text:
    A91A1591.
    CONNER v. THE STATE.
    (422 SE2d 872)
   Pope, Judge.

Defendant James Conner was convicted of driving “under the influence of alcohol to the extent that it is less safe for the person to drive.” OCGA § 40-6-391 (a) (1). He appeals from his conviction.

The undisputed facts show that an officer was called to the scene of an overturned vehicle in a rural area of Clayton County at 10:19 p.m. on August 7, 1990. Only one car was involved in the accident. The driver of the vehicle was not at the scene when the officer arrived. Approximately ten minutes after the officer’s arrival, a van pulled up with defendant inside. The officer approached the van and learned that defendant was the driver of the overturned vehicle. During a conversation with defendant, the officer detected the smell of alcohol on defendant’s breath. The officer again detected the odor of alcohol on defendant during a subsequent conversation. Defendant was treated at the scene for minor injuries, but declined to be transported to the hospital. The officer requested that defendant take an alcosensor test which indicated positive for the presence of alcohol. The defendant was placed under arrest and transported to the Clayton County jail where an Intoximeter 3000 test for blood alcohol content was performed. The result of this test was .14 grams.

Defendant does not contest the fact that he had been drinking alcohol before the test was administered. Rather, he argues he did not operate a motor vehicle under the influence of alcohol. He testified that he left the scene of the accident and walked to a nearby acquaintance’s house. While at the house he contacted his brother-in-law who came over with five 16 ounce beers. According to the defendant’s version of the facts, he consumed four of these beers at this time and was then driven to the scene of the accident.

The central dispute at trial involved what time the accident occurred. According to the defendant, the accident occurred at approximately 8:30 p.m. to 9:00 p.m. The arresting officer was summoned to the scene at 10:19 p.m. and arrived there at 10:30 p.m. No eyewitness to the accident testified as to the time at which it occurred.

1. Defendant argues the DUI testing scheme is unconstitutional in application because a presumption of scientific reliability of the Intoximeter 3000 treats similarly situated defendants differently on the basis of individual wealth. This court does not have jurisdiction to decide whether the DUI test scheme is unconstitutional. 1983 Ga. Const., Art. VI, Sec. VI, Par. VI. This case was originally filed in this court and by order dated December 31, 1991, we transferred this case to the Supreme Court on the basis that exclusive jurisdiction of this case was vested in the Supreme Court because of the constitutional issue raised by defendant. On January 17, 1992, the Supreme Court ordered that this case be transferred back to this court. “Inasmuch as all cases involving the constitutionality of any state law are solely within the jurisdiction of our Supreme Court and this case was transferred here, we deem that court to have determined that the constitutional issue was not properly raised or was otherwise not before the court on appellate review. Even if so raised, it was not meritorious.” (Citations and punctuation omitted.) In re J. S. S., 175 Ga. App. 361, 364 (1) (333 SE2d 417) (1985).

2. Defendant asserts the State did not meet its burden of establishing the Intoximeter 3000 used to test the defendant’s blood-alcohol content was approved by the Department of Public Safety. In order to be admissible, a chemical analysis “shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.” OCGA § 40-6-392 (a) (1).

The State may meet its burden by introducing into evidence a copy of the certificate to operate the Intoximeter 3000 issued by the Department of Public Safety to the individual conducting the test, which bears “the manufacturer, model and name of the instrument upon which the tests [were] performed.” Fowler v. State, 200 Ga. App. 505 (1) (408 SE2d 449) (1991). See Smitherman v. State, 153 Ga. App. 322 (265 SE2d 119) (1980). The prosecution introduced the certificates of both the officer who administered the test for the current charge and the certificate of the officer who performed the test on defendant for the prior similar transaction. Therefore, the trial court properly admitted the results.

3. The defendant argues certain statements made by the defendant during a custodial interrogation before defendant had been read his Miranda rights should be suppressed. To determine if defendant was in custody at the time he made the statements in question, we must decide whether a seizure within the meaning of the Fourth Amendment had occurred. “[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ California v. Hodari D., 499 U. S. _, ___ ([111 SC 1547, 1551, 113 LE2d 690]) (1991), the encounter is consensual and no reasonable suspicion is required. . . . ‘Only when the officer, by means of actual physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” Florida v. Bostick, 501 U. S. ___ (111 SC 2382, 2386, 2388, 115 LE2d 389) (1991). Defendant cites testimony from the arresting officer that he had planned to arrest defendant at the time of the initial conversation with defendant. Defendant was not arrested, however, until after his conversation with the officer and his refusal to be transported to the hospital. “[T]he subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted. United States v. Mendenhall, 446 U. S., at 554, n.6 [100 SC 1870, 64 LE2d 497] (opinion of Stewart, J.).” Michigan v. Chesternut, 486 U. S. 567, 575, n. 7 (108 SC 1975, 100 LE2d 565) (1988). Defendant has not shown that the officer ever conveyed his intentions to him, and therefore the police officer’s statement is irrelevant to our determination of whether a seizure had already occurred.

Defendant has shown no competent evidence in the record, and we find none, to support the conclusion that the defendant was in custody prior to his confession. Therefore, the trial court properly admitted the testimony concerning defendant’s statement to the arresting officer.

4. Defendant contends the trial court erred in admitting evidence of his conviction for driving under the influence which occurred two years prior to this arrest. Two conditions must be satisfied before similar transactions evidence is admissible: There must be (1) “some evidence establishing that the independent crime was committed by the defendant”; and (2) “ ‘sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.’ ” Chastain v. State, 260 Ga. 789, 790-791 (400 SE2d 329) (1991). There are substantial similarities between the prior offense and the current charges: (1) a near accident was involved in the prior offense while an actual accident was involved in the current offense, (2) both offenses occurred in rural portions of Clayton County, (3) both incidents occurred at approximately the same time of the evening, and (4) the results of both Intoximeter tests revealed similar alcohol concentration levels. Accordingly, we hold the trial court properly determined that the transactions were sufficiently similar so as to make the existence of the prior conviction probative of bent of mind or course of conduct in the current case.

5. Defendant contends there was insufficient evidence in the record for a rational trier of fact to find defendant guilty beyond a reasonable doubt as required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). First, the State must show that defendant had been drinking prior to driving. While there is conflicting evidence concerning whether the defendant had been drinking when thé accident occurred, or, as the defendant contends, he only consumed alcohol after the accident while at the nearby house of an acquaintance, there is sufficient evidence to support the jury’s verdict that the defendant had been drinking prior to the accident. The officer arrived at the accident scene at 10:30 p.m. At that time, he noted that the accident scene appeared “fresh.” This statement was based on his observance that fluids were still leaking from the engine when he arrived. Although the officer admitted he never actually touched the engine, he testified that the engine was still warm when he first surveyed the wreck. On the other hand, the defendant testified that the accident occurred between 8:30 p.m. and 9:00 p.m. and that he began drinking afterwards. Matters of witness credibility are within the purview of the jury. The jury could reasonably have chosen to believe the facts as recounted by the officer over those of the defendant. “The obligation to weigh the evidence and to determine witness credibility rests with the jury. ‘This court considers only the sufficiency of the evidence. . . .’ [Cit.]” Ailion v. Wade, 190 Ga. App. 151, 155 (378 SE2d 507) (1989).

Decided September 8, 1992

Reconsideration denied September 25, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, for appellant.

Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

The State must also show that defendant was a less safe driver as a result of the drinking. There is sufficient evidence to support the jury finding that defendant was a less safe driver. The officer testified that “he [defendant] was under the influence of alcohol at the time of the accident and was a less safe driver during that time.” Furthermore, it is undisputed that defendant crossed over the left lane of traffic, ran off the road, and damaged his vehicle. This is sufficient evidence for a jury to find beyond a reasonable doubt that the defendant in this case was intoxicated “to the extent that it is less safe for [him] to drive.”

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

       The arresting officer testified that defendant initially denied having anything to drink. Subsequent to the alcosensor test which indicated positive for alcohol, defendant allegedly admitted having four drinks. Defendant testified he had no drinks prior to driving, but after the accident, he drank four 16 ounce beers at the nearby home of an acquaintance before he returned to the accident scene.

       The prior incident occurred at 9:30 p.m. while the current incident occurred between 8:30 p.m. and 10:19 p.m.

       The prior offense involved a .13 blood alcohol content while the current offense involved a .14 blood alcohol content.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A1226.
    SAMUELSON v. LORD, AECK & SERGEANT, INC. et al.
    (423 SE2d 268)
   Pope, Judge.

Plaintiff Kyle Joan Samuelson brought this action against defendants LRE Engineering, Inc. (hereinafter “engineers”), and Lord, Aeck & Sergeant, Inc. (hereinafter “architects”), as well as several other defendants, claiming defendants are liable for the injuries she received when she was struck by an automobile while jogging. Both defendants moved for dismissal of the complaint for failure to state a claim. Additionally, defendant architects moved, in the alternative, for judgment on the pleadings. The trial court granted the motions and plaintiff appeals.

Plaintiff alleges in the complaint that she was jogging on the grassy shoulder of Spalding Drive in Gwinnett County headed east on the south side of the road. When she reached the post office property at 5600 Spalding Drive the shoulder was replaced by an unmarked paved turn lane. She continued jogging in the turn lane and was struck from behind by an automobile also travelling east in the turn lane and sustained severe and disabling injuries. Plaintiff alleges defendants engineers and architects were responsible for the site design of the post office which eliminated the shoulder adjacent to the road and created in its place a sloping bank with an above-ground manhole which could not be used by pedestrians. Plaintiff alleges defendants were negligent in designing the site, that the design constitutes negligence per se because it does not conform to applicable Gwinnett County roadway development standards and that the design constitutes a nuisance. Defendants argue the complaint was rightly dismissed because the complaint alleges they committed professional malpractice but the expert affidavits filed in support of the complaint fail to meet the minimum requirements of OCGA § 9-11-9.1 and also because the complaint fails to state a claim upon which relief can be granted. Defendant architects further argue that the pleadings and admissions in judicio demonstrate that plaintiff is not entitled to recover and therefore, the trial court’s grant of judgment on the pleadings was also proper.

