.
    (452 SE2d 799)
   McMurray, Presiding Judge.

Mildred Mitchell asserted claims against Bandilai-Nahi Kenya and Bedford Residential Management, Inc., d/b/a Windy Hill Village (“Bedford”) for malicious arrest and negligent hiring and retention and later filed a motion for summary judgment as to both of these claims. Bedford filed a motion for summary judgment as to Mitchell’s claim for negligent hiring and retention. After a hearing, the trial court denied Mitchell’s motion for summary judgment and granted partial summary judgment in favor of Bedford as to Mitchell’s claim for negligent hiring and retention. Mitchell then filed a notice of appeal and therein designated that she is appealing “from an Order . . . involving the denial of [her] Motion for Summary Judgment.” Kenya and Bedford filed (in the trial court) a motion to dismiss the notice of appeal, claiming that Mitchell’s failure to pay costs within the time prescribed by OCGA § 5-6-48 (c) caused an unreasonable and inexcusable delay in transmission of the record to the Court of Appeals. See Leonard v. Ognio, 201 Ga. App. 260, 261 (410 SE2d 814). The trial court denied this motion and Kenya and Bedford filed a notice of appeal. The appeal filed by Bedford and Kenya was docketed in the Court of Appeals as Case No. A95A0339. Mitchell’s appeal was docketed as Case No. A95A0225. We now consider both appeals. Held:

Case No. A95A0225

1. Mitchell filed an enumeration of error and brief challenging the denial of summary judgment as to her claim for malicious arrest. Kenya and Bedford responded by filing a motion to dismiss, arguing that this direct appeal must be dismissed because it is from the denial of summary judgment and is therefore reviewable only via the interlocutory appeal procedure of OCGA § 5-6-34 (b). Mitchell then filed another enumeration of error, contending the trial court erred in denying her motion for summary judgment and granting partial summary judgment in favor of Bedford. Kenya and Bedford filed a motion to dismiss this supplemental enumeration of error, arguing that it was filed outside the period prescribed by Court of Appeals Rule 27 (a) (now Rule 22 (a), effective January 1, 1995) for filing enumerations of error.

Although the denial of summary judgment must be appealed in accordance with the interlocutory appeal provisions of OCGA § 5-6-34 (b) , such an interlocutory ruling can be appealed without application when it is tied to the appeal of a directly appealable order or judgment. Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199). In the case sub judice, Mitchell did not designate in her notice of appeal that she is appealing from a directly appealable ruling. She designated that her appeal is from the denial of summary judgment and clarified in her first enumeration of error and brief that her sole contention relates to the denial of summary judgment as to her claim for malicious arrest. The denial of summary judgment as to this cause of action is entirely interlocutory (as it leaves Mitchell’s claim for malicious arrest in the trial court for adjudication) and may therefore only be challenged in isolation of a directly appealable order via the interlocutory appeal procedure of OCGA § 5-6-34 (b). See Lumbermen’s Underwriting Alliance v. Atlantic Wood Indus., 207 Ga. App. 392 (427 SE2d 861). Compare Martin v. Williams, 263 Ga. 707, 708 (2), 710 (438 SE2d 353); and Southeast Ceramics v. Klem, 246 Ga. 294 (1), supra. However, Mitchell attempts to expand the scope of this appeal by filing a supplemental enumeration of error challenging the directly appealable ruling on Bedford’s motion for summary judgment. See OCGA § 9-11-56 (h). Unfortunately, we may not consider this supplemental enumeration of error as it was filed outside the 20-day period prescribed by Court of Appeals Rule 27 (a) (now Rule 22 (a), effective January 1, 1995) for filing enumerations of error.

“[U]nder controlling Supreme Court authority, [such a supplemental enumeration of error] ‘came too late and [is] a nullity.’ Foskey v. Kirkland, 221 Ga. 773-774 (1) (147 SE2d 310) (1966). See also Arkwright v. State, 223 Ga. 768, 769 (158 SE2d 370) (1967).” Vick v. State, 205 Ga. App. 600, 601 (2) (423 SE2d 46). Consequently, since the sole issue in the case sub judice is Mitchell’s challenge to a ruling on a substantive claim which remains pending in the trial court and since Mitchell failed to comply with the interlocutory appeal procedure of OCGA § 5-6-34 (b), we have no authority to consider this direct appeal. See Lumbermen’s Underwriting Alliance v. Atlantic Wood Indus., 207 Ga. App. 392, supra.

