text:
    A99A1117.
    BEECHER v. THE STATE.
    (523 SE2d 54)
   Smith, Judge.

Robert Beecher was convicted by a jury on one count of arson in the first degree. He appeals from the denial of his motion for new trial. Although we find no error in the judgment of conviction against Beecher, we agree with Beecher that his sentence must be reversed and vacated and the case remanded for resentencing.

1. Beecher contends that the trial court erroneously failed to grant his motion for directed verdict, arguing that no evidence was presented that the fire was intentionally set or that he was “anywhere near the fire.” We disagree.

Construed to uphold the jury’s verdict, evidence was presented that Beecher and the victim’s next-door neighbor, Rennenberg, were involved in a relationship, but this relationship deteriorated after Rennenberg gave birth to Beecher’s child. For example, after the child was born, Rennenberg obtained a temporary protective order against Beecher based on her allegations that he “abused, threatened, destroyed family property or perpetrated other acts of family violence.” The petition filed by Rennenberg for the protective order further stated that Beecher threatened to kill her if she left with their child, blew marijuana smoke in the child’s face, hit and punched her, and had threatened to leave with the child.

According to the victim, he often assisted Rennenberg during her relationship with Beecher. The victim stated that he allowed Rennenberg to stay in his home when Beecher “abused” her. He also testified that he drove Rennenberg to Connecticut on one occasion to get her away from Beecher, because Beecher was harassing and threatening her. The victim stated that Beecher did not “care too much for me” because of the help he gave to Rennenberg from time to time. The last such assistance occurred in early November 1995, when he drove Rennenberg and her baby to Florida as a result of Beecher’s alleged threats to Rennenberg. On November 2, while the victim was still in Florida, a large portion of his house burned.

L. S. Seabolt, Jr., an arson investigator, testified that the fire began on the back porch of the house. He determined that clothing was probably used to start the fire, that nothing indicated that the fire was accidental, and that the fire had been set by someone. Beecher’s uncle testified that during a conversation with Beecher at a local restaurant, Beecher was upset about the victim’s driving Rennenberg to Florida and stated that he would “get rid of” the victim and planned to “burn the place down.” At the same restaurant, in early November 1995, another witness overheard Beecher cursing and talking in a loud voice about the victim, stating that “he got [the victim] and he wouldn’t have to worry about [him] any more.” Although Beecher denied any involvement in the fire and presented evidence that the victim’s son and girlfriend had washed clothes at the victim’s home shortly before the fire began, the circumstantial evidence was sufficient to permit a rational trier of fact to convict Beecher under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Collins v. State, 201 Ga. App. 433-434 (1) (411 SE2d 341) (1991).

2. Beecher contends the trial court erroneously allowed the State to introduce expert testimony that the fire was intentionally set, arguing that this issue is not one subject to proof by expert opinion. We find no merit in this argument. It is well settled that an expert may give an opinion or conclusion even on the ultimate issue when that conclusion is beyond the ken of the average layman. Blackburn v. State, 180 Ga. App. 436, 437 (349 SE2d 286) (1986). And here, as in Blackburn, the cause of the fire “was such an issue as called for an expert’s conclusion.” Id.

Beecher also argues that the expert’s opinion was not based on facts introduced into evidence. This contention is belied by the record. The expert testified concerning the manner in which he investigated the fire and how he determined the fire’s point of origin. Although he could not determine whether any flammable liquid or accelerant was used, he did conclude that clothing was probably used to start the fire. Some facts on which the expert’s opinion could be based were introduced. Furthermore, the fact that an expert’s opinion may be based in part on facts not in evidence goes to the weight, and not the admissibility, of the expert’s opinion. Roberson v. State, 214 Ga. App. 208, 211 (8) (447 SE2d 640) (1994).

3. In related enumerations, Beecher contends that the court erroneously permitted the State to introduce bad character evidence, that the State committed prosecutorial misconduct by introducing such evidence, and that he was denied effective assistance of counsel by his trial counsel’s failure to object to admission of this evidence.