1. First we address the sufficiency of the expert affidavits. The affidavit of a licensed engineer was filed in regard to the complaint against defendant engineers and the affidavit of a licensed architect was filed in regard to the complaint against defendant architects. The affidavit of the engineer recited that the affiant had reviewed certain documents concerning the design of the site and contained the opinion that in the execution and construction of the project, defendant engineers “failed to follow generally accepted and customary engineering practices and principles and failed to exercise that degree of care generally employed by engineering professionals in the field of civil engineering under similar conditions and like surrounding circumstances . . . .” The expert went on to opine that defendant engineers “among other things, might have recommended that a retaining wall be constructed along the frontage of the . . . property in such a way as to permit continuous pedestrian traffic along Spalding Drive . . . ; and further that [defendant engineers] failed to design such a wall or other appropriate safe alternative.” The affiant also asserted he had reviewed the facts alleged in the complaint and, in his opinion, “such facts, if true, constitute professional malpractice.” The affidavit of the architect was virtually identical except it referred to the standards and practices of architects.

Citing Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991), defendants argue the affidavits were insufficient. In Cheeley, the Georgia Supreme Court held that because the expert affidavit stated merely that the errors and omissions set forth in the complaint constitute malpractice, without setting forth in the affidavit itself “at least one negligent act or omission claimed to exist and the factual basis for each such claim,” as required by OCGA § 9-11-9.1, then the affidavit was insufficient. Defendants argue that the affidavits in this case do not assert they were negligent in failing to provide a sidewalk or traversable shoulder and that the assertion that the facts alleged in the complaint constitute malpractice is insufficient to meet the requirements of OCGA § 9-11-9.1.

The affidavits in this case offer a suggestion of what the defendants “might” have designed under the circumstances. Reading each affidavit in its entirety, however, it is obviously the affiant’s opinion that the failure to provide the retaining wall they might have designed “or other appropriate safe alternative” to permit continuous pedestrian traffic along the road in front of the premises constitutes negligence and a failure to meet the appropriate standard of care. When the sufficiency of an expert affidavit is questioned by a motion to dismiss, the affidavit, like a complaint, should “ ‘be construed in the light most favorable to the plaintiff with all doubts resolved in [her] favor even though unfavorable constructions are possible.’ ” (Citation omitted.) Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992). Accordingly, in Bowen, this court held the affidavit sufficient even though it did not specifically opine that the procedures employed by the defendant doctor were negligent because it did contain the opinion that other medical procedures are “ordinarily” preferred and that the surgical procedure employed by the defendant was “premature” and caused injury to the plaintiff. Likewise, in this case the opinion that another specified design “might” have been used and that the failure to use such a design or another appropriate alternative constituted malpractice is sufficient to set forth a negligent act or omission as required by the affidavit statute. Thus the trial court erred in granting defendants’ motions to dismiss on the ground that the expert affidavit was insufficient.

2. Having determined that the affidavit is sufficient to withstand defendants’ motion to dismiss, we next address whether the complaint itself states a cause of action against these defendants.

(a) Defendants first argue the complaint was rightly dismissed because the complaint shows no privity existed between the plaintiff and defendants. The general rule applied by the Georgia courts is that one cannot be held liable for professional negligence to a party not in privity with the professional. See, e.g., Howard v. Dun & Bradstreet, 136 Ga. App. 221 (220 SE2d 702) (1975). “[T]he trend in Georgia^ however,] has been to relax the rule of strict contractual privity in malpractice actions, recognizing that under certain circumstances, professionals owe a duty of reasonable care to parties who are not their clients.” Driebe v. Cox, 203 Ga. App. 8, 9 (1) (416 SE2d 314) (1992). Exceptions to the privity rule have been carved out where injury to third parties is foreseeable. For example, in cases involving negligent misrepresentation of facts, liability extends “to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. . . . [Otherwise] there will be no liability in the absence of privity, wilfulness or physical harm or property damage.” Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 682 (300 SE2d 503) (1983).

In cases alleging negligent design by an architect, an exception to the rule against liability to third parties is recognized when the complaint alleges a defect which is imminently dangerous to third persons. “There are . . . well recognized exceptions to [the] general rule [that an independent contractor is not liable to third persons for injury suffered as a result of the work once it is turned over to the owner]. One such exception is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous. Another is that the contractor is liable where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons.” Cox v. Ray M. Lee Co., 100 Ga. App. 333, 335 (111 SE2d 246) (1959). In Cox, this court reversed the trial court’s dismissal of the complaint against a contractor and architect for bodily injuries allegedly sustained as a result of the dangerous design and construction of steps to a church building. Likewise, in Hunt v. Star Photo Finishing Co., 115 Ga. App. 1 (1) (153 SE2d 602) (1967), a case brought for property damage due to the collapse of a roof, we recognized an exception to the general rule where the design of the roof was alleged to be so negligently defective as to be dangerous to third parties.

The exception to the privity rule for architectural defects which are imminently dangerous to third parties is consistent with the general law of torts in this state whereby “no privity is necessary to support a tort action; but, if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract . . . .” (Emphasis supplied.) OCGA § 51-1-11 (a). The legal duty owed by a professional need not arise out of a professional-client relationship but may arise “out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm.” Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982). “[I]n appropriate circumstances, a duty of care may be called for by contract and may be required by tort law at the same time, and where this is true plaintiff requires no privity to maintain a tort action.” Sims v. American Cas. Co., 131 Ga. App. 461, 479-480 (206 SE2d 121), aff’d, 232 Ga. 787 (209 SE2d 61) (1974). Independently of the contract to design a building or premises, an architect or engineer owes a general duty to use reasonable care not to harm third persons who, it is reasonably foreseeable, might be harmed by a negligent architectural design.

In this case the plaintiff alleges the site design was dangerous to pedestrians. We reject defendants’ argument that plaintiff’s complaint is barred because of an absence of privity between the‘parties. This case presents a factual situation which is an exception to the general rule requiring privity in order to impose liability for negligent performance of a contract because if plaintiff’s allegations of negligence are true, injury to a third party pedestrian, such as plaintiff, is reasonably foreseeable. Thus, the trial court erred in granting defendants’ motions to dismiss on the ground of lack of privity.

(b) Defendants next argue the complaint was rightly dismissed because the complaint fails to state a claim upon which judgment can be granted. “To state a cause of action for negligence in Georgia, it is necessary to establish the essential elements of duty, breach of that duty, and proximate causation, as well as damages, as a basis for liability for the injuries of another. [Cit.] It is well established that ‘the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. (Cits.)’ [Cit.]” Robertson v. MARTA, 199 Ga. App. 681, 682 (405 SE2d 745) (1991). We agree with defendants that no general duty exists at law to design a roadway (or in this case, the premises adjacent to the roadway) with a sidewalk or traversable shoulder. See Hamza v. Bourgeois, 493 S2d 112 (La. Ct. App. 1986). But see Berglund v. Spokane County, 103 P2d 355 (Wash. 1940). We take notice, as did the trial judge upon the hearing of the motions, that many roads and highways in this state make no specific provision for pedestrians. Instead, a statute exists to govern the acts of pedestrians walking on or along a roadway. OCGA § 40-6-96. In fact, that statute addresses the circumstance of pedestrians walking along roadways “[w]here neither a sidewalk nor a shoulder is available . . . .” Id. at subsection (c).

A duty to create a walkway for pedestrians may be created, however, by ordinance or by an accepted industry standard for a particular type of development. In fact, we decided in Division 1 of this opinion that the plaintiff’s expert affidavits alleged the defendants’ failure to provide a way to permit continuous pedestrian traffic in front of the premises was a failure to follow generally accepted practices of the architectural and engineering professions. Upon a motion for summary judgment defendants may be able to establish that the applicable ordinances and industry standards for the premises at issue in this case do not require a way for pedestrian traffic across the property. At this point in the proceedings of this case, however, it was premature to dismiss the complaint or to grant judgment to the defendants on the pleadings.

3. Plaintiff’s complaint also alleges negligence per se for the alleged violation of applicable county roadway and development standards. At the request of the trial court, at the hearing on defendants’ motions plaintiff submitted into the record a copy of the county ordinances she alleges were applicable to the design of the site at issue in this case. Defendants argue those ordinances show on their face that they apply only to subdivisions and thus are not applicable to the case at hand. However, the record is insufficient at this point to determine as a matter of law whether they are applicable. Pursuant to OCGA § 9-11-12 (c), when matters outside the pleadings are presented in a motion on the pleadings, the motion may be turned into a motion for summary judgment. However, this requires the motion to be treated by the court as one for summary judgment, with “all parties . . . given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.” The transcript of the motions hearing shows the parties and the trial court did not treat the motion as one for summary judgment and the trial court did not grant summary judgment but judgment on the pleadings, as requested by defendants. Again, at this point in the proceedings it was premature to grant judgment to defendants. Whether defendants are entitled to judgment on the claim of negligence per se may be determined only after the parties have had the opportunity to present additional evidence on the claim.

