author: Ruffin, Judge.

text:
    A97A0849.
    HARP v. THE STATE.
    (491 SE2d 923)
   Ruffin, Judge.

Anthony Glen Harp pled guilty to violating the Georgia Controlled Substances Act and driving without a license. He appeals, arguing that the trial court improperly modified and increased his sentence after its execution. For reasons which follow, we reverse and remand for resentencing.

The record shows that Harp entered his guilty plea during his jury trial on October 7, 1996. Following the plea, the trial court stated as follows: “I’m going to do this, Mr. Harp. It will be the sentence of the court that you serve ten years in the Georgia state penal system. The court will suspend that upon payment of a fine of $5,000.00. You will leave the $300.00 that you have in your pocket in the registry of the court with the clerk’s office. I will also direct that you reappear in Butts Superior Court on November 11th at 9:00 o’clock and the court will change the sentence then to an appropriate sentence that we’ll just have to discuss at that time. It will conform to what I generally do with other defendants. . . . You can pay the clerk and see the probation department. . . .” Counsel for Harp then inquired, “[t]hat is the sole condition of that sentence; is that correct?” The trial court responded, “[y]es, sir. He’ll have the $5,000.00, or the $4,700.00 when he comes back.” Immediately thereafter, the trial court released the jury, stating that “[t]his defendant has entered a plea of guilty and the court has sentenced him, so the case is over.”

Pursuant to the trial court’s instructions, Harp paid $300 into the court’s registry on the day of his plea. On November 11, 1996, Harp remitted the balance of the $5,000 fine to the clerk and appeared again before the trial court. At that point, the trial judge stated that he was not willing to suspend all of Harp’s sentence and that Harp should receive “a little probation[.]” Over defense counsel’s objections, the trial court directed that, in addition to paying the $5,000 fine, Harp serve three years of his ten-year sentence on probation, with the remaining seven years suspended. The trial court memorialized the sentence, including the probation requirement, that same day.

On appeal, Harp argues that the trial court improperly increased his sentence. We agree.

“Once a defendant begins to serve his sentence it may not be increased. [Cit.]” Higdon v. Cooper, 247 Ga. 746 (279 SE2d 451) (1981); Edge v. State, 194 Ga. App. 466, 467 (391 SE2d 18) (1990). “While it is true that an oral sentence is not a binding judgment of the court, the law is also clear that once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the Fifth Amendment prohibition against double punishment or jeopardy. [Cits.]” Inman v. State, 124 Ga. App. 190, 192 (1) (183 SE2d 413) (1971).

The State argues that the trial court’s statements on October 7, 1996 were simply a precursor to Harp’s sentence, not his “formal sentencing.” A clear reading of the transcript, however, shows that the trial court did not merely lay a preliminary framework for the ultimate sentence, as the State contends. In its own words, the trial court issued “the sentence of the court” on that date and told the jury that it “ha[d] sentenced [Harp], so the case is over.” Even the trial court’s plan to “change the sentence” later reveals that the court intended its oral statements on October 7, 1996 to be Harp’s sentence, at least as of that date. We agree that an oral declaration of what the sentence will be is not the formal “sentence of the court,” which must be signed by the trial judge. Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981). “However, the oral declaration of the sentence may not be increased after the defendant has begun to serve it. [Cit.]” Id.

We find that Harp commenced his sentence before the trial court added the probation requirement on November 11, 1996. Not only did Harp pay $300 of his $5,000 fine on October 7, 1996, he remitted the balance of the fine to the clerk’s office before the court imposed the probation requirement. We further find that the trial court’s additional probation requirement impermissibly increased Harp’s sentence.

Decided September 11, 1997.

Erion & Exum, Charles T. Erion, for appellant.

Although similar, a suspended sentence does not equal probation. “[A] probated sentence is served under the supervision of the probation officers pursuant to the Statewide Probation Act, whereas a suspended sentence is served without such supervision, but on such legal terms and conditions as are required by the sentencing judge.” (Citations and punctuation omitted.) Williams v. State, 191 Ga. App. 217, 218 (1) (381 SE2d 399) (1989). See also OCGA § 42-8-39 (providing that a suspended sentence “shall not have the effect of placing the defendant on probation”). The trial court’s only term or condition relating to the October 7, 1996 suspended sentence was payment of the $5,000 fine. In contrast, the court’s November 11, 1996 probation order imposed significant “conditions of probation,” including submission to various tests and searches, reporting requirements, and limitations on Harp’s movements inside and outside of Georgia. By their own terms, these conditions relate to the probationary portion of the sentence, rather than the suspended portion. Harp’s sentence thus changed from a suspended ten-year sentence conditioned only upon payment of a fine to three years of probation subject to multiple conditions, plus seven years suspended following payment of the fine.

The trial court’s new “conditions of probation” were not merely rehabilitative. Compare Edwards v. State, 216 Ga. App. 740 (3) (456 SE2d 213) (1995). They included penalties restricting Harp’s liberty in ways never contemplated by the original suspended sentence. See Pitts v. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992) (“ ‘(C)onditions of probation may be imposed for punitive purposes, such as by restricting a person’s liberties short of total incarceration. . . .’ [Cit.]” (Emphasis supplied.)). By imposing these new conditions, the trial court improperly increased Harp’s punishment after he began to serve his sentence. Accordingly, we reverse the sentence entered on November 11, 1996 and remand with direction that a sentence be entered which does not reflect an increase in punishment, from the oral declaration of sentence issued on October 7, 1996. See Harris v. State, 261 Ga. 859 (2) (413 SE2d 439) (1992).

Judgment reversed and remanded with direction.

Birdsong, P. J., and Eldridge, J., concur.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A1055.
    TRUSTEES OF TRINITY COLLEGE et al. v. FERRIS.
    (491 SE2d 909)
   Blackburn, Judge.

On March 29, 1991, while practicing for a collegiate rowing regatta in Augusta, Eric W. Ferris, a member of the Trinity College men’s varsity team, was injured when he was struck in the back by another boat operated by members of the women’s varsity team. He sued the Augusta Rowing Club, the host of the event; the Trustees of Trinity College; Steve Fluhr, his coach; Norman T. Graf, the coach of the women’s team; and Serena Lau, the coxswain of the boat that struck him. On the eve of trial, Ferris dismissed Augusta Rowing Club with prejudice. During trial, he dismissed Lau, saying that she did nothing wrong. The jury returned a verdict for Ferris against the remaining defendants, and the defendants appeal, alleging numerous errors.

1. Because Ferris had signed a release document releasing all regatta participants from any claims except those arising out of gross negligence or wilful or wanton misconduct, the primary issue at trial was whether appellants were guilty of gross negligence. Appellants contend that the court erred in denying their motion for directed verdict because there was no evidence of gross negligence.

“[I]n considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. . . . [T]he standard of appellate review of the trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard.” (Punctuation omitted.) Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267) (1991).

The evidence revealed the following. Augusta Rowing Club was the sponsor of a rowing regatta to be held on Saturday, March 30, 1991. The Trinity College teams arrived a week early and practiced on the river every day. The race course was laid out in four lanes, with lane 1 closest to the Georgia shore and lane 4 closest to the South Carolina shore. The part of the river between the race course and the Georgia shore was designated lane 0, and the part between the race course and the South Carolina shore was designated lane 5. Prior to Friday, March 29, the traffic pattern for boats on the river was the usual counterclockwise or right-hand rule in effect for rivers. That is, boats were to proceed upstream on the right-hand side of the river and return on the left. However, on Friday, March 29, which was designated as practice day, the traffic pattern was changed to a left-hand rule to enable boats to practice on the actual course. On that day, boats were to proceed upstream on the left-hand side of the river along the race course, and, if they wished to continue practicing, return on the right-hand, or South Carolina, side (lane 5). If boats were finished practicing, they could return to the launch site along the left-hand side between lane 1 and the Georgia shore (lane 0). This left-hand rule was set forth in materials supplied to com-schools by the Augusta Rowing Club, which materials also provided that practice times were to begin at 8:00 a.m. on Friday morning.

Steve Fluhr was the coach of the men’s team at Trinity College, and also oversaw the entire rowing program. On Friday morning, he informed the crews of the two men’s boats that the left-hand rule was in effect. The two boats put into the water some time before 8:00 a.m. and proceeded with a practice run up lanes 1 and 2, with Fluhr following in a motorized launch. Each boat consisted of eight male rowers and one female coxswain. Only the coxswain was facing in the direction the boat was traveling, and her view was partially obstructed by the rowers ahead of her.

Fluhr, by way of deposition, testified that he noticed a women’s boat coming downstream towards them, but believed it was outside the race course, between lane 1 and the Georgia shore. A witness in one of the boats testified that he heard Fluhr tell the coxswains of the men’s boats that the women were coming down the river. However, Fluhr did not tell the coxswains to stop. The women’s boat collided with one of the men’s boats, severely injuring Ferris.

Lau, the coxswain of the women’s boat, testified that she was never informed by her coach, Graf, that the left-hand rule was in effect on the day of the accident. Graf, by way of deposition, testified that he could not remember whether he had informed his team of the changed traffic pattern, or whether he had seen the material provided by the Augusta Rowing Club regarding traffic patterns on the practice day. Fluhr testified that he had provided Graf with such materials. He also testified that he believed Graf should have been in the water on a launch with the women’s team at the time of the accident.