Throughout the trial, the State introduced evidence concerning the relationship of Beecher, Rennenberg, and the victim. For example, as mentioned above, the trial court admitted the temporary protective order obtained by Rennenberg, which alleged misconduct by Beecher toward Rennenberg. Beecher contends that this document, as well as other evidence surrounding the relationship of these three people admitted by the trial court, impermissibly placed his character in issue. We find no merit in Beecher’s contention. Beecher’s trial counsel did not object to the admission of this evidence, and he therefore has waived any error. See, e.g., Anthony v. State, 236 Ga. App. 257, 259 (2) (511 SE2d 612) (1999). As for Beecher’s broad contention that the State committed prosecutorial misconduct by placing his character in evidence, “[p]rosecutorial [mis]conduct not objected to at trial will not warrant reversal on appeal.” (Citation and punctuation omitted.) Jones v. State, 232 Ga. App. 505, 507 (3) (502 SE2d 345) (1998).

Furthermore, we cannot agree with Beecher that trial counsel’s failure to object amounted to ineffective assistance of counsel. First, Beecher’s counsel did not raise before the trial court the issue of failure to object to alleged bad character evidence as a basis for an ineffectiveness claim. Because this allegation of ineffectiveness raised by Beecher on appeal differs from those raised before the trial court, this ground is deemed waived. See Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993); Stone v. State, 229 Ga. App. 367, 371 (494 SE2d 48) (1997). Second, even assuming that Beecher has not waived appellate review of this contention, the evidence admitted by the trial court was relevant and admissible to show the relationship between Beecher and the victim and Beecher’s possible motive. Relevant evidence is not inadmissible merely because it may incidentally place a defendant’s character into evidence. See, e.g., Speed v. State, 270 Ga. 688, 691 (8) (512 SE2d 896) (1999).

Decided September 29, 1999

Reconsideration denied October 21, 1999

Phillips & Kitchings, Richard D. Phillips, Joseph C. Kitchings, for appellant.

4. Beecher contends he was denied effective assistance of counsel because his trial counsel failed to call a certain witness who may have provided exculpatory evidence. Beecher’s trial counsel testified that she believed this witness could provide no information helpful to Beecher. Also, although Beecher submitted an unsworn, post-trial statement of this witness, implicating the victim in the fire, Beecher’s trial counsel testified that she spoke with the witness before trial and his testimony at trial would have differed from the recitations made in the statement. Under these circumstances, we find no merit in Beecher’s claim that his trial counsel was ineffective, for this claim is “grounded in matters of trial tactics and strategy and [does] not provide a basis for finding counsel lacking.” (Citation and punctuation omitted.) Rutledge v. State, 237 Ga. App. 390, 392 (2) (515 SE2d 1) (1999). Tactical or strategic decisions such as the failure to call certain witnesses “do not equate with ineffective assistance of counsel.” (Citation and punctuation omitted.) Id.

5. Beecher contends that the State failed to give him adequate notice that it intended to introduce evidence of prior convictions during the sentencing phase of his trial. We are constrained to agree. Under OCGA § 17-10-2 (a), a trial judge is authorized to hear evidence in aggravation of punishment, including a defendant’s prior criminal record, provided that the State has notified the defendant of its intent to introduce such evidence. Here, Beecher’s original trial on June 23, 1997, ended in a mistrial. On the same date, before trial, the State filed a notice of its intention to introduce evidence in aggravation of punishment, evidence that included two prior convictions. But the record does not show that the State notified Beecher, before his second trial, of its intent to introduce evidence in aggravation of punishment. This was error. A notice that previous convictions will be introduced at trial “given prior to a former trial would not be clear notice that the sentences would be introduced at a subsequent de novo trial.” Hewell v. State, 238 Ga. 578, 580 (2) (234 SE2d 497) (1977). See also Cline v. State, 178 Ga. App. 470,-473-474 (3) (343 SE2d 506) (1986). Consequently, the judgment as to sentence must be vacated and this case remanded for resentencing.

Judgment affirmed as to conviction. Judgment vacated as to sentence and case remanded for resentencing.

Pope, P. J., and Eldridge, J., concur.

J. Thomas Durden, Jr., District Attorney, James S. Archer, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A1257.
    PRINDLE v. THE STATE.
    (523 SE2d 44)
   Johnson, Chief Judge.

The trial court, sitting without a jury, found William Prindle guilty of driving under the influence of alcohol (“DUI”) and speeding. Prindle appeals, arguing that the prosecutions were time-barred, the officer who administered the breath test did not have a valid permit to conduct the test, and the trial court admitted evidence which should have been excluded due to the state’s failure to comply with discovery rules. Because each contention is without merit, we affirm.

1. Prindle contends that his convictions must be reversed because the accusations were filed more than two years after he allegedly committed the offenses. This enumeration is without merit.