4. Finally, defendants argue they are entitled to judgment on the pleadings because the facts alleged in the complaint show plaintiff is barred from recovering by the open and obvious rule, the doctrine of assumption of the risk, the equal knowledge rule, the doctrine of avoidance, the doctrine of remote and unforeseeable consequences and because the facts alleged in the complaint show defendants cannot be found to be the proximate cause of plaintiff’s injuries. It is our opinion that issues of fact remain at this point in the proceedings which preclude the grant of judgment on these defenses.

Decided September 8, 1992

Reconsideration denied September 25, 1992

Cashin, Morton & Mullins, Harry L. Cashin, Jr., Noel B. Mc-Devitt, Jr., Raymond C. Mayer, Davis, Gregory & Christy, Hardy Gregory, Jr., Crim & Bassler, Candler Crim, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Lisa M. Smith, Robert W. Browning, Pursley, Howell, Lowery & Meeks, Paul A. Howell, Jr., Bryan A. Vroon, for appellees.

Judgment reversed.

Carley, P. J., and Johnson, J., concur in Divisions 1, 2, 3, and in judgment.

       We note the case at hand involves a claim for personal injury which, the Rhodes-Haverty opinion implies, would not require privity in any event.

       This result is consistent with the general trend in other states toward abolishing the privity requirement for negligence actions against architects involving personal injury and replacing it with the rule of foreseeability. See, e.g., Karna v. Byron Reed Syndicate, #4, 374 FSupp. 687 (D. Neb. 1974); Mallow v. Tucker, Sadler &c., 54 Cal. Rptr. 174 (Ca. Ct. App. 1966); Montijo v. Swift, 33 Cal. Rptr. 133 (Cal. Ct. App. 1963); Parliament Towers Condominium v. Parliament House Realty, Inc., 377 S2d 976 (Fla. Dist. Ct. App. 1979); Laukkanen v. Jewel Tea Co., 222 NE2d 584 (Ill. App. Ct. 1966); Totten v. Gruzen, 245 A2d 1 (N. J. 1968). See also W. Page Keeton, Prosser and Keeton on The Law of Torts, § 104A, pp. 722-724 (5th ed. 1984); Note, The Crumbling Tower of Architectural Immunity: Evolution and Expansion of the Liability to Third Parties, 45 Ohio St. L.J. 217 (1984).


author: Cooper, Judge.

text:
    A92A0876, A92A0877.
    WHITE v. ATLANTA HOUSING AUTHORITY; and vice versa.
    (423 SE2d 40)
   Cooper, Judge.

Appellant was employed by appellee Atlanta Housing Authority (“AHA”) as a maintenance supervisor for two of its housing projects, Jonesboro North/South and Gilbert Gardens. His duties included recording the distribution of supplies for work performed at the facilities and gave him access to the keys to the various places in which AHA stored supplies. In 1987, a report by an AHA employee to the manager of Jonesboro North/South that she observed appellant loading AHA supplies into his van led to an investigation by AHA’s chief of security, Roosevelt Profit. After a comprehensive inventory, Profit determined that 150 gallons of white paint and a quantity of lumber from Jonesboro North/South were unaccounted for. Appellant was asked to explain the disappearance of the paint. He stated that the paint was issued to contractors as needed. Profit asked appellant for documentation to support his explanation which appellant agreed to supply; however, after repeated requests appellant never produced documentation. Profit then reported the matter to the police. Following an investigation, the police determined there was probable cause to arrest appellant for theft. Profit swore out a warrant against appellant which was served; however, the case was subsequently dismissed for want of prosecution.

Appellant brought the instant action against AHA for malicious prosecution and false arrest. The case was tried before a jury, and at the close of appellant’s case, AHA moved for a directed verdict. The trial court granted AHA’s motion, finding that appellant failed in its burden to show malice. In Case No. A92A0876, appellant appeals the trial court’s grant of the directed verdict. In Case No. A92A0877, AHA cross-appeals on the ground that the trial court erred in declining to find that appellant failed to prove other essential elements of the causes of action, specifically, the lack of probable cause and the existence of a prosecution.

1. Appellant contends the evidence adduced at trial demonstrates a total lack of probable cause from which the jury could infer malice. We disagree. Both lack of probable cause and malice “must be established by the [appellant] in order to carry [his] burden of proof. [Cits.]” K Mart Corp. v. Griffin, 189 Ga. App. 225, 226 (375 SE2d 257) (1988). Malice may be inferred from a total lack of probable cause, OCGA § 51-7-44; however, “ ‘ “where there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for malicious prosecution (or malicious arrest) to recover.” ’ [Cit.]” Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 130 (2) (397 SE2d 563) (1990). “Probable cause is absent when the circumstances would satisfy a reasonable person that the accuser had no ground for proceeding except a desire to injure the accused. OCGA § 51-7-43. Although a jury normally decides whether probable cause exists, the judge determines the issue when the material facts are undisputed. [Cits.]” K-Mart Corp. v. Coker, 261 Ga. 745, 746 (1) (410 SE2d 425) (1991). The evidence indisputably established that appellant was observed placing supplies from Jonesboro North/South into his personal vehicle; that he had been entrusted with the missing paint; that he was unable to document the location of the missing paint; and that the police determined after an investigation that there was probable cause to arrest appellant, thus demonstrating that AHA had a reasonable basis for instigating a criminal prosecution against appellant.

2. Relying on the definition of malice discussed in Worn v. Warren, 191 Ga. App. 448 (1) (382 SE2d 112) (1989), appellant contends the circumstances show “a general disregard of the right consideration of mankind, directed by chance against the individual” because he was forced by Profit to prove his innocence or be subject to criminal prosecution. This argument is without merit as we have formerly held that “entrustment of money to an employee who does not make a proper accounting when asked to do so, constitutes probable cause to believe that the employee is guilty of defalcation. [Cit.]” Fisher v. Kentucky Fried Chicken, 175 Ga. App. 542, 545 (333 SE2d 877) (1985).

3. Finally, appellant argues that by transferring him to the position of maintenance supervisor of Jonesboro North/South and Gilbert Gardens immediately before the discovery of the missing supplies, AHA officials conspired to “set [him] up to take the blame for the missing paint.” Appellant contends that his supervisor, with whom he had no relationship, insisted that they drive to see the dog races in Alabama; that on the trip the supervisor prodded him to transfer to the projects; and that the manager of Jonesboro North/South and the supervisor worded the transfer he was asked to sign. Appellant suggests that these officials knew about the shortages and set him up to save themselves. On the other hand, the evidence at trial established that appellant and his supervisor had known each other for “thirty some odd years”; that appellant’s prior job performance at a larger project had suffered; that the supervisor, aware of appellant’s problems, offered him the opportunity to transfer to a smaller project in an effort to save appellant’s job; and that the supervisor “recommended” the transfer. “[Although superficially the evidence was far from harmonious, there was sufficient competent evidence to authorize the trial court to conclude that there existed no genuine conflict as to any material issue. OCGA § 9-11-50 (a). ... It is well settled that the appellate court assesses only the sufficiency of the evidence, not its weight. [Cit.]” Hutchinson v. Perkins, 194 Ga. App. 389 (1) (391 SE2d 122) (1990). Accordingly, the trial court did not err in granting a directed verdict.

Decided September 25, 1992.

Jerry B. Hatcher, for appellant.

Mack & Bernstein, Nina H. Perry, for appellee.

4. In its cross-appeal, AHA argues two alternative bases upon which the trial court should have granted its motion for directed verdict. However, our disposition in Case No. A92A0876 renders the cross-appeal moot. Accordingly, Case No. A92A0877 is dismissed. OCGA § 5-6-48 (b) (3).

Judgment affirmed in Case No. A92A0876. Case No. A92A0877 dismissed.

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


text:
    A92A0957.
    PADGETT v. THE STATE.
    (423 SE2d 411)
   Cooper, Judge.

In a four-count indictment, appellant was indicted for rape, aggravated sodomy, aggravated assault with intent to rape and burglary. Following his conviction by a jury of rape and aggravated assault with intent to rape, he appeals from the judgment entered on the sentence and the denial of his motion for new trial.

Construed to support the verdict, the evidence adduced at trial showed that the victim returned to her apartment from her college classes. She entered her apartment but did not immediately lock the door behind her because her arms were full of books. The victim was in the kitchen when appellant entered her apartment and grabbed her from behind, placing his hands over her eyes and mouth. Appellant told the victim that if she did not cooperate he would hurt her. Appellant then forced the victim into the bedroom, ripped her clothes off, performed oral sex on her and raped her for over an hour. Appellant continuously threatened the victim’s life during the attack. When one of the victim’s roommates entered the apartment, appellant stopped his assault on the victim and began putting on his clothes. The victim’s roommate tried to enter the bedroom, but appellant slammed the door closed. The roommate ran next door to get help from a neighbor and when the roommate returned with the neighbor, they went to the victim’s bedroom window and attempted to enter. As they pushed the blinds aside, appellant ran out of the bedroom and they pursued him. The roommate and neighbor chased appellant, but appellant escaped by driving away in a car. The roommate and neighbor got a good look at appellant’s face as well as the tag number of the car in which appellant escaped. Appellant was arrested the following day and was subsequently identified in a lineup by the victim, her roommate and the neighbor. Appellant contended at trial that the victim invited him into her apartment where they engaged in consensual sex.