“When facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable men as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury.” (Punctuation omitted.) Bostwick v. Flanders, 171 Ga. App. 93, 94 (318 SE2d 801) (1984). We believe the facts were sufficient to present a jury question regarding appellants’ gross negligence. The jury could have concluded that Graf, as coach of the women’s team, was grossly negligent in failing to advise Lau of the change in the traffic pattern, in failing to apprise himself of such change, and in failing to be on the water supervising his team at the time of the incident. The jury could have concluded that Fluhr had the best view of the situation and was grossly negligent in failing to stop the men’s boats when he became aware of the presence of the women’s boat on the course. The jury could also have concluded that Fluhr, as head of the rowing program, was grossly negligent in failing to ensure that the women’s team was advised of the traffic pattern change. Accordingly, as there was evidence from which the jury could have found gross negligence, this enumeration is without merit.

2. Appellants contend that the trial court erred in failing to hold a pre-trial conference and issue a pre-trial order. We disagree.

This Court has held that “[i]t is error to refuse to grant a pretrial hearing and order pursuant to [OCGA § 9-11-16] where a timely motion to this effect has been entered.” Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 761 (11) (242 SE2d 483) (1978); see also Malcolm v. Cotton, 128 Ga. App. 699, 701 (6) (197 SE2d 760) (1973). However, it is not error to refuse a pre-trial conference where the motion is untimely. See Kickasola, supra at 762 (demand made on day of trial held untimely).

On April 24,1995, the trial court denied appellants’ motion for a pre-trial conference on the grounds that it was not timely. The court noted that the motion had not been filed until after the case was placed on a ready list for trial, and that the case would be called for trial before a conference would be held. Based on the record before us, we cannot say that the trial court erred in this ruling.

After the trial court’s ruling, however, the case did not proceed to trial until June 25, 1996, 14 months after the order denying the motion. During this 14-month interim, there is nothing in the record to indicate that appellants filed a renewed motion or otherwise renewed their request to the court to hold a pre-trial conference, notwithstanding the untimeliness of any such request. It was not until the day of trial that appellants indicated they were not waiving their right to a pre-trial conference.

In these circumstances, the court did not err in failing to hold a pre-trial conference. The April 24, 1995 order clearly stated that the motion was being denied because it was untimely, and in any event, the case would be called for trial before the conference could be held. Once it became apparent that the case would not proceed to trial as anticipated, it was incumbent on appellants to renew their request for a pre-trial conference, which they did not do. Appellants cannot sit quietly for 14 months, and then on the day of trial complain that they have been denied a pre-trial conference. Accordingly, this enumeration is without merit.

3. Appellants contend they were entitled to a directed verdict on the grounds of Ferris’ assumption of the risk. They note that the release document signed by Ferris in connection with the regatta stated that “I acknowledge that. . . [b]y virtue of my participation I risk bodily injury[,] paralysis, dismemberment, and death, and other loss including damage to property. ... I knowingly and freely assume all such risk.” In order to compete in athletic activities for Trinity College, Ferris also signed documents stating that he “[h]as been informed and understands that there are inherent risks involved in sports competition. These risks may involve serious physical injury including catastrophic head and back injuries or even death.”

“In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. . . . The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. . . . The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities.” Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996).

“Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of . . . assumption of risk . . . are for the jury.” (Punctuation omitted.) Murphy v. Wometco Cable TV of Fayette County, 223 Ga. App. 640, 641 (478 SE2d 398) (1996). In this case, although Ferris was aware of the general risks inherent in rowing, the evidence did not require a finding that he was aware of and acquiesced in the specific risk that he would be injured in the manner he was as a result of appellants’ gross negligence. As it cannot be said as a matter of law that Ferris assumed the particular risk to which he was subjected, the trial court did not err in denying appellants’ motion for directed verdict on this ground.

4. Appellants contend the trial court erred in failing to dismiss Ferris’ complaint after he dismissed Lau, the coxswain of the boat that struck him, stating that she did nothing wrong. Appellants contend that Lau was the only active tortfeasor and that their liability was solely derivative of hers. This contention is without merit, however, as appellants’ liability is not merely derivative of Lau’s. Fluhr’s and Graf’s liability is based upon their own independent acts of gross negligence, and the Trustees’ liability is based upon principles of respondeat superior.

5. Appellants contend that the dismissal of Augusta Rowing Club, the only Georgia defendant, stripped the court of jurisdiction over the non-resident appellants, and that the court therefore erred in failing to dismiss Ferris’ complaint. This contention is without merit, however, as jurisdiction over appellants was not predicated upon the presence of a local defendant, but upon their commission of a tort in the State of Georgia. See OCGA § 9-10-91 (2).

6. Appellants contend the trial court erred in allowing a previously unidentified witness to testify and in failing to grant a continuance of the trial. For the reasons set forth below, we disagree.

On the morning trial was scheduled to begin, Ferris’ attorneys identified a new witness, Luke McCarthy, who had been on one of the men’s boats the day of the accident. McCarthy had not previously been identified as a witness in response to interrogatories. The trial court allowed Ferris to supplement his interrogatory responses to identify the new witness and the substance of his testimony, and provided a one-day continuance of the trial so that appellants could take McCarthy’s deposition that night.

Appellants contend the court should have excluded McCarthy’s testimony. The decision to allow testimony of a witness who has not been identified in response to interrogatories lies in the sound discretion of the trial judge. Sackett v. L. L. Minor Co., 244 Ga. 375, 376 (1) (260 SE2d 37) (1979). “Exclusion of a witness is proper only where there has been a deliberate suppression of the witness’ name. Jones v. Atkins, 120 Ga. App. 487 (2) (171 SE2d 367) (1969).” Brewer v. Brewer, 249 Ga. 517, 518 (3) (291 SE2d 696) (1982). In this case, although McCarthy had been Ferris’ roommate for three months before trial, and a social friend for a year before trial, Ferris claimed that he did not know McCarthy was a witness to the incident until shortly before trial. Although appellants contend that this explanation is implausible, we cannot say that the trial court abused its discretion in allowing the testimony in this regard.

Appellants also contend that the court erred in failing to continue the trial due to the surprise witness. Where the plaintiff produces a surprise witness, the court should allow “a postponement of the trial for a sufficient length of time to enable the defendant to interview [the witness], check the facts to which [he] would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach [him]. . . . [T]he trial judge should exercise his discretion as to the length of time that would be necessary for counsel.” (Punctuation omitted.) Jones, supra at 491 (2). In this case, the judge granted a one-day continuance to allow appellants to take McCarthy’s deposition, and required Ferris to supplement his interrogatory responses to specify the matters to which McCarthy would testify.

Although appellants contend they were entitled to a longer continuance because McCarthy provided new testimony which materially changed the nature of the trial, this is not borne out by the record. Appellants contend that McCarthy’s testimony was particularly critical because he provided the only evidence that Fluhr was aware of the presence of the women’s boat on the river just before the accident. However, Fluhr himself, in deposition testimony read into evidence at trial, admitted that he had seen the women’s boat coming down the river.

Appellants also contend that McCarthy provided the only evidence the accident occurred on the Georgia side of the river, thus providing the sole basis for jurisdiction over appellants under the Long-Arm Statute. However, both Fluhr and Graf admitted that the accident occurred on the Georgia side of the river. McCarthy’s testimony was essentially cumulative of the appellants’ own testimony. Appellants have not demonstrated in what manner they were harmed by the one-day continuance. We cannot therefore say that the court abused its discretion in allowing such continuance of the trial.

7. Appellants contend that the court erred in failing to “control” McCarthy and in denying appellants their right to a thorough and sifting cross-examination. These contentions are without merit. Although the record reveals that McCarthy would often provide long, narrative responses to appellants’ questions, such responses were typically in response to open-ended questions by appellants’ counsel. Nothing in the record demonstrates that appellants were denied the right to a thorough and sifting cross-examination of McCarthy or any other witness.

8. Appellants contend the trial court erred in charging the jury, noting that in some instances the court used the word “negligence” instead of “gross negligence.” However, appellants’ counsel failed to object to the charge on these grounds. “Failure to except before verdict generally results in a waiver of any defects in the charge, [unless the charge contains] a substantial error which was blatantly apparent and prejudicial, and which resulted in a gross miscarriage of justice.” (Punctuation omitted.) Pope v. Goodgame, 223 Ga. App. 672, 675 (3) (c) (478 SE2d 636) (1996); see OCGA § 5-5-24. This “substantial error” exception is not applicable in this case. The court fully charged the jury on the difference between ordinary and gross negligence, and charged that Ferris must prove appellants were grossly negligent in order to recover. Viewing the charge as a whole, the few instances in which the judge referred to “negligence” instead of “gross negligence” did not amount to a substantial error requiring appellate review in the absence of an objection.

9. Appellants contend the court erred in failing to grant a mistrial after Ferris’ counsel made allegedly improper remarks during jury selection. During voir dire, Ferris’ counsel stated that “[w]e don’t have any reason to strike anybody that’s sitting in that jury. . . .

Decided September 11, 1997

Woodall & Mackenzie, John T. Woodall, Peter A. Giusti, for appellants.

Guy E. Davis, Jr., John P. Batson, for appellee.

We’ll just let him finish picking the jury. We don’t have anybody to strike.” The trial court denied appellants’ motion for a mistrial, but issued a curative instruction telling the jury panel that the remark was improper and should be disregarded.