Prosecution for a misdemeanor must be commenced within two years after the offense was committed. OCGA § 17-3-1 (d). The two-year period runs from the date the offense was committed until the date the original accusation is filed. Freeman v. State, 194 Ga. App. 905, 907-908 (8) (392 SE2d 330) (1990); OCGA § 16-1-3 (14). A prosecution continues until there has been a final disposition of the case. OCGA § 16-1-3 (14). A uniform traffic citation serves as an accusation in any court having jurisdiction over the offense, except superior court. See OCGA §§ 40-13-1; 40-13-3; State v. Rustin, 208 Ga. App. 431, 433 (2) (430 SE2d 765) (1993). Prior to trial, the state can amend the accusation to change the allegations regarding any offense arising out of the same conduct which gave rise to an offense alleged or attempted to be alleged in the original accusation. OCGA § 17-7-71 (f); see Thomas v. State, 233 Ga. App. 224, 225 (1) (504 SE2d 59) (1998).

On February 16, 1995, police issued Prindle uniform traffic citations charging him with DUI (with an unlawful blood-alcohol concentration) and speeding. The citation for DUI showed the date of the offense, the Code section allegedly violated (former OCGA § 40-6-391 (a) (4)), and Prindle’s breath test result of 0.132. The citation for speeding showed the date of the offense, that Prindle was allegedly driving 70 mph in a 55-mph zone, and the Code section he allegedly violated (OCGA § 40-6-181). The citations were filed in Atlanta City Court on February 20, 1995. On March 17, 1995, Prindle waived formal arraignment and demanded a jury trial.

On February 18, 1997, the state filed accusations in city court charging Prindle with DUI with an alcohol concentration of 0.10 grams or more (citing former OCGA § 40-6-391 (a) (4)), and speeding by driving 70 mph in a 55-mph zone (citing OCGA § 40-6-181). The accusations gave the same date of the offenses as was shown on the citations.

The amended accusations filed in 1997 did not constitute the commencement of a new prosecution. There had been no final disposition of the previously filed accusations. The amended accusations were a continuation of the prosecution commenced earlier. See Rustin, supra. We find that, contrary to Prindle’s argument, the state has shown that the amended accusations were based on the same conduct as the original citations. The trial court did not err in refusing to dismiss the charges on the ground that the statute of limitation expired. See generally Freeman, supra at 908 (8).

2. Prindle’s argument that the breath test results should not have been admitted because the officer conducting the test was not properly certified is without merit.

OCGA § 40-6-392 (a) (1) (A) provides, in relevant part, that the chemical analysis of a person’s breath is valid if performed by a person possessing a valid permit issued by the Division of Forensic Sciences (“DFS”) of the Georgia Bureau of Investigation (“GBI”).

The police officer who tested Prindle’s breath testified that he was trained to use the type of breath machine used in this case, that he took a refresher course in its use, and that he held a valid permit at the time the test was conducted. The state introduced into evidence a copy of the certificate the DFS issued to the officer authorizing him to conduct tests with the type of breath machine used in this case. The certificate was valid from November 18, 1994 through November 18, 1996; the officer tested Prindle’s breath in February 1995.

Prindle argues that the permit was not valid because the officer did not take an eight-hour refresher course in chemical breath analysis, as required by GBI Rule 92-3-.04 (6). That rule provides that applications for permit renewal shall not be approved unless the applicant completes at least one eight-hour refresher course in chemical breath analysis. Prindle asserts that the refresher course attended by the officer in this case lasted less than eight hours, so his permit application should not have been approved.

The record does not demonstrate that the DFS improperly issued the permit. First, the officer testified that he took a refresher course and, although he believed the course lasted only about four or five hours, he was not sure how long it lasted. Second, it is not clear from the record whether the certificate issued to the officer on November 18, 1994 (and facially valid at the time of the test) was a renewal certificate. The record does not show when the officer took the refresher course and whether that course was the basis for an initial permit or a renewal. Given the undisputed evidence that the officer conducting the test was trained to use the breath machine used here, took a refresher course on its use, and had a certificate that was valid on its face on the date of the test, we find that the state satisfied its burden of proving the officer had a valid permit. See generally Daniel v. State, 231 Ga. App. 125, 128 (2) (b) (497 SE2d 656) (1998); Waggoner v. State, 228 Ga. App. 148, 150-151 (3) (a) (491 SE2d 88) (1997). The trial court did not err in admitting the evidence.