1. In his first enumeration of error, appellant contends that the trial court erred in its charge to the jury by stating: “You are not to concern yourself with anything concerning punishment.” “ ‘The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.’ [Cit.]” Bartlett v. State, 196 Ga. App. 174, 175-176 (3) (396 SE2d 31) (1990). Prior to that portion of the charge objected to, the trial court instructed the jury that they were to only be concerned with the guilt or innocence of the defendant. The trial court also later charged the jury that no comment by the court was intended to express any opinion about the facts of the case or the guilt or innocence of the defendant. Reviewing the trial court’s charge as a whole, we find nothing that intimated an opinion as to the guilt or innocence of appellant. See Gaskin v. State, 171 Ga. App. 266 (319 SE2d 482) (1984).

2. Appellant contends in his second enumeration of error that the trial court erred in sentencing him on both convictions because the offenses of rape and aggravated assault with intent to rape merged as a matter of law. We note at the outset that the ten-year sentences handed down on each of the convictions are to run concurrently with each other. However, we agree with appellant that the trial court erred in sentencing him on both convictions. “Under OCGA §§ 16-1-6 and 16-1-7, a defendant may be prosecuted for two crimes based on the same conduct, but he may not be convicted of more than one crime if one crime is included in the other.” Watson v. State, 178 Ga. App. 778, 780 (2) (344 SE2d 667) (1986). “[T]he offense of rape includes the lesser offense of assault with intent to rape. ...” Wingfield v. State, 231 Ga. 92, 99 (12) (200 SE2d 708) (1973). We cannot conclude that the two charged offenses against the victim were separate and distinct acts. Compare Taylor v. State, 177 Ga. App. 624 (4) (340 SE2d 263) (1986) (defendant pointed gun at the victim through window and then held gun to her while he led her from room to room, thus committing separate offense of aggravated assault with deadly weapon, prior to rape). Appellant’s actions in placing his hands over the victim’s mouth and stating that he would hurt her if she did not cooperate did not constitute an aggravated assault separate from appellant’s commission of the actual rape. Accordingly, we find that there was a merger of the offenses as a matter of law and the trial judge should have only sentenced appellant on the rape conviction.

Decided September 25, 1992.

Dennis C. O’Brien, for appellant.

Thomas J. Charron, District Attorney, Russell J. Parker, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment of conviction affirmed in part and remanded for re-sentencing.

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


author: Sognier, Chief Judge.

text:
    A92A1241.
    LITTLE v. THE STATE.
    (423 SE2d 42)
   Sognier, Chief Judge.

Maurice Little was convicted by a jury of possession of cocaine with intent to distribute, and he appeals, enumerating the general grounds.

At trial, State Trooper Dahl McDermitt testified that while on routine patrol in Hawkinsville he stopped a Ford Escort bearing a dealer tag, intending to question the three occupants to “see if they had just purchased the car and just failed to buy a tag.” He testified that both before and after he had asked the driver, later identified as appellant, to step out and produce a driver’s license and proof of insurance, he noticed “a lot of movement” inside the car. While paying close attention to that movement for his own safety, he observed the passenger in the rear seat, later identified as Leonard Johnson, attempting to conceal near his feet a white plastic pill bottle similar to those ordinarily containing Tylenol. McDermitt testified that when he asked Johnson what he was holding, Johnson threw the bottle out the right passenger window. McDermitt testified that he heard the rattling inside the bottle and that at that point, based on his experience, he was “99.9 percent sure” that the plastic bottle contained crack cocaine. He secured appellant in his patrol car, called for help, and asked Johnson and the front seat passenger, Gene Moreland, to exit the car.

Officer Freddie Yates of the Hawkinsville Police Department testified that when he arrived at the scene McDermitt had appellant in custody in the patrol car, and Moreland and Johnson were lying face down on the ground next to the sidewalk. He testified that McDermitt told him something had been thrown out of the car and instructed him to search for it. He testified he found a white plastic bottle with an orange top on the sidewalk near the passenger side of the car, and in the roadway next to the open driver’s door he found a clear plastic bag containing several pieces of a hard, white substance. He gave both items to McDermitt. Proper chain of custody was shown for the bottle and the plastic bag, and a forensic chemist from the state crime laboratory testified that the bottle and the bag both contained crack cocaine.

Johnson testified that the pill bottle containing 24 rocks of cocaine belonged to him. He testified he threw the bottle out the window because he was on probation and did not want to get caught with the cocaine. At the time of appellant’s trial, Johnson had pled guilty and had been sentenced on the charge arising out of that possession. Johnson testified that he knew the 13 rocks of cocaine in the plastic bag found in the roadway belonged to appellant, because when McDermitt first stopped their car, appellant had admitted to his passengers that he had drugs hidden in the car in a box between the front seats, and had cautioned Moreland not to “mess with it” or worry about it, believing that the stop would prove to be a routine check for license and insurance.

Moreland confirmed that when they were stopped appellant told him he had a plastic bag of cocaine rocks hidden in the car in a blue and white AC Delco sparkplug box. Because Moreland had just been paroled from prison and did not want to be found in a car containing drugs, when he saw Johnson throw out his own pill bottle he “panicked” and tossed appellant’s plastic bag out the driver’s side window. Moreland’s case on charges stemming from the incident was still pending at the time of appellant’s trial.

Appellant testified in his own defense, denying that any of the cocaine was his and testifying that he never drank or possessed or used drugs. He testified that when he and Johnson were in the same jail cell after being arrested, Johnson asked him to take the blame for possessing all the drugs because he was likely to receive a lighter sentence than either Johnson or Moreland, who were on probation and parole, respectively. Appellant testified that he first agreed but then thought better of it and refused.

Decided September 25, 1992.

W. Dennis Mullís, for appellant.

James L. Wiggins, District Attorney, H. Frederick Mullís, Jr., Assistant District Attorney, for appellee.

Appellant’s contention that the evidence was insufficient to support the conviction given that both Johnson and Moreland had equal access to the contraband is without merit. The general rule is that the presumption arises from ownership or control of an automobile that the owner or driver is in possession of contraband found in the car, but this presumption does not apply when there is evidence that others had access to the vehicle. Fears v. State, 169 Ga. App. 172, 173 (312 SE2d 174) (1983). However, neither the presumption nor the exception has application in cases where, as here, the State establishes more than appellant’s mere presence in a vehicle in which contraband was found. Bell v. State, 198 Ga. App. 874, 875 (1) (403 SE2d 864) (1991). The testimony of Johnson and Moreland that appellant admitted to them that the contraband was his constituted direct evidence of his possession of the cocaine. Id. Although appellant’s testimony contradicted that of Johnson and Moreland in this regard, the credibility of the witnesses was for the jury. Cooley v. State, 201 Ga. App. 171 (1) (410 SE2d 453) (1991). This court determines only the legal sufficiency of the evidence, id., and given the amount of crack cocaine involved, see generally Davis v. State, 200 Ga. App. 44, 45, 46 (2, 3) (406 SE2d 555) (1991), we hold that the evidence adduced at trial was sufficient to have authorized the jury to find appellant guilty beyond a reasonable doubt of possession of cocaine with intent to distribute under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Shropshire v. State, 201 Ga. App. 421 (411 SE2d 339) (1991).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A1380, A92A1381.
    STALLINGS v. CUTTINO et al; and vice versa.
    (422 SE2d 921)
   Pope, Judge.

Plaintiffs, Benjamin Cuttino and his parents, Harold and Sally Cuttino, brought a negligence action against defendants, Scott Stallings and his parents, Robert and Shirley Stallings, for an eye injury Benjamin received while he and Scott were building a skateboard ramp at Scott’s house. Defendants filed a motion for summary judgment, and plaintiffs moved to dismiss with prejudice their action against Shirley Stallings. The trial court granted summary judgment to defendant Robert Stallings but denied defendant Scott Stallings’ motion for summary judgment. The trial court certified the denial of summary judgment for immediate review and this court granted Scott Stallings’ application for interlocutory review. In Case No. A92A1380 Scott Stallings appeals from the denial of his motion for summary judgment. In Case No. A92A1381 plaintiffs cross-appeal from the grant of summary judgment to defendant Robert Stallings.

Case No. A92A1380

1. Defendant Scott Stallings argues he was entitled to summary judgment in this case based on the affirmative defenses of assumption of the risk/avoidance of consequences.

As pertinent to this issue, and viewing the evidence in favor of plaintiffs, the opponents to summary judgment, see, e.g., Moore v. Svc. Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480) (1991), the record shows that Scott and Ben, who were both 14 years old at the time of the accident, decided to construct a skateboard ramp in Scott’s backyard. They used old lumber and nails which were at the Stallings’ residence. The boys took turns holding the pieces of wood together while the other would attempt to hammer in the nails, and both gave deposition testimony that the nails would sometimes “fly away” or “fly up” instead of going through the wood. At the time of the accident, Ben was holding the wood and Scott was hammering. Ben testified that because of the problem with the flying nails, he ducked his head and closed his eyes while Scott was hammering. Ben further testified Scott paused during the hammering and he thought Scott had finished with that nail. When he started to raise up his head, Scott hit the nail again and it flew up, striking Ben in the eye.

“The defense of assumption of risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that [he] understood and appreciated the risk therefrom; and (3) that [he] voluntarily exposed [himself] to that risk. Rainey v. City of East Point, 173 Ga. App. 893 (328 SE2d 567) (1985).” Cagle v. Thorpe, 193 Ga. App. 576 (1) (388 SE2d 533) (1989). See also Hollingsworth v. Hollingsworth, 165 Ga. App. 319, 320 (301 SE2d 56) (1983). “ Tn its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.’ Prosser, Law of Torts (4th Ed.) p. 440. ‘In by far the greater number of cases, the consent to assume the risk has not been a matter of express agreement, but has been found to be implied from the conduct of the plaintiff under the circumstances.’ Prosser, supra, at 445; see Harper and James, Law of Torts, Vol. 2, Ch. XXI.” Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980).