“The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.” (Citations and punctuation omitted.) Stoner v. Eden, 199 Ga. App. 135, 137 (2) (404 SE2d 283) (1991). Under these circumstances, the trial court did not abuse its discretion in denying a mistrial and issuing a curative instruction.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A1122.
    TUCKER FEDERAL SAVINGS & LOAN ASSOCIATION v. BALOGH.
    (491 SE2d 915)
   Blackburn, Judge.

We granted Tucker Federal Savings & Loan Association’s (the bank’s) application for interlocutory appeal to review the trial court’s denial of its motion for summary judgment in this negligence action. Sylvia Balogh, individually and as the administrator of the Estate of Gabor Balogh, deceased, filed the underlying action to recover damages for the wrongful death of Gabor Balogh. Balogh contends that the bank’s negligence during an armed robbery resulted in Gabor Balogh’s death.

The standard of review of the trial court’s denial of the bank’s motion for summary judgment is a de novo review of the evidence to determine whether there is any genuine issue of material fact as to the elements required to establish the causes of action stated in the complaint. Artlip v. Queler, 220 Ga. App. 775, 776 (470 SE2d 260) (1996). To obtain summary judgment, the bank as the moving party must demonstrate that there is no genuine issue of material fact, and that the material evidence, viewed in the light most favorable to the nonmoving party, warrants judgment as a matter of law. OCGA § 9-11-56. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

On December 18, 1993, Michael Wayne Nance robbed the Lilburn branch of the defendant’s bank. Wendy Schlenz, a bank teller, deposed that after she asked Nance if she could help him, he pulled a mask down, pulled out a gun, and told her to put all the money in the bag. Nance was cussing and threatening to shoot everyone. Schlenz put the money in the bag and included a dye pack. Schlenz deposed that after she put the dye pack in the bag, Nance told her not to give him any “dye money.” Schlenz did not tell him she had used a dye pack.

After Nance left the bank, he was seen in his car as red smoke started to come from the car, presumably from the exploding dye pack. Nance left his car and ran across the street. The decedent was backing his car out of a store parking lot when Nance ran up and jerked the driver’s side door open. Nance told the decedent to get out of the car and then shot and killed him. Nance ran away, but was later apprehended.

“To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.” (Punctuation omitted.) Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (1) (396 SE2d 9) (1990).

Balogh contends that the bank was negligent by using the dye pack, asserting that it knew or should have known that the use of a dye pack would render the get-away car virtually useless. She claims that such action created a hazardous condition because the robber was carrying a gun and would attempt to get away in whatever way possible. However, she has failed to present evidence as to how the bank breached any duty it owed to the decedent. Accordingly, her contentions are without merit for several reasons.

First, the Code of Federal Regulations specifically provides for the use of chemical and electronic devices. See 12 CFR § 216.3 (a) (2) (ii). Second, the evidence is uncontroverted that the teller put the dye pack into the bag prior to the robber threatening violence if the dye pack was used. Although Balogh contends that this fact is controverted, a review of the evidence cited by Balogh indicates that a bank employee testified that “[throughout the robbery [the robber] basically said give me all your money and threw some bags on the counter. He told me that if the police, he said if the police come I am going to blow your f___ing heads off. If you give me the dye things, I will come back and kill you. Hurry up. I am just kind of repeating those type sentiments.” This testimony only reveals what was said throughout the robbery, it does not indicate the timing of the robber’s comments, and it in no way controverts the teller’s direct testimony that she had put the dye pack into the bag prior to the robber making threats regarding dye packs. Third, the bank was unable to control or predict the robber’s actions.

Furthermore, even assuming the bank’s actions were negligent, “[generally, an independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury superseding any negligence of the defendant unless the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent act.” (Punctuation omitted.) Collie v. Hutson, 175 Ga. App. 672, 673 (2) (334 SE2d 13) (1985). See also Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63 (2) (d) (397 SE2d 576) (1990); Anneewakee, Inc., supra at 367. “Although under Georgia law questions of negligence and proximate cause are ordinarily for the jury, plain and indisputable cases may be decided by the court as a matter of law. In such plain cases the inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery.” (Punctuation omitted.) Strickland, supra at 67. OCGA § 51-12-9 provides that “[djamages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.” Based upon the bank’s lack of control over the circumstances of the robbery, including the robber’s actions, we find that Balogh’s damages are too remote to arise from any action taken by the bank. See Strickland, supra; Anneewakee, Inc., supra. Compare Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982) (mental institution held liable for releasing decedent’s estranged husband on an unrestricted weekend pass despite knowing of his intention to kill his wife).

Our review of the evidence indicates that the bank has shown that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Therefore, the trial court erred in denying its motion for summary judgment.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

Decided September 11, 1997.

Goldher, Sommers, Scrudder & Bass, Susan V. Sommers, Jane C. Taylor, for appellant.

Troy A. Gay, for appellee.

       Dye packs contain a small transmitter and a small charge that emit dye and tear gas when activated. The pack is activated by transmitters in the ceiling of the bank near the exit.


text:
    A97A1287.
    TAHAMTAN v. SAWNEE ELECTRIC MEMBERSHIP CORPORATION et al.
    (491 SE2d 918)
   Blackburn, Judge.

Amir Tahamtan appeals the trial court’s grant of summary judgment to defendants Sawnee Electric Membership Corporation and Mike Goodroe on Tahamtan’s claim for damages arising out of the defendants’ alleged provision of false credit information to a credit reporting agency. For the reasons set forth below, we affirm.

Tahamtan filed his complaint on March 29, 1994, alleging that the defendants erroneously reported an outstanding debt to a credit reporting agency. Tahamtan apparently amended his complaint at some point, although this amendment is not contained in the record. On January 8, 1997, the trial court granted the defendants’ supplemental motion for summary judgment on the grounds that all of Tahamtan’s claims were barred by the statute of limitation. It is from this order that Tahamtan appeals.

Other than Tahamtan’s original complaint and the defendants’ answer, the record on appeal does not contain any evidence considered by the trial court. In his amended notices of appeal, Tahamtan directed the clerk to forward only the complaint and answer, the defendants’ supplemental motion for summary judgment and statement of material facts, Tahamtan’s brief in response to the motion, and the trial court’s order. Tahamtan did not request that the clerk forward a copy of his deposition testimony, which was expressly relied upon by the defendants in their motion.

“It is well established that the burden is on the party alleging error to show it affirmatively by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm.” Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (401 SE2d 294) (1990). “Assertions of evidence in briefs or enumerations of error cannot satisfy this duty,” (punctuation omitted) Arnold v. Brundidge Banking Co., 209 Ga. App. 278, 279 (433 SE2d 388) (1993), overruled on other grounds, Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 706 (463 SE2d 23) (1995), and factual assertions contained in the parties’ briefs to the lower court are not evidence. Transport, supra.

Decided September 11, 1997.

Amir A. Tahamtan, pro se.

Hicks, Casey, Young & Barber, William T. Casey, Jr., Timothy K. Hall, for appellees.

“[O]mis'sions from the appellate record from matters on summary judgment generally prove fatal to appellate review since it must be assumed by a reviewing court that the trial court’s grant of summary judgment is properly supported by the trial court record and since appellant has the burden of showing error affirmatively by the record on appeal.” Dillman v. Kahres, 201 Ga. App. 210, 211 (411 SE2d 43) (1991). “[W]hen a portion of the evidence bearing upon the issue raised by the enumeration of errors is not brought up so that this court can make its determination from a consideration of all relevant evidence bearing thereon, an affirmance as to that issue must result.” (Punctuation omitted.) Brundidge, supra at 279.

In Williams v. Food Lion, 213 Ga. App. 865 (446 SE2d 221) (1994), this Court affirmed a grant of summary judgment where “only a partial transcript of appellant’s deposition testimony was forwarded to this court for appellate review. Examination of this testimony may have found additional unexplained conflicting testimony, or testimony which otherwise supported the grant of summary judgment to appellee. Access to the trial transcript would be necessary to determine whether the grant of summary judgment on behalf of appellee was right for any reason, and in the absence of the required transcript the judgment of the trial court must be affirmed.” (Punctuation omitted.) Id. at 867 (3) (b).

Inasmuch “[a]s [Tahamtan has] omitted from the record some portion of the evidence upon which the [superior] court relied, we must affirm.” Transport, supra at 266.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       The court apparently had previously granted partial summary judgment to the defendants, although this order is not contained in the record on appeal.


text:
    A97A1318.
    LPS CONSTRUCTION COMPANY, INC. v. GEORGIA DEPARTMENT OF DEFENSE et al.
    (491 SE2d 920)
   Blackburn, Judge.

LPS Construction Company, Inc. (LPS) brought the underlying action for breach of the implied duty of good faith and fair dealing and quantum meruit seeking to recover $75,000 from the defendants, Georgia Department of Defense (DOD) and the Georgia Department of Administrative Services (DOAS). LPS appeals the trial court’s order granting the defendants’ motion for summary judgment.

“On appeal from the grant of a motion for summary judgment, we review the record de novo to determine if the moving party has demonstrated there is no genuine issue of material fact and the undisputed facts, construed in a light most favorable to the non-moving party, warrant judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996).” Sagon Motorhomes v. Southtrust Bank of Ga., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).