3. Prindle argues that reversal is required because the trial court allowed the state to introduce into evidence scientific reports which it did not provide to Prindle before trial, despite his request to produce scientific reports.

Prindle complains that the court allowed a police officer to refresh his memory in court by reviewing his report regarding the horizontal gaze nystagmus (“HGN”) test (a field sobriety test) and testifying as to the report’s contents. HGN test results are discoverable as scientific reports. Rayburn v. State, 234 Ga. App. 482, 484 (2) (506 SE2d 876) (1998). Because Prindle requested but was not provided a copy of the report, the officer’s testimony regarding the report should have been excluded. Id. at 485; OCGA § 17-16-23 (c). The burden is on Prindle, however, to show not merely error, but harm. See Rayburn, supra.

Prindle was charged with driving a car while his blood-alcohol concentration was 0.10 grams or more. The breath test indicated he had a blood-alcohol level of 0.132. While the HGN test results would have been relevant to the less safe driver charge, that charge was not prosecuted. The HGN test results were not needed to show that Prindle drove with an unlawful blood-alcohol concentration. He has not shown how the evidence harmed him. See Chastain v. State, 231 Ga. App. 225, 226 (2) (498 SE2d 792) (1998).

Prindle also complains that the court improperly allowed the state to introduce a certificate of inspection of the breath test machine, when the state failed to provide him with a copy of the certificate in response to his request for scientific reports. Certificates of inspection are not discoverable as scientific reports under OCGA § 17-16-23. Renschen v. State, 225 Ga. App. 678, 679 (3) (484 SE2d 753) (1997). This enumeration presents no basis for reversal.

Judgment affirmed.

Smith and Eldridge, JJ, concur.

Decided September 28, 1999

Reconsideration denied October 21, 1999

William C. Head, for appellant.

Joseph J. Drolet, Solicitor, Shondeana G. Crews, Assistant Solicitor, for appellee.

       Prindle was also charged in the amended accusation with DUI to the extent it was less safe to drive (OCGA § 40-6-391 (a) (1)). The “less safe to drive” count was not charged in the original accusation, but because it was not prosecuted, it is not at issue here.


author: Andrews, Presiding Judge.

text:
    A99A1571.
    DEPARTMENT OF TRANSPORTATION v. CUSHWAY.
    (523 SE2d 340)
   Andrews, Presiding Judge.

Sean D. Cushway was killed when the automobile he was driving at night on Interstate 75 crashed into a lighted drum placed as a traffic control device at the site of an ongoing road construction project. The project to add a lane to 1-75 was under construction by a contractor hired by the Georgia Department of Transportation (DOT). Cushway’s surviving spouse, Tera Cushway, alleged in a wrongful death suit against the DOT under the Georgia Tort Claims Act that the fatal crash was caused by the contractor’s failure to place adequate traffic control devices to safely guide approaching motorists through the construction area. She claimed the DOT was liable for this failure because it had a duty under the construction contract to supervise the contractor’s placement of the traffic control devices, and it negligently failed to ensure that the devices were placed in accordance with the required standards.

The DOT conceded that it had a contractual duty to ensure that the contractor placed the traffic control devices in accordance with the required standards, but moved for summary judgment on the basis that Cushway’s claim was a professional negligence claim, and no expert affidavit was filed with the complaint as required by OCGA § 9-11-9.1. The trial court denied the motion ruling that Cushway’s entire claim sounded in ordinary negligence and that no expert affidavit was required.

We granted the DOT’s application for an interlocutory appeal to review the denial of summary judgment. Because we find that Cushway’s complaint sounds partly in professional negligence and partly in ordinary negligence, we affirm in part and reverse in part.

Since the average layperson is not familiar with the design and function of traffic control devices, when a plaintiff claims that the choice and placement of traffic control devices were negligent, the claim usually asserts negligent engineering design decisions which sound in professional negligence and require that an expert affidavit in compliance with OCGA § 9-11-9.1 accompany the complaint. Dept. of Transp. v. Brown, 267 Ga. 6, 7-8 (471 SE2d 849) (1996); Dept. of Transp. v. Mikell, 229 Ga. App. 54, 56-60 (493 SE2d 219) (1997). In the present case, the contract between the DOT and the contractor provided that the traffic control devices would be placed in accordance with the standards of the Manual on Uniform Traffic Control Devices (MUTCD), which has been recognized in Georgia as setting forth generally accepted engineering design standards for such devices. Brown, 267 Ga. at 8; OCGA § 32-6-50. It has also been recognized that the MUTCD contains standards that fall into mandatory, advisory, and permissive categories. Mikell, 229 Ga. App. at 57-58. Because MUTCD standards in the advisory and permissive categories necessarily involve the exercise of professional engineering judgment in their application, the OCGA § 9-11-9.1 affidavit of an engineering expert must accompany the complaint alleging violations in those categories. Id. at 56-58. A complaint charging the violation of a mandatory MUTCD standard does not need an expert affidavit if the application of the standard requires no professional engineering judgment.