Kenya’s and Bedford’s motion to dismiss this appeal is hereby granted. So is their motion to dismiss Mitchell’s supplemental enumeration of error.

Decided January 13, 1995.

Robert A. Maxwell, for appellant.

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, John C. Bonnie, for appellees.

2. Kenya and Bedford have also filed a separate motion to dismiss this appeal based on Mitchell’s alleged unreasonable and inexcusable delay in transmission of the record to the Court of Appeals. However, our rulings in Division 1 of this opinion render it unnecessary to address this motion to dismiss.

Case No. A95A0339

3. Our holding in Case No. A95A0225 renders the appeal in Case No. A95A0339 moot, and consequently that appeal is dismissed. Bice v. State, 212 Ga. App. 184, 185 (2) (441 SE2d 507).

Appeals dismissed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0594.
    STRACHAN v. MERITOR MORTGAGE CORPORATION EAST.
    (453 SE2d 119)
    Decided January 13, 1995.
    Joyce S. Strachan, pro se.

      Richard H. Johnston & Associates, Gregory M. Brown, for appellee.
   McMurray, Presiding Judge.

This direct appeal followed a de novo ruling by the State Court of Fulton County from a decision of the magistrate court on a dispossessory petition. Appeals from such decisions must be made via the discretionary application procedure of OCGA § 5-6-35 (b). OCGA § 5-6-35 (a) (11); Handler v. Hulsey, 199 Ga. App. 751 (406 SE2d 225). Consequently, this direct appeal must be dismissed for failure to follow this procedure.

Appeal dismissed.

Andrews and Blackburn, JJ., concur.


author: Andrews, Judge. Johnson, Judge,

text:
    A94A1606.
    BRADFORD v. XEROX CORPORATION.
    (453 SE2d 98)
   Andrews, Judge.

Allen Bradford was allegedly injured when a van driven by Gary McCormick collided with Bradford’s truck. Bradford filed this action against the Xerox Corporation alleging McCormick was acting within the scope of his employment with Xerox when the accident occurred. Xerox moved for partial summary judgment on Bradford’s claim for punitive damages, arguing there was no showing of wilful or wanton misconduct. Bradford appeals from the superior court’s grant of Xerox’s motion.

In his sole enumeration of error, Bradford contends the superior court erred in granting Xerox’s motion for partial summary judgment as to punitive damages because genuine issues of material fact exist as to whether McCormick’s conduct was wilful, wanton, or demonstrated an entire want of care. We find this enumeration of error without merit.

“Punitive damages may be recovered when it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. OCGA § 51-12-5.1 (b).” (Punctuation omitted.) Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 828 (2) (435 SE2d 54) (1993). Here, the evidence, viewed with all inferences in favor of Bradford, was insufficient to impose punitive damages on Xerox Corporation as a result of the actions of its driver McCormick under the “clear and convincing evidence” standard of OCGA § 51-12-5.1 (b). See Coker v. Culter, 208 Ga. App. 651 (431 SE2d 443) (1993); compare Harrison v. S & B Trucking, 179 Ga. App. 291, 292 (1) (346 SE2d 101) (1986) (decided prior to the July 1, 1987 effective date of OCGA § 51-12-5.1).

The evidence is that McCormick was speeding while on his way to report to his job post. The road was wet and the van he was driving crossed the highway median and struck Bradford’s vehicle. There was no evidence of any history of improper driving by McCormick on the job. There was no indication that Xerox had any reason to question McCormick’s driving ability. There was no indication that McCormick had consumed any alcoholic beverages during the previous 24 hours nor was there any evidence of a DUI history. McCormick had no medical problems which would cause blackouts nor was he consuming any medication or other drugs on the day of the accident.