In accordance with the State Purchasing Act, OCGA § 50-5-50 et seq., the DOAS invited sealed bids for the construction of a project at Fort Stewart, Georgia, on behalf of the DOD. The bid package contained a proposal form which stated: “Prior to the bid opening date and hour, errors may be stricken or revisions may be made and corrections entered on this proposal form, provided that any such strike-over or revision is signed in ink by the person signing the bid or his agent. Any revisions made on the outside of the envelope will not be accepted” (Emphasis supplied.) The “Instructions to Bidders” stated that “[t]he Owner reserves the right to reject any or all bids and to waive any technicalities and informalities.”

LPS submitted a timely, signed, and sealed bid on the form-required, offering a total contract price of $2,628,100. LPS’ president signed the proposal form, but it is undisputed that he did not read the proposal form. On the outside of the bid envelope, there was a handwritten notation which stated, “Alternate #6 Add 68,000.00 — Base Bid Add 7,000.00.” The handwritten notation was not signed or initialed. LPS contends that it received a last minute bid from one of its subcontractors which necessitated the revision on the bid envelope. LPS had estimated what the subcontractor would bid and that estimation was on the signed and sealed bid. As the subcontractor’s official bid was received only one minute before bid opening, LPS’ agent did not have time to make the revisions required by the bid rules.

On September 29, 1995, the DOAS accepted LPS’ offer by furnishing a purchase order awarding the contract to LPS in the amount of $2,628,100. DOAS regulations provide, “[a] written Purchase Order furnished to the successful bidder/offeror within the time specified in the solicitation document results in a binding contract without further action by either party.” Therefore, a binding contract was formed as of the time the DOAS accepted LPS’ bid.

By letter dated October 10, 1995, LPS’ president requested that the DOD and DOAS waive compliance with the “technicality on the Bid Proposal Form relating to revisions on the envelope.” The president’s letter further stated: “I therefore respectfully request that the technicality of no revisions on the envelope be waived and the contract amount be adjusted to $2,703,100. Whatever your decision, I do fully intend to honor my obligation to the Department of Defense regardless of the financial hardship I may face.” By letter dated October 11, 1995, the DOAS denied LPS’ request for a waiver.

On October 19, 1995, LPS’ president signed, “under protest,” a copy of a formal contract memorializing the September 29, 1995 agreement. Specifically, LPS added the following statement to the signature line: “Signed under Protest as Final Contract Price Subject to Outcome of Lawsuit filed 10/19/95.”

1. In Count 1 of its amended complaint, LPS contends that “LPS intended for its bid to include the $75,000.00 in envelope revisions” and that defendants either knew or should have known that LPS’ bid included the $75,000. However, LPS’ intent to include the envelope revisions is irrelevant considering the clear instructions that no envelope revisions would be considered. LPS’ bid was for the amount stated on the bid form and the defendants’ acceptance of the bid created a binding contract for the amount bid. See cf. Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (2) (324 SE2d 776) (1984) (communication of acceptance of offer forms bilateral contract). Nothing further needed to be signed for a binding contract. Therefore, LPS’ later attempt to change the contract price by signing the formal contract “under protest” was to no avail, as the contract was formed upon the DOAS’ acceptance of its bid.

LPS contends that someone in the bid room who worked with DOD waived the requirement that envelope revisions would not be considered. For this contention, LPS relies on hearsay testimony that an unidentified person claiming to work with the DOD said, “[w]ell, I’m with the Department of Defense, and the federal government does it all the time. I’m sure it’s all right.” Initially, we note that hearsay has no probative value in summary judgment proceedings unless it is part of the res gestae. See Real Estate Intl. v. Buggay, 220 Ga. App. 449, 451 (1) (469 SE2d 242) (1996). Further, LPS’ contention that it relied on such hearsay statement is belied by its later letter requesting a waiver.

LPS further contends that the day after its bid was submitted, DOD agents represented that the “technicality” regarding the envelope revisions would be waived. Furthermore, a DOD agent deposed that he had told LPS’ president that the envelope revisions would be considered. However, on the day after bid opening, a DOAS representative informed LPS’ president that the envelope revisions would not be accepted. And again, LPS’ letter requesting a waiver of the specific bid requirement makes it clear that neither DOAS nor DOD had previously waived such requirement. Furthermore, LPS assured the DOD and the DOAS that it would abide by their decision as to whether the envelope revisions would be accepted.

Decided September 11, 1997.

Griffin, Cochrane & Marshall, Melissa S. Harben, William H. Parkman, for appellant.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Senior Assistant Attorney General, Isaac Byrd, Grace E. Lewis, Brenda H. Cole, Robert S. Bomar, John B. Ballard, Jr., Assistant Attorneys General, for appellees.

LPS cites First Baptist Church of Moultrie v. Barber Contracting Co., 189 Ga. App. 804 (377 SE2d 717) (1989) for the proposition that the DOD and DOAS should not be allowed to benefit from its mistake that was apparent from the face of its offer. In First Baptist, we held that equity will rescind a contract based upon a unilateral mistake. We determined that “[t]he prerequisites for obtaining such relief are: (1) the mistake is of such consequence that enforcement would be unconscionable; (2) the mistake must relate to the substance of the consideration; (3) the mistake must have occurred regardless of the exercise of ordinary care; (4) it must be possible to place the other party in status quo. It is also generally required that the bidder give prompt notification of the mistake and his intention to withdraw.” (Citations and punctuation omitted.) Id. at 807-808. The facts in First Baptist dealt with a miscalculation. In the present case, however, LPS submitted a proper bid. Its only mistake was in its failure to read and abide by the bid requirements. Therefore, our holding in First Baptist is inapplicable to the present case.

2. LPS’ final theory of recovery sounds in quantum meruit. LPS asserts that it is entitled to recover the $75,000 written on the face of the envelope because “[n]o state agency is allowed to take private property without due and adequate compensation.” However, as a valid express contract exists LPS cannot recover in quantum meruit absent a breach of the contract by the DOAS or DOD. See Classic Restorations v. Bean, 155 Ga. App. 694 (272 SE2d 557) (1980) (where express contract in existence quantum meruit inapplicable); Remediation Svcs. v. Ga.-Pacific Corp., 209 Ga. App. 427, 433 (433 SE2d 631) (1993) (“‘one is estopped to recover on quantum meruit where there exists an express agreement’ ”). Therefore, summary judgment was properly granted to DOD and DOAS by the trial court.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       The trial court’s rendition of the facts is supported by the record, and we adopt them with minor additions.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A97A1628.
    WASHINGTON v. THE STATE.
    (491 SE2d 925)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found not guilty of murder, felony murder, aggravated assault and possession of a firearm during the commission of a crime. The jury found defendant guilty of the lesser included offense of voluntary manslaughter. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in allowing the testimony of an expert witness who was not on the State’s Uniform Superior Court Rule 30.3 list of witnesses. This assertion is without merit. Defendant waived his right to complain about this unlisted witness’ testimony when he refused the trial court’s offer for a mistrial. Gale v. State, 135 Ga. 351, 354 (2) (69 SE 537). See White v. State, 208 Ga. App. 885, 889 (4) (432 SE2d 562).

2. The trial court did not err in giving the State’s requested charge as to the lesser included offense of voluntary manslaughter. “On the trial of a murder case, if there is any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given to the jury. Raines v. State, 247 Ga. 504 (1) (277 SE2d 47) (1981) and cit.” Henson v. State, 258 Ga. 600, 602 (5) (372 SE2d 806). See Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444), and State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354). Evidence in the case sub judice that defendant and co-defendant Hampton engaged in a gun battle with the victim over an illegal drug transaction that had gone bad several hours earlier authorized the State’s requested charge on voluntary manslaughter. See OCGA § 16-5-2 (a).

3. Defendant contends the trial court erred in failing to grant a mistrial when an investigating police officer testified that — while assembling a photographic display — “we went out to the jail and obtained a photo of defendant Roderigo Washington.” In accordance with the cases cited in Hall v. State, 177 Ga. App. 464 (339 SE2d 658), we find that this unresponsive statement did not place defendant’s “character in issue, as it, without more, did not imply he had a prior criminal record.” Id. at 465.

4. Defendant’s incriminating custodial statement, corroborated by independent eyewitness testimony of the shooting, authorizes the jury’s finding that defendant is guilty, beyond a reasonable doubt, as a party to the crime of voluntary manslaughter. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley, J., concurs specially. Smith, J., concurs in the judgment only.

Beasley, Judge,

concurring specially.

I concur, but not fully in Division 1. A criminal defendant’s refusal of a mistrial when an unlisted witness is called to offer evidence would not always constitute a waiver of the procedural defect. There may be instances in which a mistrial would prejudice the defendant or the nondisclosure by the State was deliberate so as to disadvantage the defendant. In such and other conceivable instances, exclusion of the witness’ testimony may be the only proper remedy.

Defendant Washington seeks what he describes in his brief as “fundamental fairness,” and that is what the trial court attempted to provide. As the court stated at trial, “I want to do justice to both sides.” And the court did just that.

When, to defendant’s surprise, the witness was called, he objected because he had not been advised in advance as required by the rules. After hearing the State’s explanation, and considering the timing of the trial, the court offered several remedies. First, the court ordered the witness, who was a firearms examiner and director of the Savannah branch of the State Division of Forensic Sciences (crime lab), to consult with defense counsel “at length” during the recess then being observed, gave counsel the time requested, and told counsel that it would allow more time if needed. Second, the court offered to delay the witness’ testimony for 24 hours so counsel could conduct additional investigation. Third, the court offered to postpone the trial, which was in its second day. Finally, after the recess during which counsel interviewed the witness, the court asked if defendant wanted a mistrial when objection was still insisted upon. As the majority states, defendant declined a mistrial, without even inquiring when the next trial would take place, endeavoring instead to achieve exclusion of the witness’ testimony altogether.