Ben Cuttino admitted in his deposition that he knew that using old wood and used nails was dangerous, but that he decided nevertheless to proceed with the project. Plaintiffs argue, however, assumption of the risk does not bar their claim of negligence because their primary allegation of negligence is that Scott was striking the nails with the hammer in a negligent manner. Specifically plaintiffs argue that Scott “negligently released the nail before driving it sufficiently deep into the wood to prevent it from flying, and then negligently struck the nail with a full blow.” As to this allegation, Ben testified that he and Scott were striking the nail in the same manner (first tapping it lightly into the wood and then hitting it with a stronger blow so as to drive it completely into the wood), except that Scott was not tapping the nail as far into the wood as he was prior to hitting it with the harder blow. Ben opined that Scott “might have thought” the nail was in far enough prior to attempting to drive it in and that he did not say anything to Scott about the method he was using to hammer in the nails, and that he never suggested to Scott that he tap the nail in harder prior to attempting to drive it into the wood. Moreover, Ben admitted that a nail flew away while he was hammering (and presumably tapping the nail in harder) and that he never suggested to Scott to duck his head while he was hammering and Scott was holding the wood. Ben also testified that he never told Scott that he thought what they were doing was dangerous, although he himself thought it was “but not dangerous enough to stop.”

“ ‘Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication . . . where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.’ . . . [Cit.]” Taylor v. Bloodworth, 198 Ga. App. 186, 187 (400 SE2d 691) (1990).

However, plaintiffs urge that, even conceding the facts showing Ben may have assumed the risk of the activities engaged in, summary judgment was properly denied in this case because Scott had the last clear chance to avoid the injury to Ben’s eye. The last clear chance doctrine contains two elements, and the plaintiff must show each element as a matter of law in order to prevail. “The first essential element is that the plaintiff, by his own negligence, must have put himself in a position of peril from which he could not extricate himself (but the defendant presumably could have extricated him). . . . The second essential element of the doctrine of last clear chance is that the defendant must have knowledge and appreciation of the injured person’s peril in time to avoid the injury.” (Indention omitted.) Shuman v. Mashburn, 137 Ga. App. 231, 235-236 (3) (223 SE2d 268) (1976). See also Smith v. Mobley, 185 Ga. App. 462, 463 (2) (364 SE2d 597) (1987).

Pretermitting whether plaintiffs have made the proper showing as to the first element, our review of the record shows that plaintiffs cannot, as a matter of law, make the requisite showing as to the second element. Scott testified he never apprehended any danger in what they were doing, that neither he nor Ben remarked about the danger from the flying nails and that it did not occur to him that someone might get hurt because of the flying nails until after Ben was injured. He also testified that neither he nor Ben ever requested that the other take any precautions while they were working and that he did not remember if Ben ducked his head while he was hammering or what position Ben’s head was in at the time of the injury. “The last clear chance doctrine simply has no application unless the defendant knew of the plaintiff’s perilous situation and had opportunity to take proper evasive action to avoid injuring him. It does not apply to a ‘should know’ or ‘should have known’ situation. [Cits.]” Conner v. Mangum, 132 Ga. App. 100, 106 (6) (207 SE2d 604) (1974).

Based on the foregoing we conclude that “ ‘[t]his is a “plain, palpable, and indisputable” case not calling for resolution by a jury.’ Favour v. Food Lion, 193 Ga. App. 750, 751 (389 SE2d 22) (1989); Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991).” Moore, 200 Ga. App. at 464. The trial court thus erred in denying defendant Scott Stallings’ motion for summary judgment.

Case No. A92A1381

2. It follows from our holding in Division 1 that the trial court did not err in granting summary judgment to defendant Robert Stallings on the claims asserted against him based on theories of agency, negligent supervision and negligent entrustment.

Judgment reversed in Case No. A92A1380. Judgment affirmed in Case No. A92A1381.

Carley, P. J., and Johnson, J., concur.

Decided September 25, 1992.

Irwin, Bladen, Baker & Russell, R. Chris Irwin, for appellant.

J. Steven Parker, for appellees.


text:
    A92A1065.
    ZAPPA et al. v. AUTOMOTIVE PRECISION MACHINERY, INC. et al.
    (423 SE2d 286)
   Sognier, Chief Judge.

Automotive Precision Machinery, Inc. (hereinafter “APM”) filed a complaint against Joe M. Zappa, Jr., the proprietor of a business on adjoining property, seeking to enjoin Zappa from trespassing across a common boundary and engaging in “destructive and violent behavior” such as destroying portions of structures on APM’s property with a blowtorch and obstructing drains so as to flood APM’s property. APM later amended the complaint to seek compensatory damages for injury to real and personal property and punitive damages based on the intentional nature of Zappa’s alleged tortious misconduct. Zappa answered, denying he engaged in such behavior. Thereafter, Zappa’s wife, Myrtle, filed a pleading denominated “Interpleader” that included proposed counterclaims seeking the determination of the boundary line and damages for what appears to be alleged malicious use of process and loss of consortium. The trial court construed this pleading as a motion to intervene as a defendant and granted it, and the case proceeded to trial on both the main claim and the counterclaims. During the jury trial, James A. Ratteree, Sr. and James A. Ratteree, Jr., the principal shareholders of APM, were added as plaintiffs. The jury returned a verdict awarding $38,000 compensatory damages, $62,000 punitive damages, and $10,000 attorney fees to the plaintiffs. The jury found for the plaintiffs on the property line dispute and made no monetary award to the defendants on their counterclaims. The Zappas appeal.

1. Appellants first contend the trial court erred by denying their motion for summary judgment. This court cannot consider the contention because a denial of summary judgment becomes moot when the court reviews the evidence upon the trial of the case. Brown Realty Assoc. v. Thomas, 193 Ga. App. 847 (1) (389 SE2d 505) (1989).

2. Contrary to appellants’ argument in their second enumeration of error, the doctrine of clean hands, OCGA § 23-1-10, applies only to equitable rights related directly to the cause of action. Sparks v. Sparks, 256 Ga. 788, 789 (2) (353 SE2d 508) (1987); accord Morton v. Gardner, 242 Ga. 852, 855 (252 SE2d 413) (1979). Although appellees’ original claim was for injunctive relief, regardless of the boundary dispute the monetary award appealed from was a judgment at law for compensatory and punitive damages flowing from appellant Joe Zappa’s intentional and violent misconduct. Accordingly, the equitable principle has no application here. Id.

3. We find no merit in appellants’ enumeration of error challenging the trial court’s exclusion of evidence regarding the reason alleged by appellants for Joe Zappa’s absence during the trial. Appellants did not ask for a continuance and do not argue that Joe’s absence was for providential cause. See OCGA § 24-1-2. Rather, Joe elected not to attend and, since he was represented at trial by counsel, who was present, the reason for Joe’s absence was irrelevant. Bembry v. Pugh, 186 Ga. App. 144 (366 SE2d 812) (1988).

Appellants’ argument concerning the admissibility of similar evidence contained in Joe’s answers .to written interrogatories propounded by Myrtle is controlled adversely to them by this court’s holding in Carter v. Tatum, 134 Ga. App. 345, 346-348 (1) (212 SE2d 439) (1975).

4. Appellants maintain the trial court’s ruling permitting appellees to testify that appellant Joe Zappa had twice been held in contempt during the discovery phase of the litigation amounted to an expression of opinion prohibited by OCGA § 9-10-7. We cannot consider this contention because the transcript reveals that appellants’ objection to this testimony was made on other grounds, and “ £(o)n appeal only issues properly raised before the trial court will be considered. (Cits.)’ [Cit.]” Venture Design, Ltd. v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (3) (398 SE2d 781) (1990).

5. After APM rested its case, appellants moved to dismiss on the ground that the real property upon which the claimed trespass had been made was owned not by APM but by the individual appellees. APM then moved to reopen its case to add the individual appellees as plaintiffs. Appellants challenge the trial court’s grant of appellee APM’s motion, arguing they were unduly prejudiced by the trial court’s ruling allowing joinder of the individual appellees as plaintiffs because their entire defense had been based on documents showing that the real property at issue was not owned by the corporate plaintiff. Given this evidence regarding the ownership of the real property, however, the individual appellees were indispensable parties pursuant to OCGA § 9-11-19 (a), and the proper remedy for failure to join an indispensable party is not dismissal, as urged by appellants, but joinder. Guhl v. Tuggle, 242 Ga. 412-414 (1) (249 SE2d 219) (1978). OCGA § 9-11-21 provides that £<[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” (Emphasis supplied.) Accordingly, the trial court properly exercised its discretion to allow the joinder even after the plaintiff had rested.

Decided September 14, 1992

Reconsideration denied September 28, 1992.

Thomas M. Stubbs, Jr., for appellants.

Wallace & Moss, Howard P. Wallace, for appellees.

6. We have reviewed appellants’ remaining enumerations of error and find them utterly without merit.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A1068.
    HAGUE et al. v. KENNEDY.
    (423 SE2d 283)
   McMurray, Presiding Judge.