As stated in Currie v. Haney, 183 Ga. App. 506 (359 SE2d 350) (1987), “the fact that appellee’s car may have crossed the centerline and struck [the victim’s] vehicle would not, in the absence of aggravating circumstances, authorize [the victims] to recover punitive damages. Compare Moore v. Thompson, 255 Ga. 236, 237 (336 SE2d 749) (1985), wherein the Supreme Court held that ‘[ejvidence that the defendant’s driving under the influence of alcohol caused the plaintiff’s injuries is evidence of wilful misconduct, wantonness, and that entire want of care which raises the presumption of conscious indifference to the consequences.’ ” Currie, supra at 506 (pre-1987 enactment of the clear and convincing evidence standard of OCGA § 51-12-5.1). See also Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804 (4) (418 SE2d 604) (1992) (corporate officer’s driving under the influence did not provide basis for recovery of punitive damages against the corporation, but did allow recovery against the individual officer).

We are also guided in our resolution of this case by Coker v. Culter, supra. There, the grant of partial summary judgment to the defendant on the issue of punitive damages was affirmed by this court. In Coker, the defendant “admitted going 40 mph in a 35 mph zone; water was standing on the road; visibility was poor; his car hydroplaned and crossed over the centerline; two passengers in the car were drinking but [defendant], who had drunk beer some time before the accident tested one hour after the accident at .03 percent grams blood alcohol content. Drug paraphernalia was found in the back of [his] car, though he claimed he knew nothing about it. He admitted he may have been driving a little too fast for conditions. After the collision, [defendant] jumped out of the car and stomped and slammed the front end of his car while cursing; [plaintiff], who was pregnant, screamed she was in labor.” Id. at 651-652.

Similarly, in Cullen v. Novak, 201 Ga. App. 459 (411 SE2d 331) (1991), even though there was evidence that Cullen carelessly ran a red light, “[t]here was, however, no evidence of such an entire want of care and conscious indifference to the consequences sufficient to authorize an award of punitive damages. [Cits.]” Cullen, supra at 460 (2). Compare J. B. Hunt Transport v. Bentley, 207 Ga. App. 250 (427 SE2d 499) (1992).

Accordingly, the court properly granted the motion for partial summary judgment as to the punitive damages.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Blackburn, and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Johnson and Ruffin, JJ., dissent.

Johnson, Judge,

dissenting.

I believe the trial court erred in granting Xerox’s motion for partial summary judgment as to punitive damages and respectfully dissent.

“Punitive damages may be recovered when it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. OCGA § 51-12-5.1 (b).” (Punctuation omitted.) Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 828 (2) (435 SE2d 54) (1993). Viewing the evidence most favorably to Bradford as the non-movant, Elsberry v. Ivey, 209 Ga. App. 620 (1) (434 SE2d 158) (1993), McCormick was traveling between 70 and 80 mph in a 55 mph zone in wet conditions when his van crossed the grass median which divided the highway and struck Bradford’s vehicle. On deposition, McCormick did not deny speeding or crossing the median, although he could not recall exactly what happened just before or after the collision. In Harrison v. S & B Trucking, 179 Ga. App. 291, 292 (1) (346 SE2d 101) (1986), we held a jury was authorized to award punitive damages where the driver exceeded the speed limit and collided with the plaintiff despite an opportunity to avoid the collision. We stated that “[a] jury may find that evidence of illegal and excessive vehicle speeds, in conjunction with the other facts . . . , provides proof of an entire want of care and indifference to consequences authorizing punitive damages.” (Citation omitted.) Id. Similarly, in Day v. Burnett, 199 Ga. App. 494, 496 (2) (405 SE2d 316) (1991), we held punitive damages were authorized where the defendant followed too closely, traveled too fast for conditions and failed to maintain a proper lookout for traffic. See also Rider v. Taylor, 166 Ga. App. 474, 475 (1) (304 SE2d 557) (1983). “The cardinal rule of the summary judgment procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. The party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.” (Citations and punctuation omitted.) Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991). A genuine issue of material fact exists as to whether McCormick’s actions in exceeding the speed limit, driving across the median, and driving on the wrong side of the road showed one or more of the criteria for the award of punitive damages set forth in OCGA § 51-12-5.1 (b). In my opinion, the fact that the standard has changed from a “preponderance of the evidence” to “clear and convincing evidence” does not remove the issue from the province of the jury. Therefore, I believe the trial court erred in granting partial summary judgment for Xerox and respectfully dissent.

Decided December 20, 1994

Reconsideration denied January 17, 1995

I am authorized to state that Chief Judge Pope, Presiding Judge McMurray and Judge Ruffin join in this dissent.

Funderburk, Day & Lane, J. Phillip Day, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, for appellee.