The court was not required to prevent the jury from hearing the evidence, which consisted of examinations of shell casings and a bullet jacket fragment, and thereby to preclude the jury from being more fully informed so it could ascertain the truth. USCR 30.3 requires the district attorney to provide the addresses and telephone numbers of the state’s witnesses “to the extent such are within the knowledge of the district attorney, unless for good cause the judge allows an exception to this requirement, in which event defense counsel shall be afforded an opportunity to interview such witnesses prior to the witness being called to testify.” This is the rule which defendant invokes. The only other authority provided in Georgia law is the Georgia Constitution, Art. I, Sec. I, Par. XTV, which guarantees the right “on demand, [to] a list of the witnesses on whose testimony [the] charge is founded.”

The State, and White v. State, 208 Ga. App. 885, 889 (4) (432 SE2d 562) (1993), depend also on OCGA § 17-7-110, but that section of the Code was repealed prior to the date of Washington’s trial. Ga. L. 1994, p. 1895, § 1 (effective January 1, 1995). The majority also cites Gale v. State, 135 Ga. 351, 354-356 (2) (69 SE 537) (1910), but that case was decided long before the adoption of the Uniform Superior Court Rules and did not cite the then-extant state constitution, although the latter may have been the implied basis for its ruling. It decided the issue on the basis of the fundamental principle that “[e]very person accused of crime is entitled to a fair and impartial trial, according to the rules of law,” not on a right to a list of witnesses. Id. at 355. Compare Ga. Const. 1983, Art. I, Sec. I, Par. XI (a) with Par. XIV.

In this case, the district attorney did not know of the witness and in fact the witness did not even have any relevant testimony, until the day before he was called. After defense counsel delivered the opening statement to the jury, the district attorney learned that there were shell casings and a bullet jacket fragment which had not been sent to the State crime lab for examination with other items. He had them delivered, and the witness examined them that night. So when the witness testified, there was not yet even any written report. His testimony was admitted after the above-described precautions were taken.

Defendant argues that it is not fair to allow the State to introduce new witnesses who are obtained after the State hears the defense’s theory of the case in the opening statement and to require defendant, who has demanded a speedy trial, to choose a mistrial as a remedy when he will remain in jail until the next trial. Defendant claimed before the trial court that the surprise, which is one evil the advance list of witnesses is designed to avert, disadvantaged him in that had he known of the evidence beforehand, his opening statement might have been different.

Weighing the right of the defendant to an advance list of witnesses and his right to a speedy trial on one hand, neither of which need be forfeited in order to assert the other, and the right of the State to present all the evidence it can lawfully garner to meet its strict burden in criminal cases plus the public’s interest in ascertaining the truth on the other hand, I agree that the trial court did not abuse its discretion. Of import in seeking a balance is the fact that the evidence did not exist until the evening before the witness was called, the fact that the examination was not deliberately forestalled, the fact that defendant was given full opportunity to react and prepare against such evidence, and the lack of any indication that if defendant chose mistrial, a second trial would be far off.

Decided September 11, 1997

Gregory N. Crawford, for appellant.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

       See Butler v. State, 139 Ga. App. 92, 93 (1) (227 SE2d 889) (1976); Hicks v. State, 232 Ga. 393, 399 (207 SE2d 30) (1974).


author: Pope, Presiding Judge.

text:
    A97A1042.
    ULBRICH OF GEORGIA, INC. v. WILLIAMS et al.
    (492 SE2d 238)
   Pope, Presiding Judge.

In this slip and fall case, defendant Ulbrich appeals the denial of its motion for summary judgment. Because plaintiff Williams was at least as aware of the dangerous condition as defendant, we reverse.

We view the evidence in a light favorable to plaintiff, based mainly on his own deposition testimony. Plaintiff was a truck driver with Yellow Freight Systems, and defendant’s warehouse was a regular stop on his route. Plaintiff would deliver or pick up goods there almost every day, and 90 percent of the time he would use a dock board or leveler — a device on the dock which attaches to a delivery truck and moves up or down as necessary to allow a flat surface for moving goods on or off the truck. The device is designed to move up when the worker pulls a chain and to move down when the worker applies pressure by walking on the board. Plaintiff is relatively slight, however, and he had previously had trouble getting the device to go down on a number of occasions, both at defendant’s facility and at other businesses with the same type of leveler. Plaintiff realized that he needed a heavier person’s help or some method of applying more pressure. But plaintiff never complained to anyone or asked for help, even though he acknowledged that the people at defendant’s facility were nice and would have helped him if he had asked. Instead, he developed a method of pushing against a nearby wall for additional leverage and thus additional pressure. This had worked on previous occasions; but on the day of plaintiff’s accident, he slipped while pushing against the wall and fell into the dock — perhaps because it had been raining and the dock board was wet.

Even if premises are dangerous and the landowner is aware of the danger, the landowner is not liable if the plaintiff has equal or superior knowledge of the danger and fails to exercise ordinary care for his own safety. See, e.g., Thomas v. Southwest Ga. Community Action Council, 215 Ga. App. 638, 639 (451 SE2d 800) (1994). In this case, even if we assume the dock leveler was defective and defendant was aware of the defect, plaintiff’s own deposition testimony shows that his knowledge of the danger was at least as great and at least as specific as that of defendant. He knew that he had frequently had trouble with the leveler in the past, and he knew that the dock and leveler were wet from rain on the day of his accident.

Decided July 24, 1997

Reconsideration denied September 12, 1997

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Jerald R. Hanks, Michael C. Cherof, for appellant.

Furlong & Franco, Walter W. Furlong, for appellees.

Plaintiff’s reliance on Kitchens v. Winter Co. Builders, 161 Ga. App. 701 (1) (289 SE2d 807) (1982) is misplaced. In that case, we held that a plaintiff’s equal knowledge should not bar recovery in an employment context where the worker’s only alternatives were to engage in the dangerous activity or walk off the job. In this case, plaintiff acknowledged that he had another alternative: he could have asked for help. And if he had done so, he could have avoided the danger. See also Harmon v. Reames, 188 Ga. App. 812 (374 SE2d 539) (1988).

Accordingly, the trial court erred in denying defendant’s motion for summary judgment.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A97A1093.
    DUNHILL CONDOMINIUM ASSOCIATION, INC. v. GREGORY.
    (492 SE2d 242)
   Pope, Presiding Judge.

In this case, we consider the circumstances under which a secondary purchase-money mortgage is superior to a condominium association’s lien against a condominium unit for unpaid fees. Based on its interpretation of OCGA §§ 44-3T109 (a) (4) and 44-3-80 (f), the trial court ruled that a secondary purchase-money mortgage is superior to a condominium association’s lien whenever the mortgagee did not directly sell the unit to the debtor who eventually failed to make the mortgage payments or pay the condominium fees. We disagree with this interpretation and therefore reverse the trial court’s grant of summary judgment for the secondary purchase-money mortgagee, as well as its denial of summary judgment for the condominium association.

Gregory sold a condominium to Barker in 1990. Gregory partially financed the sale, and his loan to Barker was secured by a secondary purchase-money mortgage. Two years later Barker sold the condominium to Francisco, who assumed Barker’s debt to Gregory. When Francisco failed to make his payments to Gregory, Gregory reacquired title through a foreclosure sale in February 1995. In the meantime, however, Francisco had also failed to pay his condominium association fees to Dunhill Condominium Association (“the Association”). When the Association billed Gregory for the fees, penalties, and attorney fees owed by Francisco, Gregory brought this action for a declaratory judgment.

Although a condominium association’s lien has priority over most other liens, it is subordinate to a first mortgage or a secondary purchase-money mortgage, “provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit.” OCGA § 44-3-109 (a) (2), (4). And although the condominium association can generally hold the new owner of a condominium unit liable for unpaid pre-conveyance assessments, it cannot do so if the new owner acquired title as a result of the foreclosure of a first mortgage or a secondary purchase-money mortgage, “provided that neither the grantee nor any successor grantee on the secondary purchase-money mortgage is the seller of the unit.” OCGA § 44-3-80 (e) & (f). Thus, whether the Association still has a valid lien and can collect pre-foreclosure fees and assessments from Gregory depends on whether Gregory “is the seller of the unit” within the meaning of these provisions of the Condominium Act.

The word “seller” is not defined in the Act. But the term “purchase-money mortgage” necessarily implies that the mortgage was created in conjunction with a sale transaction. Accordingly, when the term “purchase-money mortgage” is followed by a limiting clause which contains the word “seller,” it is most logical to interpret the word “seller” as a reference to the seller in the sale transaction in which the mortgage was created, rather than the sale transaction in which the ultimately defaulting debtor purchased the property.