Emmitt Kennedy (plaintiff) filed a dispossessory action against Mary Ellen Hague and Raymond Hague (defendants) in the Magistrate Court of Gwinnett County, alleging that he acquired real property (“the premises”) via foreclosure; that defendants have possession of the premises and that defendants are tenants holding over. Defendants denied the material allegations of the petition. Plaintiff filed certified pleadings from the Superior Court of Cobb County showing that Mary Ellen Hague twice sued plaintiff to enjoin foreclosure of her interest in the premises. More specifically, Mary Ellen Hague alleged in two petitions for injunction that she and Raymond J. Pitts, Inc. entered into a loan transaction with Heritage Trust Bank using the premises as collateral; that she unsuccessfully sued Raymond J. Pitts, Inc. in the Superior Court of Gwinnett County to recover the debt encumbering the premises; that plaintiff is a corporate officer of Raymond J. Pitts, Inc. and that plaintiff entered into a conspiracy with others, fraudulently acquiring an assignment of the promissory note and security deed encumbering the premises and purchasing the premises at an unfair foreclosure sale. Other certified records from the Superior Court of Cobb County reveal that Mary Ellen Hague was unsuccessful in enjoining the foreclosure sale. In fact, one certified order specifically disposed of Mary Ellen Hague’s claims on the merits.

At a hearing on the dispossessory petition, plaintiff Kennedy asserted a motion to dismiss Mary Ellen Hague’s and Raymond Hague’s answer and a motion for judgment on the pleadings. The Magistrate Court of Gwinnett County granted these motions and entered an order, granting plaintiff an immediate writ of possession and concluding that defendants Hague are barred from asserting defenses resolved against defendant Mary Ellen Hague in prior superior court actions. The Magistrate Court of Gwinnett County also found that plaintiff purchased the premises through foreclosure and that defendants are tenants holding over.

Defendants filed an amended answer at the same time the final order awarding plaintiff a writ of possession was entered, denying that a landlord and tenant relationship exists between the parties and alleging that plaintiff fraudulently acquired title to the premises. Defendants simultaneously filed a notice of appeal and an amended notice of appeal to the superior court, alleging that plaintiff fraudulently acquired title to the premises.

Plaintiff pressed a motion for a judgment on the pleadings and a motion to dismiss the appeal at a hearing in the Superior Court of Gwinnett County, arguing that defendants are estopped from challenging his title to the premises because their claim that he fraudulently acquired the premises was resolved in prior adjudications. Defendants argued that the issue of plaintiff’s fraudulent acquisition of the premises has not been resolved and that they have a right to a trial by jury. More specifically, defendants’ attorney argued as follows: “[Defendants] have a right to a jury trial. And of course the issues between these parties . . . have never been litigated. The issues before these parties is this . . . : [Plaintiff] did buy a note in his name; the evidence will show that money was furnished by the Pitts’ family; the evidence will show that the Pitts’ family had a lis pendens on record against this property. . . . Under the law, . . . when a lis pendens is pending before property, the cases have held that it cannot be sold in front of the courthouse because it will not bring its fair price at that time, . . . the reason being that people’s not gone come in and bid and buy a lawsuit. So this property that is owned by Mrs. Hague, we contend was sold out here in front of the courthouse for ninety-something thousand dollars. This property is worth somewhere between 350- and 450,000 . . . and we expect to show that when this case is tried before a jury. ... Of course, [plaintiff] has the note; [plaintiff] can come back . . . and resell once the lis pendens is off of the property. But he cannot sell it so long as there’s a lis pendens against the property because the property will not bring its fair market value. And of course, when it’s sold in front of the courthouse, it’s essentially sold based on the fact that it will bring its highest and best value. . . . And that’s why we say that we’re entitled to go to a jury in this case ... on this appeal. The constitution says we have a right to appeal; the constitution says we have a right to present our evidence to a jury and let them determine the issues. And the issues between these parties; it always has been. . . . We just simply don’t feel that Mr. Kennedy should be allowed to take property worth four or five times what we’ve got in it ... by selling it in front of the courthouse. So that’s why we’re in court.”

Decided September 11, 1992

Reconsideration denied September 28, 1992

The superior court granted plaintiff’s motion to dismiss and motion for judgment on the pleadings and “denied and dismissed” defendants’ appeal. The superior court also affirmed the judgment of the Magistrate Court. This appeal followed. Held:

Defendants contend the superior court erred in failing to conduct a jury trial, arguing that they had a right to de novo review. This contention is without merit.

Where no genuine issue of material fact remains and the undisputed evidence shows that a party is entitled to judgment as a matter of law, the trial court is authorized in granting summary judgment upon a motion for judgment on the pleadings. OCGA § 9-11-12 (c). In the case sub judice, it is undisputed that plaintiff was assigned a security deed to the premises and that he foreclosed defendant Mary Ellen Hague’s interest in the premises by virtue of the power of sale contained in the security deed. It is also undisputed that plaintiff purchased the premises at the foreclosure sale and that the deed to secure debt provided that defendant Mary Ellen Hague would be a tenant holding over in the event of foreclosure. This undisputed evidence is sufficient to authorize a finding, as a matter of law, that defendants are tenants holding over and that plaintiff has “the right to bring dispossessory proceedings under Code Ann. § 61-301 et seq. [now OCGA § 44-7-50 et seq.] Redwine v. Frizzell, [184 Ga. 230, 235 (7) (190 SE 789)], and see Uvalda Naval Stores v. Cullen, 165 Ga. 115 (139 SE 810).” McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 116 (4) (274 SE2d 34). Nonetheless, defendants contend genuine issues of material fact remain as to plaintiff’s interest in the premises because of the alleged fraudulent foreclosure sale. This contention is without merit.

“Claimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under Code Ann. § 61-301, 303 [now OCGA §§ 44-7-50 and 44-7-53]. Ryals v. Atlantic Life Ins. Co., 53 Ga. App. 469 (2) (186 SE 197).” McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 115 (2), supra. Under the circumstances of the case sub judice, plaintiff is the owner of the premises until and unless the foreclosure sale is set aside or the deed is void for some other reason. Ranger v. First Family Mtg. Corp. &c., 176 Ga. App. 715 (2) (337 SE2d 388). Consequently, the superior court did not err in granting plaintiff Kennedy’s motion for judgment on the pleadings. OCGA § 9-11-12 (c).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Pruitt & Britt, Glyndon C. Pruitt, for appellants.

Martin, Cavan & Andersen, James B. Ritchie III, for appellee.


text:
    A92A1211.
    BANKS v. GREEN et al.
    (423 SE2d 31)
    Decided September 17, 1992
    Reconsideration denied September 28, 1992
    Angelo Banks, pro se.

   Sognier, Chief Judge.

Angelo Bernard Banks, an inmate of the Georgia Diagnostic & Classification Center at Jackson, brought suit pro se against three members of the Fulton County Sheriff’s Department seeking damages for the alleged disappearance of certain personal property belonging to Banks when he was transferred from the Fulton County Jail to the prison at Jackson to begin serving his sentence. The trial court entered an order granting summary judgment to the defendants and denying several motions made by Banks, and Banks appeals.

Notice of appeal in this case was filed on December 23, 1991, thirty-three (33) days after the entry on November 20, 1991 of the order from which appellant appeals, and three days after the time prescribed by law. OCGA § 5-6-38 (a). Our courts have held without exception that the timely filing of a notice of appeal constitutes a jurisdictional requirement, and absent a timely filed notice of appeal this court lacks jurisdiction to entertain an appeal. Hull v. Campbell, 130 Ga. App. 637 (204 SE2d 312) (1974). Although appellant’s notice of appeal is dated December 17, 1991, this court has held that the burden of filing the notice of appeal in timely fashion is upon the party taking the appeal, Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695 (293 SE2d 352) (1982), and “[this] burden is not satisfied by relying on the postal delivery but may be satisfied only by depositing the notice of appeal with the clerk within the appropriate time frame. [Cit.]” Id. This court has made no exceptions to the rule where the untimeliness is allegedly attributable to the trial court, Cranman Ins. Agency v. Wilson Marine Sales &c., 147 Ga. App. 590, 591 (249 SE2d 631) (1978), or to the illness or even death of counsel, Wren v. Josey, 97 Ga. App. 593, 594 (103 SE2d 745) (1958), and we see no reason to do so here. Accordingly, while we are cognizant of appellant’s pro se status, we are constrained to dismiss this appeal for lack of jurisdiction.

Appeal dismissed.

McMurray, P. J., and Cooper, J., concur.

Michael Mears & Associates, Viuiane M. Haight, for appellees.


text:
    A92A1366.
    ASHLEY et al. v. BALCOR PROPERTY MANAGEMENT, INC. et al.
    (423 SE2d 14)
   McMurray, Presiding Judge.

The 14 plaintiffs in this negligence action were tenants of an apartment complex owned and managed by defendant Balcor Property Management, Inc. and its resident manager, defendant Tiffany, who suffered a property loss when their apartments were destroyed by a fire. The fire at issue occurred on November 14, 1988. Three or four days prior thereto, defendants were informed of children playing with matches in the stairwell of Building 2624, the building which was the site of the later fire. These were the same children who on November 14, 1988, started the fire which caused the damage at issue.

The complaint alleged that defendants were negligent in failing to keep the premises safe from fire. Plaintiffs appeal from the grant of summary judgment in favor of defendants. Held:

After receiving the complaint concerning children playing with matches on November 10 or 11, 1988, defendant Tiffany went to Building 2624 to investigate. Defendant Tiffany states in his affidavit that he “did not see any boys in the area, nor did I smell anything in the western stairwell or entranceway of building 2624 or see any evidence of damage caused by any fire. Nothing in my investigation of the scene led me to believe that the complaint involved anything more than kids being kids and playing with matches.” This affidavit recites that the defendants’ leasing office receives numerous complaints concerning nuisances on the property, that a personal response is made as to each complaint, and that the one complaint of boys playing with matches did not cause him to anticipate that three juveniles would commit arson causing fire, smoke, and water damage.