Moreover, this logical interpretation is consistent with the purpose of the portions of the Condominium Act relating to assessments and liens. The intent of these provisions is to establish the priority of condominium association liens over other liens, with certain limited exceptions, and to facilitate the enforcement of those liens. Propes v. Stonington Homeowners Assn., 149 Ga. App. 135, 138 (2) (253 SE2d 813) (1979). “[Pjublic policy requires that condominium associations have sufficient power to enforce the collection of assessments”; otherwise, the association will not be able to continue to function and meet its obligations without unfairly burdening the other members of the community. Casey v. North Decatur Courtyards Condo. Assn., 213 Ga. App. 190, 191 (1) (444 SE2d 361) (1994); accord Chattahoochee Chase Condo. Assn. v. Ruben, 221 Ga. App. 724, 726 (1) (472 SE2d 520) (1996); Forest Villas Condo. Assn. v. Camerio, 205 Ga. App. 617 (1) (422 SE2d 884) (1992). See also Carroll v. Oak Hall Assoc., L.P., 898 SW2d 603 (Mo. App. W.D. 1995) (subordination of condominium association’s lien is exception rather than rule, and statutory exceptions to priority of condominium association’s lien should be strictly construed).

Decided August 11, 1997

Reconsideration denied September 12, 1997

Weissman, Nowack, Curry & Zaleon, Charles B. Waters, Jr., Frances R. Mathis, for appellant.

Jason M. Braswell, David U. Crosby, for appellee.

The trial court held that “seller” refers only to the person who sold the unit to the defaulting debtor; so if the mortgagee was not this person, he was not liable for pre-foreclosure fees and assessments. If this interpretation were correct, however, a seller/mortgagee could easily avoid the purpose of the statute by setting up an intermediate, straw-man transaction to prevent him from being the direct seller to anyone who might eventually default.

For these reasons, the trial court erred in its interpretation of OCGA §§ 44-3-109 (a) (4) and 44-3-80 (f). The judgment below is reversed, and the case is remanded to allow the trial court to make a determination regarding the reasonableness of the attorney fees the Association is seeking.

Judgment reversed and case remanded.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


author: Andrews, Chief Judge. Eldridge, Judge,

text:
    A97A1537.
    JONES v. INGLES MARKETS, INC.
    (492 SE2d 257)
   Andrews, Chief Judge.

While shopping at an Ingles Markets, Inc. food store, Penny Jones stepped in a puddle of liquid and slipped. Jones sued Ingles claiming that the puddle on the floor was a dangerous condition on the premises; that Ingles negligently failed to exercise ordinary care to keep the premises safe for invitees, and that this negligence was the proximate cause of an injury she incurred when she slipped. Ingles moved for summary judgment solely on the basis that Jones failed to exercise ordinary care to discover and avoid the puddle in her path. Based on the evidence before it, the trial court concluded that Ingles was entitled to summary judgment because of Jones’s “failure to exercise ordinary care for her own safety.” Jones appeals from the order granting summary judgment in favor of Ingles.

The following facts are relevant to this issue: Jones deposed that as she was leaving the Ingles store after checking out, her left foot slipped on something, but she was able to catch herself before she fell. She alleged that her back and legs were injured as a result of the slip. She testified that after she slipped, she looked down at the floor and could see that she had stepped in a puddle of clear liquid which looked like about a cup and a half of water on the floor. Jones testified that she did not see the liquid prior to stepping in it because, as she was exiting the store prior to the slip, she was looking straight ahead rather than in the direction of the floor. She admitted that nothing prevented her from seeing the liquid on the floor prior to stepping in it and that it would have been visible to her had she looked for it. The record contains no other depositions, affidavits or other evidence supporting or opposing the motion for summary judgment.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [s]he slipped and fell on a foreign substance on the defendant’s [premises], the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

Ingles clearly limited its motion for summary judgment to the second prong of the Alterman Foods test; Jones responded only to that issue, and the trial court granted summary judgment solely on that basis. Since Jones had no burden to respond to issues not raised in the motion for summary judgment, our review of the record is limited to the second prong of the Alterman Foods test. Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (458 SE2d 876) (1995); compare Solon Automated Svcs. v. Corp. of Mercer Univ., 221 Ga. App. 856, 859 (473 SE2d 544) (1996). (In response to the plaintiff’s motion for summary judgment, the defendant raised an issue not raised in the motion, and the trial court considered the issue sua sponte.)

Under the second prong of Alterman Foods, the issue is whether or not the evidence shows that Jones knew about or should have discovered the puddle and avoided it prior to stepping in it. This prong requires that “[t]he customer must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” (Citations and punctuation omitted.) Alterman Foods, supra at 623.

Applying these standards, the evidence shows that the puddle was visible and, had Jones looked at the floor where she was walking prior to the slip, she could have seen and avoided it. There was no evidence that Ingles was in any way responsible for Jones’s failure to see and avoid the puddle. Accordingly, the trial court’s grant of summary judgment in favor of Ingles was proper because Jones slipped as a result of her failure to exercise ordinary care for her own safety. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991).

Judgment affirmed.

Birdsong, P. J, concurs. Eldridge, J., concurs specially.

Eldridge, Judge,

concurring specially.

While I concur with the entire opinion of the Court, I feel it necessary that this special concurrence be added to raise certain issues that must be kept foremost in view when dealing with slip and fall cases. The two-prong test of Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980) was not the basis for the holding of the Supreme Court in that case and is obiter dictum that has become the basis for subsequent analysis of slip and fall cases as holy writ. The Alterman two-prong analysis appears to shift the burden of proof as to affirmative defenses, contributory negligence and assumption of the risk, to the plaintiff, when such burden of proof on motion and trial rests upon the defendant; in all other areas of negligence, except slip and fall cases, the defendant has the burden of proof as to affirmative defenses. Alterman never reversed the pre-existing body of case law which placed the burden of proof for an affirmative defense on the defendant. The elements of the affirmative defense of contributory negligence include the duty to exercise ordinary care to discover a patent danger, i.e., the defendant’s negligence or a danger created by another, to exercise ordinary care to avoid the danger when known or should have been known, and the opportunity to avoid the danger. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991); Bowman v. Richardson, 176 Ga. App. 864, 865 (338 SE2d 297) (1985).

The defendant carried its burden of proof on summary judgment to make out all of the elements of the affirmative defense of contributory negligence as a prima facie affirmative defense. Under OCGA § 9-11-56 (e) the burden of coming forward with evidence to show a material issue of fact for jury determination as to such defense shifted to the plaintiff; the plaintiff failed to create a material issue of fact as to any element of the defense of contributory negligence. Therefore, summary judgment was appropriate as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided September 4, 1997

Reconsideration denied September 12, 1997

Robert P. McFarland, for appellant.

Chambers, Mabry, McClelland & Brooks, Robert M. Malcom, Emory S. Mabry III, for appellee.


text:
    A97A1223.
    RODGERS v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    (492 SE2d 268)
   Blackburn, Judge.

Kevin J. Rodgers appeals the trial court’s grant of summary judgment in favor of his uninsured motorist carrier, St. Paul Fire & Marine Insurance Company (St. Paul), in his suit for breach of contract. Rodgers filed his action after St. Paul denied under-insured motorists benefits to him following his settlement with the tortfeasor by execution of a general release. Rodgers was injured when his truck collided with a car driven by an under-insured motorist, Randall McClain. After negotiating a settlement with McClain’s insurer for the limits of McClain’s policy and executing a general release, Rodgers sought and was refused under-insured motorist benefits under his policy with St. Paul based upon the general release. Rodgers’ breach of contract suit against both McClain and St. Paul ensued. Summary judgment was granted as to McClain, but Rodgers did not appeal this portion of the court’s ruling. He instead appeals the trial court’s grant of summary judgment to St. Paul. We affirm.

On appeal from a trial court’s grant of summary judgment, the standard of review by this Court is a de novo review of the evidence. Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996). In order to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts and inferences reasonably drawn therefrom, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Gentile, supra at 736-737.

1. Rodgers claims the trial court erroneously relied upon Darby v. Mathis, 212 Ga. App. 444 (441 SE2d 905) (1994), when it granted summary judgment to St. Paul. Rodgers also contends that Darby misconstrues the legislative intent of OCGA § 33-24-41.1. We cannot agree.

The facts in Darby are similar to the present case. In Darby, following an automobile collision, the Darbys sued Mathis for damages incurred in the collision. They subsequently settled their claims and executed a general release in favor of Mathis and his liability insurance carrier for $15,000. Darby, supra at 444. Mathis and the Darbys’ own uninsured motorist insurer, Southern Guaranty, then moved for summary judgment based on the release, and the trial court granted the motions. Id.

This Court examined the law of other jurisdictions regarding the liability of a party’s uninsured motorist carrier where the party executes a general release in favor of the uninsured motorist, and determined that after the execution of a general release, the Darbys were no longer “legally entitled” to recover from Mathis. Id. at 447. Furthermore, we adopted therein the reasoning that “[w]hen the release was signed, the uninsured motorist carrier was also released as a matter of law because of the derivative nature of the insurance company’s liability. Once the plaintiff released all claims against the tortfeasor, there is no basis of liability on which the defendant insurance company can be held responsible under the terms of the policy.” (Punctuation omitted.) Id. at 446. In light of the Darbys’ general release of Mathis and the wording of their policy with Southern Guaranty, summary judgments for both Mathis and Southern Guaranty were affirmed. We did note, however, that “a pro tanto or partial release expressly reserving [certain] causes of action against Mathis would avoid this result.” Id. at 447.

Rodgers’ contention that Darby misconstrues OCGA § 33-24-41.1, the applicable statute in this case, is without merit. Neither the 1992 version of the statute nor the 1994 amendment negatively impact the analysis of Darby. The statute allows a claimant like Rodgers to accept the limits of the other motorist’s policy, execute a limited release of that party and its insurer, and still retain the right to pursue his own insurer for other available coverage — here, under-insured motorist benefits. The statute clearly and repeatedly refers to a limited release, even in its title, and in that manner reflects the reasoning of Darby with respect to “the derivative nature of the insurance company’s liability.” (Punctuation omitted.) Darby, supra at 446.

The limited release provision of OCGA § 33-24-41.1 does not conflict with the requirement that judgment be obtained from the uninsured motorist before proceeding against an uninsured motorist carrier. Under OCGA § 33-24-41.1 (b) (2), the injured party may provide a limited release to the tortfeasor, releasing him from all personal liability “except to the extent other insurance coverage is available which covers such claim or claims.” (Emphasis supplied.) The statute further clearly states that such a limited release “shall not . . . [r]elease the tort-feasor from personal liability to the extent that there is other insurance in effect which covers the said claim or claims.” OCGA § 33-24-41.1 (d) (4).

Under these statutory provisions, the injured party who executes such a limited release may still proceed to judgment against the tortfeasor. Such a release under those conditions would not bar proceeding against the uninsured motorist carrier. The limited release therefore does not affect the injured party’s ability to obtain a judgment against the tortfeasor, but merely limits the tortfeasor’s personal liability to the amount of available insurance coverage.

In this case, Rodgers wrote St. Paul’s representative two separate letters announcing his intention to settle with McClain’s insurance company, Safeway. He further stated he would release his claims against McClain pursuant to the provisions of OCGA § 33-24-41.1, and in so doing would retain the ability to pursue St. Paul for under-insured motorist benefits under his policy. Instead, Rodgers, who is an attorney, executed a full and general release of his claims, reserving nothing. As a result, when he attempted to collect from St. Paul, St. Paul denied the claim on the basis that its liability was derivative of McClain’s, and McClain was no longer subject to liability.

In light of the language contained in Rodgers’ policy with St. Paul, the clear requirements of OCGA § 33-24-41.1, and the reasoning of Darby, supra, Rodgers defeated his ability to collect under-insured motorist benefits from St. Paul by executing the general release rather than the limited release he had advised St. Paul he was going to execute. Just as in Darby, Rodgers’ rights to collect from St. Paul under the uninsured/under-insured portion of his policy were dependent upon his legal entitlement to receive damages as a result of an uninsured driver’s negligence. The legal entitlement language is contained not only in Rodgers’ policy, but, as Darby notes, is drawn directly from the uninsured motorist statute itself, OCGA § 33-7-11. See OCGA § 33-7-11 (a) (1). Rodgers is not legally entitled to any damages from McClain after he fully released McClain, and therefore he cannot be entitled to any under-insured motorists benefits under his policy with St. Paul. For this reason, summary judgment was proper.

Additionally, Rodgers’ reliance upon Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646 (482 SE2d 325) (1997), is misplaced. In Duncan, the Supreme Court discussed the complete compensation rule, “which requires that an insured be completely compensated for his losses before his insurer can exercise a right of subrogation or reimbursement.” Id. That court considered the applicability of that rule to an insurance policy provision requiring an insured to reimburse his insurer for “amounts paid under medical payments coverage,” and concluded that “the complete compensation rule does limit the applicability of such a reimbursement provision” in certain circumstances. Id. In this case, by contrast, the complete compensation rule is not at issue. St. Paul is not seeking reimbursement or subrogation for amounts paid to Rodgers under medical payments coverage or any other coverage. Duncan therefore provides no support for Rodgers’ position, and summary judgment was appropriately granted.

2. Rodgers argues in several enumerations of error that due to St. Paul’s failure to respond to his letters regarding settlement and release issues, summary judgment was improper. Rodgers contends that St. Paul’s silence amounted to an admission of the propriety of his settling the case, and estopped St. Paul from denying his benefits even though he executed the full release. He further contends that such conduct amounted to a failure by St. Paul to act in good faith and deal fairly with its insured, with the result that Rodgers’ intentions as stated in the letters controlled the parties’ contract.

The record indicates that in his letters to St. Paul, Rodgers stated that he intended to accept McClain’s policy limits pursuant to OCGA § 33-24-41.1, release Safeway and McClain, and pursue the balance of his damages with St. Paul. He informed St. Paul that if it disagreed or required special language to be included in the release, it should notify him promptly or be bound to pay him benefits despite his execution of a release pursuant to OCGA § 33-24-41.1. The evidence is uncontroverted that St. Paul did not respond to these letters.

Rodgers’ contentions with respect to St. Paul’s failure to respond are without merit. Had Rodgers in fact executed a release pursuant to OCGA § 33-24-41.1, the release would have been limited in accordance with the statute. Rodgers’ claims against McClain and St. Paul therefore would have survived the execution of the release. Rodgers’ letter to St. Paul required no response, and St. Paul is not bound by Rodgers’ misunderstanding of the law. Rodgers has totally failed to demonstrate any breach of its duty by St. Paul much less bad faith or unfair dealing.

3. OCGA § 33-6-34, regarding unfair insurance claims settlement practices, contains no private cause of action. See OCGA § 33-6-37. Therefore, we need not address Rodgers’ argument that St. Paul violated this section in some manner by failing to respond to his two letters, and that this alleged violation caused him harm. As determined in Division 2, supra, Rodgers’ harm resulted from his failure to act in accordance with his stated intentions and the requirements of OCGA § 33-24-41.1 and not with St. Paul’s failure to respond.

4. Rodgers has presented no evidence in support of his claims that the trial court misconstrued his insurance policy by applying the wrong provision and drew inferences in favor of St. Paul on the motion for summary judgment. The trial court entered no findings of fact and conclusions of law, and the grant of summary judgment itself is not evidence that the trial court acted as Rodgers contends.

Decided September 12, 1997

Robert E. Richardson, for appellant.

Crim & Bassler, Mitchell S. Evans, Tittsworth, Grabbe & Spillers, Charles L. Spillers, for appellee.

5. Rodgers argues that the trial court erred in failing to apply the law of releases as stated in Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992). In Lackey, the Supreme Court modified its earlier decision on releases, see Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987), and held that “[o]nly those parties named in the release will be discharged by that instrument.” Lackey, supra at 186. Rodgers contends that St. Paul was not named in his release with McClain, and therefore the release cannot operate to discharge St. Paul.

However, this broad language from Lackey has no application to the facts of this case. Unlike Lackey, which condemned the release of all joint tortfeasors where a written release named only one joint tortfeasor, St. Paul was not a joint tortfeasor in this case. Instead, as stated in Division 1, St. Paul’s liability was derivative of, and not in addition to or in concert with, McClain’s liability. Because St. Paul could not have any liability separate from McClain’s, the extinguishment of McClain’s liability through the general release necessarily and unavoidably also extinguished St. Paul’s liability. This is so notwithstanding the fact that St. Paul was not named in Rodgers’ release to McClain. Rodgers’ argument is without merit, and the trial court did not err in granting summary judgment for St. Paul.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A1548.
    In the Interest of D. L., a child.
    (492 SE2d 273)
   Blackburn, Judge.

D. L. appeals the juvenile court’s transfer of his case to superior court. When he was 16, D. L. allegedly shot a man in the stomach, an offense which, if he were an adult, would constitute aggravated assault. After D. L. turned 17 years old, the juvenile court entered an order closing his case without holding an adjudicatory hearing. After D. L. turned 18, however, the juvenile court reopened the case and transferred it to superior court following a transfer hearing. Because he had turned 18 by the time of the transfer hearing, D. L. contends that the transfer was void due to the juvenile court’s lack of jurisdiction over him. He also claims that the transfer hearing violated his due process rights, and contends that the juvenile court erred in reopening his case after having closed it. For the reasons set forth below, we affirm.

1. Although he concedes that the juvenile court had jurisdiction over him at the time the petition was filed, D. L. argues that it lost jurisdiction over him when he turned 17. For this reason, he contends the transfer of his case to superior court is void.

The facts show that D. L. was born on October 2, 1978, and was 16 years old when the subject offense occurred on December 7, 1994. The delinquency petition was filed shortly thereafter. Following repeated continuances of his adjudicatory hearing, the juvenile court eventually entered an order closing the case on March 7, 1996. The order states that the case was closed because D. L. was incarcerated in the state prison system on an unrelated matter, and because he had turned 17 years old. However, nine months later, after D. L. had turned 18, the juvenile court reopened the case for the purpose of holding a transfer hearing pursuant to OCGA § 15-11-39. After this hearing, on March 6, 1997, the court entered an order transferring D. L.’s case to superior court.

(a) In support of his position that the juvenile court lost jurisdiction over him the day he turned 17, D. L. relies upon the definition of “child” contained in OCGA § 15-11-2 (2) as a limitation on the jurisdiction of the juvenile court. Pursuant to subsection (A) of that Code section, “child” is defined as any individual who is under the age of 17. See OCGA § 15-11-2 (2) (A). Pursuant to OCGA § 15-11-2 (2) (B), “child” also includes someone who is under the age of 21, but who committed an act of delinquency before turning 17, and has been placed under the juvenile court’s supervision or on probation. D. L. correctly argues that he did not qualify as a child under either of these definitions at the time of the transfer hearing.