Under OCGA § 51-3-1, a landlord is required to exercise ordinary care in keeping the premises safe. However, since one is not ordinarily charged with a duty of anticipating acts mala per se, a landlord, even a negligent landlord, is not generally liable for damages sustained by a tenant due to the criminal conduct of third persons. Usually, the landlord would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. An exception to the general rule is applicable where the landlord had reasonable grounds for apprehending that such a criminal act would be committed. However, there must be a substantial similarity between the prior criminal acts and the criminal act giving rise to a tenant’s claim. Metropolitan Atlanta Rapid Transit Auth. v. Allen, 188 Ga. App. 902, 903 (1) (374 SE2d 761); McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130); McClendon v. C & S Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592).

Decided September 9, 1992

Reconsideration denied September 28, 1992

Rumsey & Ramsey, Austin L. Ramsey III, for appellants.

Smith, Gambrell & Russell, Margaret A. Murphy, David A. Handley, for appellees.

In arguing that they had no reason to apprehend the act of arson which began the fire in issue, the defendants place great reliance upon the affidavit of defendant Tiffany. Since it is uncontroverted that there was only the single incident which may have given defendants contemporaneous warning of the danger of arson, a substantial portion of the parties’ argument is given over to the significance of that incident. Defendant Tiffany stated that upon investigating he found no damage to suggest that the playing with matches incident of November 10 or 11, 1988, presented any threat to the safety of the premises. However, defendant Tiffany’s affidavit is directly controverted on the issue of whether there was visible damage in the stairwell of Building 2624 following the playing with matches incident. Plaintiffs’ evidence is that at the time of that incident there was smoke and there were several large, severe burns on the carpet and baseboard. Plaintiffs’ evidence, including photographs, may be viewed as showing that several significant attempts were made to ignite a fire in the stairwell. The evidence is sufficient to present a triable issue as to whether there was damage in the stairwell which should have placed defendants in apprehension of danger of arson to the premises.

At least a jury question is presented as to whether defendants exercised ordinary care in response to any threat of arson. Since defendants did not acknowledge the threat, there was no response to the danger of arson other than the defendants’ continuation of routine security arrangements, the exact nature of which is in dispute but which clearly were not focused on preventing arson. The superior court erred in granting defendants’ motion for summary judgment.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1421.
    MARTIN v. THE STATE.
    (422 SE2d 876)
   Pope, Judge.

Defendant Brian Keith Martin was found guilty of two counts of child molestation and one count of aggravated child molestation of his stepdaughter who was 12 years old at the time the acts occurred. Defendant appeals.

1. The testimony of the victim along with other evidence presented at trial was sufficient to support the conclusion that the defendant was guilty beyond a reasonable doubt. Even though defendant presented testimony in support of his defense that the victim falsely reported the crimes because she was angry with defendant for disciplining her and refusing to allow her to participate in certain activities, the weight of the evidence and credibility of witnesses is a matter for the jury. See Belcher v. State, 201 Ga. App. 139 (5) (410 SE2d 344) (1991).

2. We reject defendant’s argument that the trial court erred in refusing his request to have the prospective jurors present during the striking of the jury. The record shows the defendant was afforded ample opportunity to question and observe each juror during voir dire and thus the requirements of OCGA § 15-12-163 were met.

3. We also reject defendant’s argument that the trial court erred in permitting the State to present the audio tape recording of the victim’s statement to a social worker because the social worker who recorded the statement admitted the recorder was stopped and restarted several times during the course of the interview. The social worker explained the recorder was stopped when it appeared the witness was becoming too upset to talk and was restarted every time the victim recommenced talking. For the out-of-court statement of a child under 14 to be admissible at trial the child must be available to testify and the circumstances of the statement must “provide sufficient indicia of reliability.” OCGA § 24-3-16. In this case, the victim was available to testify, and we agree with the finding of the trial court that the testimony of the social worker established sufficient indicia of reliability to make the statement admissible. The pauses in the recording could be considered by the jury in evaluating the weight and credibility of the evidence, but they did not render the recording inadmissible.

4. As a part of his defense, the defendant presented the testimony of his stepson, the victim’s brother. The witness was asked if defendant had ever “been mean” to the victim or the other children in the family and he responded, “No.” We reject defendant’s argument that the trial court erred in permitting the State to impeach this testimony by a rebuttal witness who testified she had witnessed defendant striking the victim and the other children and jerking the victim around by her hair when the State had not first cross-examined the stepson concerning his testimony. We are aware of no requirement that a witness must first be challenged on cross-examination before his testimony may be impeached by the testimony of another witness. “A witness may be impeached by disproving the facts testified to by him.” OCGA § 24-9-82.

We also reject the defendant’s argument that the testimony of the rebuttal witness improperly placed his character into evidence. Testimony may be admissible for the purpose of impeaching the veracity of a witness even if it would be impermissible if offered for the purpose of impeaching the defendant’s character. See Williams v. State, 257 Ga. 761 (5) (363 SE2d 535) (1988). Finally, we reject the defendant’s argument that the statement which the State sought to impeach was immaterial and therefore it was improper to permit impeachment. The entire testimony of the defendant’s stepson related to the witness’ observations of the defendant’s treatment of the victim and his opinion that the defendant did not have the opportunity to molest the victim

5. During the testimony of the victim, defendant requested the court to exercise its right to clear the courtroom of unnecessary persons because defendant accused a courtroom observer of coaching the witness. The witness denied she was looking at the observer or that anyone was attempting to influence her testimony. The trial judge instructed the witness to inform him if anyone tried to give her signals and the witness acknowledged the judge’s instruction. Pursuant to OCGA § 17-8-54 the trial court is authorized to clear the courtroom of certain persons during the testimony of a person under 16 concerning a sex offense. As indicated by the language of OCGA § 17-8-55, which was enacted into law at the same time as OCGA § 17-8-54, the purpose of these statutes is to protect the interest of the child witness. See Ga. L. 1985, p. 1190. Thus, the trial court’s failure to exercise its statutory authority to clear the courtroom did not violate defendant’s rights. Since the record shows the witness’ testimony was not improperly influenced by any courtroom spectator, we find no reversible error in the trial court’s denial of defendant’s request in this case.

6. At the commencement of the trial the State announced it had no intention of presenting expert testimony concerning the pattern of behavior of children who were sexually abused and therefore the trial court denied the defendant’s request for a continuance to permit him to seek an expert witness in the case. Defendant argues the trial court then erred in permitting the State to present what the defendant argues was, in effect, expert testimony concerning typical behavior of sexually abused children. One of the State’s witnesses was a social worker assigned to follow the victim after a previous report of sexual abuse. First, the defendant argues the trial court erred in, admitting, over his objection, the social worker’s testimony that children frequently experience difficulty in reporting sexual abuse. The record shows the witness’ testimony was based on her own experience in investigating numerous child abuse cases and the witness offered no opinion concerning whether the behavior of the witness in this case was consistent with the behavior exhibited in other cases. Thus, we reject defendant’s argument that the State improperly introduced expert psychological testimony and that he was thus denied a fair .trial.

Decided September 8, 1992

Reconsideration denied September 28, 1992

Judith F. Sloman, James W. Smith, for appellant.

Timothy G. Madison, District Attorney, Deborah S. Wilbanks, Jeffery G. Morrow, Assistant District Attorneys, for appellee.

Second, the defendant argues the trial court erred in admitting the social worker’s testimony concerning the victim’s feelings of guilt. The testimony in question was given in response to the defendant’s questions on cross-examination and the defendant did not raise any objection to it at trial. Consequently, defendant is precluded from raising the issue on appeal. See Barnwell v. State, 197 Ga. App. 116 (4) (397 SE2d 717) (1990).

7. The trial court did not commit reversible error by permitting the State to question the victim’s brother about the victim’s emotional reaction to defendant’s admitted sexual abuse of the victim on a previous occasion not at issue in this case. Finally, we have examined the record and reject defendant’s argument that he is entitled to a new trial because of prejudice caused by various comments made by the prosecuting attorney and the trial judge.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1479.
    ROBERTS v. AMALGAMATED TRANSIT UNION et al.
    (423 SE2d 16)
   McMurray, Presiding Judge.

Plaintiff Roberts was formerly employed by defendant Chatham Area Transit Authority as a bus driver. In connection with that employment, defendant Amalgamated Transit Union, Local 1324, was plaintiff’s exclusive collective bargaining representative and the circumstances of plaintiff’s employment were governed by a collective bargaining agreement between the defendants.

Plaintiff was injured on the job when the bus he was operating was struck by a car. While plaintiff was out of work receiving medical treatment allegedly related to this injury, he was discharged. In this action, plaintiff sought damages from his former employer on a theory of breach of contract and against the union on theories of breach of various duties to represent plaintiff and tortious interference with plaintiff’s contract with the former employer. Plaintiff appeals following a verdict and judgment in favor of the two defendants. Held:

Decided September 14, 1992

Reconsideration denied September 28, 1992

Wayne B. Kendall, for appellant.

Ernest S. Roberts, Jr., pro se.

Bouhan, Williams & Levy, Walter C. Hartridge, M. Tyus Butler, Jr., Walls & Corlew, J. Michael Walls, Harold D. Corlew, for appellees.

1. In Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991), the Georgia Supreme Court held that OCGA § 51-12-1 (b) authorizing the admission in evidence of collateral source payments is unconstitutional. Plaintiff contends, for the first time on appeal, that the trial court erred in charging the jury that they could consider collateral source payments in mitigation of his injuries. This Court recently held in Anepohl v. Ferber, 202 Ga. App. 552 (415 SE2d 9), that the holding in Denton must be applied retroactively to those cases still pending at the time Denton was decided. See Tyler v. Roberts, 204 Ga. App. 380, 381 (1) (419 SE2d 103). “Pursuant to our ruling in Anepohl, the [plaintiff] did not waive [his] objection to the trial court’s charge on collateral source payments by failing to raise an objection at trial since, pursuant to OCGA § 5-5-24 (c), the charge was error as a matter of law.” Tyler v. Roberts, 204 Ga. App. 381 (2), supra.

Furthermore, we reject defendants’ argument that the collateral source rule is applicable only to tort cases and has no applicability to contract cases. While issues concerning application of the collateral source rule to contract cases arise less frequently, this Court has repeatedly applied this principle in breach of contract actions. See Mallory v. Daniel Lumber Co., 191 Ga. App. 234, 235 (1) (381 SE2d 406); Insurance Co. of N. A. v. Fowler, 148 Ga. App. 509, 511 (2) (251 SE2d 594); Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 52 (244 SE2d 573); Peoples Bank of LaGrange v. Ga. Bank &c. Co., 126 Ga. App. 768, 771-772 (1) (191 SE2d 876).

2. The issues which plaintiff would raise through his remaining enumeration of error were not preserved for appeal by any proper objection at trial, thus are deemed waived.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1587.
    CHAMPION v. SOUTHERN GENERAL INSURANCE COMPANY.
    (423 SE2d 733)
    Decided September 11, 1992
    Reconsideration denied September 28, 1992

      Berlin & Hodges, Robert A. Berlin, Charles E. Johnson III, for appellant.

      Jones, Cork & Miller, Brandon A. Oren, Rufus D. Sams III, for appellee.
   McMurray, Presiding Judge.

This is the second appearance of this action on an insurance policy before this Court. In Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129 (401 SE2d 36), a declaratory judgment action, this Court held that a genuine issue of material fact remained, whether the prejudice plaintiff experienced as a result of its failure to receive notification of defendant’s suit against Wood, plaintiff’s insured, until after default judgment had been entered may be eliminated by defendant’s offer to open the default judgment. Following the previous decision, the case was submitted to the superior court on opposing motions for summary judgment. Defendant Champion again appeals from the grant of summary judgment in favor of plaintiff Southern General Insurance Company. Held:

Upon remand to the superior court following the earlier appeal, plaintiff presented evidence in support of its new motion for summary judgment, that no motion or other proceeding attacking the judgment had been filed by defendant and that the three-year period for the filing of a motion to set aside had passed. Plaintiff argues that it is entitled to the judgment in its favor because now the judgment against Wood cannot be set aside. However, we note that there was also no action implementing the offer in Home Indem. Co. v. Walker, 273 A2d 429, 430 (CA Md. 1971), the Maryland case from which we derived our reasoning in the earlier appeal. The onus of failing to accept the offer to open the judgment while such is a viable option must fall on the offeree. Substantially, the same issue as identified in the second division of our previous opinion remains for resolution, although the issue might now be stated in the past tense. Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129, 132 (2), supra.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1626.
    LANIER v. CITY OF MANCHESTER.
    (423 SE2d 30)
    Decided September 16, 1992
    Reconsideration denied September 28, 1992

      Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley-C. Adams III, for appellant.

      Mullins & Whalen, Andrew J. Whalen III, Nancy A. Bradford, Tyron C. Elliott, for appellee.
   McMurray, Presiding Judge.

Via traffic citation, defendant was accused of violating OCGA § 40-6-391 (a) (4). After being tried in the Municipal Court of the City of Manchester, defendant was found guilty and appealed to the Superior Court of Meriwether County. The Superior Court affirmed the judgment of the Municipal Court, and defendant appeals. Held:

In her sole enumeration of error, defendant contends the Superior Court erred in affirming the judgment of the Municipal Court because the evidence was insufficient to support her conviction.

Following her arrest, defendant was given a breathalyzer test on an Intoximeter 3000 machine. The test yielded a .14 blood/alcohol concentration result. A second test, administered only minutes later, yielded a .16 blood/alcohol concentration result. Defendant argues that her conviction cannot rest upon these test results because an Intoximeter 3000 machine has a margin of error of .01 and numerous substances, such as acetone, have been known to interfere with the test. This argument is without merit. The test results were more than sufficient to support defendant’s conviction beyond a reasonable doubt. See Brannan v. State, 261 Ga. 128, 129 (3) (401 SE2d 269). The mere fact that an Intoximeter 3000 machine “has some margin for error or may give an erroneous result under certain circumstances” does not diminish the evidentiary value of the test results. Lattarulo v. State, 261 Ga. 124, 126 (3), 127 (401 SE2d 516).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1265.
    ROBINSON et al. v. MOONRAKER ASSOCIATES, LTD. et al.
    (423 SE2d 44)
   Sognier, Chief Judge.

Robin and Donna Robinson brought suit against Moonraker Associates, Ltd. and others seeking damages for Robin Robinson’s injuries and Donna Robinson’s loss of consortium. No answer was timely filed, and a default judgment was entered in favor of the Robinsons for $96,976. Subsequently, during the same term of court, the defendants filed a motion to set aside the default judgment, which was granted, and the trial court, then opened the default pursuant to OCGA § 9-11-55 (b) and allowed the defendants to file an answer. After discovery, the defendants’ motion for summary judgment was granted, and the Robinsons appeal.

In their sole enumeration of error, appellants contend the trial court erred by granting appellees’ motion to set aside the default judgment because appellees had not paid costs as required by OCGA § 9-11-55 (b). We note initially that the provisions of OCGA § 9-11-55 (b) apply only to opening a default before judgment has been entered. Allen v. Nash, 195 Ga. App. 597, 598 (1) (394 SE2d 395) (1990). Nevertheless, since in their argument appellants do not challenge the trial court’s action in setting aside the default judgment, but see McCoy Lumber Co. v. Garland Lumber Sales, 182 Ga. App. 75, 76 (354 SE2d 686) (1987) (trial court has discretion during same term of court to set aside default judgment), we will construe appellants’ enumeration as a challenge to the trial court’s opening the default after setting aside the default judgment.

“Once a default judgment is set aside, the case returns to the posture it occupied prior to the entry of the default judgment, which posture is usually that of being in default. [Cits.] It is at this point that the procedure for opening default, set out in OCGA § 9-11-55 (b), is set into motion.” P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328-329 (1) (329 SE2d 545) (1985). Appellants note correctly that under OCGA § 9-11-55 (b) one seeking to open a default must pay costs. The record, as supplemented, shows that costs were not paid until well after the date on which the trial court allowed appellees to open the default. However, it is well established that “[a] question not raised and passed upon in the trial court presents nothing to review,” Yield, Inc. v. City of Atlanta, 145 Ga. App. 172-173 (244 SE2d 32) (1978), and the record reveals that appellants failed to raise this issue in opposition to the trial court’s opening the default. Moreover, during the nearly nine months between the date the default was opened and the trial court’s grant of appellees’ motion for summary judgment appellants further acquiesced in the ruling by participating fully in discovery in the ongoing case. “[T]his court has held that no matter how erroneous the ruling might have been (and we express no opinion on this question), a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. Failure to object to the procedure amounts to waiver.” (Citations and punctuation omitted.) Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 480 (1) (a) (382 SE2d 150) (1989). Accordingly, as appellants have not preserved their right to complain of the trial court’s action in opening the default despite appellees’ failure to pay costs, we are precluded from reviewing the action complained of. Id.

Decided September 28, 1992.

Donald W. Johnson, for appellants.

McLain & Merritt, William S. Sutton, for appellees.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1525.
    ENGLISH v. THE STATE.
    (422 SE2d 924)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of three counts of selling cocaine. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The sales of cocaine were secretly videotaped by the undercover agent who made the purchases. From the master tape of the sales, a copy was then made wherein all irrelevant material was deleted. The videotape copy was then further edited so as to freeze those frames wherein the image of the seller appeared. The frozen frames on the videotape copy were then subjected to computer enhancement and a single photographic depiction of the seller, as enhanced, was produced. At trial, the copy of the master videotape containing the frozen frames and the single computer-enhanced photographic copy of the seller were introduced into evidence. On appeal, appellant enumerates as error the admission of the computer-enhanced photographic copy.

There is no contention that the videotape copy containing the frozen frames was inadmissible. See Brown v. State, 201 Ga. App. 510, 511 (411 SE2d 366) (1991). The technician who produced the computer-enhanced photographic copy testified to that process and further testified that, in his opinion, the photographic copy, as enhanced, was a “fair and accurate” representation of what appeared in the frozen frames of the videotape copy. Accordingly, it appears that the computer-enhanced photographic copy would be no less admissible into evidence than an enlargement of a photograph would be. Enlarged photographs are admissible in evidence provided there is no distortion of the objects shown therein. Lockhart v. State, 172 Ga. App. 170, 171 (2) (322 SE2d 503) (1984). The technician testified that the computer-enhanced photographic copy was a “fair and accurate” representation and our own review shows no distortion. Accordingly, the computer-enhanced photographic copy was admissible for the jury’s consideration in evaluating the identification testimony of the State’s witnesses and the alibi testimony of appellant’s witnesses.

Decided September 28, 1992.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

2. Insofar as the general grounds are concerned, this court considers the sufficiency, not the weight, of the evidence. In the instant case, the jury, as it was authorized to do, chose to believe the State’s witnesses rather than appellant’s alibi witnesses. Construing the evidence most favorably for the State, it was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Pope and Johnson, JJ., concur.