However, it is not, as D. L. alleges, the age of the child at the time of the transfer hearing which is determinative of the juvenile court’s jurisdiction, but the age of the child at the time the offense was committed which determines whether or not the juvenile court has jurisdiction. “Under [OCGA §§ 15-11-5 and 15-11-2], the juvenile court has jurisdiction if the accused is under the age of seventeen at the time the offense is committed.” Edmonds v. State, 154 Ga. App. 650 (269 SE2d 512) (1980). Because he was 16 when he allegedly-committed what would have been aggravated assault had he been an adult, the juvenile court had exclusive original jurisdiction over D. L.’s case. See OCGA § 15-11-5. The juvenile court exercised this jurisdiction when it initiated proceedings against D. L. by filing a petition alleging delinquency, see OCGA § 15-11-11 (4), and once exercised, the only means by which the juvenile court could have divested itself of jurisdiction on these facts was by virtue of a transfer hearing held pursuant to OCGA § 15-11-39. That Code section constitutes “the only means by which the juvenile court can divest itself of jurisdiction under the Juvenile Code.” (Punctuation omitted.) In the Interest of D. B., 187 Ga. App. 3, 4 (369 SE2d 498) (1988).

These principles are illustrated in In the Interest of K. L. L., 204 Ga. App. 320 (419 SE2d 312) (1992), a case procedurally similar to D. L.’s. In K. L. L., the juvenile allegedly committed acts when he was 15 which, if he had been an adult, would have constituted the crimes of child molestation and aggravated child molestation. Id. at 320-321. Petitions alleging delinquency were filed in the juvenile court, and that court held a transfer hearing. Although at the time of such hearing K. L. L. was over the age of 17, the juvenile court retained jurisdiction over him for the offenses he allegedly committed prior to turning 17. The juvenile court transferred several of the petitions to superior court, and this Court affirmed. Id. at 321-322 (2).

Just as in K. L. L., the juvenile court in this case retained jurisdiction over D. L. past his seventeenth birthday for the offense he allegedly committed as a juvenile. Cf. W. F. v. State of Ga., 144 Ga. App. 523 (241 SE2d 631) (1978) (juvenile court held transfer hearing for 19-year-old who had allegedly committed offenses at the age of 16). An examination of OCGA § 15-11-39, the transfer statute, illustrates that this result is the only one contemplated by the Code. Subsection (d) of that statute provides that “[n]o child, either before or after reaching 17 years of age, shall be prosecuted for an offense previously committed unless the case has been transferred as provided in this Code section.” If, as D. L. argues, the juvenile court automatically lost jurisdiction upon a child’s turning 17, then by virtue of OCGA § 15-11-39 (d), a gap would exist in the law whereby a juvenile whose case had not been adjudicated or transferred before he or she reached 17 would be immune from prosecution. Such is neither the intent nor the meaning of the law. Therefore, despite his having turned 18 before the transfer hearing was held, it is clear that the juvenile court retained its jurisdiction over D. L. until the entry of its order transferring the case to superior court.

(b) D. L. also argues that the juvenile court had no jurisdiction over him because at the time of the transfer hearing, he was no longer a resident of the county in which the juvenile court sat. However, the venue provision of the juvenile code provides that proceedings may be commenced either in the child’s county of residence or, in delinquency actions, in the county in which the alleged offenses occurred. See OCGA § 15-11-15 (a). D. L. concedes that he was a resident of Fulton County, Georgia, when the Fulton County Juvenile Court commenced proceedings against him by filing a petition. It is also undisputed that the acts alleged to be delinquent behavior occurred in Fulton County. Accordingly, D. L.’s argument is without merit, and the change in his county of residence did not bar the juvenile court’s exercise of its jurisdiction over him.

2. D. L. argues that the transfer hearing violated his right to due process. Specifically, he claims that his right to a fair hearing was violated when the State and the juvenile court waited two years to hold his transfer hearing. According to D. L., because the State and the juvenile court waited until he was an adult incarcerated in the state prison system on an unrelated matter before holding the hearing, a finding that he was not amenable to treatment as a juvenile became inevitable, making the transfer of his case to superior court virtually automatic. D. L. seems to contend that the delay caused by the State and the juvenile court resulted in his being denied the opportunity to proceed through the juvenile system.

“At the outset, we acknowledge that there must be scrupulous adherence to due process requirements in juvenile court proceedings.” (Punctuation omitted.) In the Interest of B. A. H., 198 Ga. App. 713, 714 (1) (402 SE2d 791) (1991). Although it cannot be said as a matter of law that due process may never be violated in a situation such as this one, where nearly two years elapse between the filing of the petition and the transfer hearing, it is clear that no due process violation warranting reversal occurred in this case.

Central to D. L.’s due process argument is the presupposition that had the State and the juvenile court dealt with his case when he was 16, the court would have found that he was amenable to treatment in the juvenile system, precluding a transfer. However, the transcript of the transfer hearing clearly indicates that no such decision would have been forthcoming. In reaching the determination that D. L. was not amenable to rehabilitation in the juvenile system, the juvenile court relied heavily upon D. L.’s lengthy juvenile history and the escalating violence of his offenses. Evidence was presented that beginning at approximately age 12, D. L. was adjudicated delinquent numerous times for offenses including theft by taking a motor vehicle, driving without a license, theft by taking, simple battery, entering an auto, theft by receiving stolen property, and obstruction of a police officer. The juvenile court noted that in light of these earlier offenses, the juvenile system had nothing to offer D. L. with respect to rehabilitation for the alleged aggravated assault, as the system had unsuccessfully attempted to rehabilitate him from as early as ten or eleven years old. Finally, and most importantly, the juvenile court specifically found that “even at 16, when this offense was [allegedly] committed, disregarding anything about where he is right now, about his present record, even at that time ... he would not [have been] amenable to any kind of treatment we offered here.”

Decided September 12, 1997.

J. Robert Joiner, for appellant.

Paul L. Howard, Jr., District Attorney, Juliette O. W. Scales, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

Therefore, assuming arguendo that some due process violation occurred by delaying D. L.’s transfer hearing, any such violation was rendered harmless by the court’s finding that even had the hearing been held when D. L. was 16, shortly after the petition was filed, the result would have been the same. Accordingly, on the facts of this case, D. L.’s argument is without merit, and reversal is not warranted on due process grounds.

3. D. L. argues that the juvenile court erred by holding a transfer hearing and entering a transfer order after it had closed his case. He contends that after the juvenile court entered an order closing his case, such order was never reversed or modified, and therefore constituted an end to the litigation. Inasmuch as the record indicates that following a hearing on the closure issue, the juvenile court reopened the case, D. L.’s arguments in this regard are without merit.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       After receiving one extension of time in which to file its brief, this Court twice ordered the State to file such brief by May 19, 1997, which deadline the State failed to meet.

       OCGA § 15-11-2 (2) (B) is inapplicable because, at the time of the transfer hearing, although D. L. was under 21 and had allegedly committed an act of delinquency before turning 17, he was not otherwise under the juvenile court’s supervision or on probation at the time.


text:
    A97A1867.
    SMITH v. THE STATE.
    (492 SE2d 271)
   Blackburn, Judge.

A jury convicted Darron Smith of rape, statutory rape, child molestation, and enticing a child for indecent purposes. On appeal, he contends that his conviction must be reversed because his character was improperly placed into evidence and the trial court erred in charging the jury. For the reasons set forth below, we affirm the conviction.

1. Smith claims that the testimony of a ten-year-old witness improperly placed his character into evidence. This child, who was not a victim of the crimes charged, testified that Smith was drunk on the night in question. Smith objected to this testimony, and a conference was held outside the jury’s presence. The trial court ruled that the witness was incompetent to evaluate Smith’s inebriation and limited the State’s inquiry on this issue to whether the witness had smelled alcohol on Smith’s person. After the trial court instructed the jury to disregard the witness’ comments regarding Smith’s intoxication, the witness testified that she had not smelled alcohol on Smith. Smith at no time made a motion for mistrial and did not object following the judge’s curative instructions.

Decided September 12, 1997.

Paige A. Pastor, for appellant.

“[T]he trial court’s . . . ruling sustained defendant’s [objection] and . . . [struck] that testimony which had been presented before the jury. There was no further objection or other request for action following this ruling and the curative instructions. Under these circumstances there is nothing preserved for appellate review.” Apperson v. State, 225 Ga. App. 804 (484 SE2d 739) (1997). See also Jolley v. State, 189 Ga. App. 450, 451 (3) (375 SE2d 903) (1988). Furthermore, “[t]his is not a case where the statement was so prejudicial that no instruction of the trial court could eradicate the statement from the jurors’ minds. Accordingly, no reversible error exists.” (Citation omitted.) Tidwell v. State, 219 Ga. App. 233, 237 (4) (464 SE2d 834) (1995).

2. Smith claims that the trial court improperly charged the jury on voluntary intoxication. He argues that because the testimony regarding his drunkenness was struck and because the witness testified that she did not smell alcohol on his person, the evidence did not support a charge on voluntary intoxication. The record indicates that the court gave this charge on its own motion, and Smith objected to the charge at trial.

Smith is correct that the evidence did not support such a charge. However, “[although there is no evidence that defendant was intoxicated, an erroneous charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal. We do not find the charge harmful or prejudicial under the evidence presented, and this enumeration of error is without merit.” (Citation and punctuation omitted.) Thurston v. State, 186 Ga. App. 881, 882 (2) (368 SE2d 822) (1988) (no error where court incorrectly charged voluntary intoxication despite lack of evidence that defendant was intoxicated or had consumed alcohol).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

J Tom Morgan, District Attorney, Barbara B. Conroy, Jacqueline S. Hardy, Lee Anne Mangone, Priscilla N. Carroll, Assistant District Attorneys, for appellee.