The complaint in this case alleges that the placement of the traffic control devices at the construction site failed to give Cushway adequate warning at night of an approaching lane closure in which lighted signs were used to give advance warning of the approaching lane closure, and a tapered line of lighted drums was used to gradually close the lane. The complaint states that the failure caused Cushway to hit one of the drums which, in turn, caused a light attached to the drum to separate from the drum, crash through the windshield of the car, and fatally injure Cushway. The complaint alleges various negligent failures to comply with the standards of the MUTCD in the placement of the traffic control devices. The allegations may be summarized as follows: (1) advance warning signs were inadequate, were not placed at proper distances, and did not properly warn motorists to reduce speed; (2) the lights on the signs and drums were not bright enough to be clearly visible; (3) the light which separated from the drum hit by the car was not properly attached to the drum; and (4) advance warning signs were placed that contained inaccurate and confusing information as to the distance of the approaching construction site.

Decided October 6, 1999

Reconsiderations denied October 21, 1999

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, for appellant.

Gerry E. Holmes, for appellee.

We find that the first three of the above four allegations fall within the advisory or permissive categories of the MUTCD and therefore sound in professional negligence requiring that an expert affidavit under OCGA § 9-11-9.1 accompany the complaint. See Mikell, 229 Ga. App. at 58. Accordingly, the trial court erred to the extent it denied summary judgment to the DOT with respect to these three allegations of the complaint. As to the fourth allegation — that warning signs gave Cushway inaccurate and confusing information as he approached the construction site — we find that this allegation of the complaint sounds in ordinary negligence. It does not require the exercise of professional engineering judgment to support a claim that warning signs which gave Cushway inaccurate and confusing information about the approaching construction site constituted negligence which contributed to the fatal accident. Accordingly, the trial court correctly denied summary judgment to the DOT as to this allegation.

Judgment affirmed in part and reversed in part.

Ruffin, J., concurs.

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

       The DOT preserved this defense by raising the failure to file the expert affidavit in its initial responsive pleading to the complaint.

       The charge that the DOT’S failure to supervise and inspect placement of the devices was the negligent act does not change the analysis. Even if the DOT’s supervision or inspection was negligent, it was a proximate cause of the complained-of accident only if the devices themselves were placed in a manner that violated the applicable standards.

       In addition to supplemental lights, the drums displayed reflectorized stripes as required by the MUTCD.

       The DOT also sought summary judgment as to this allegation on the basis that the design standards exception in OCGA § 50-21-24 (10) rendered it immune from suit under the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.). Since on the present record a factual question exists as to whether the DOT violated generally accepted nonexpert design standards concerning the accuracy of information given in the advance warning signs, this exception did not entitle the DOT to summary judgment.


author: Ruffin, Judge. ANDREWS, Presiding Judge,

text:
    A99A1573.
    J. H. HARVEY COMPANY v. REDDICK.
    (522 SE2d 749)
   Ruffin, Judge.

J. H. Harvey Company (“Harvey”) appeals from the trial court’s denial of its motion for summary judgment in this slip-and-fall premises liability case. Harvey also appeals the trial court’s denial of its motion to strike and objections to plaintiff Carolyn Reddick’s deposition errata sheet. For reasons that follow, we affirm.

1. The standard of review applicable to motions for summary judgment is well established:

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Moreover, with respect to slip-and-fall cases, we are reminded by the Supreme Court that

the “routine” issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.

Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997).

Viewed in the light most favorable to Reddick, the evidence shows as follows. At approximately 5:55 p.m. on September 5, 1996, Reddick slipped and fell while shopping in a Harvey grocery store in Americus. Reddick was walking down an aisle displaying bread on one side and frozen foods on the other when her right foot slipped on “something slippery,” causing her to fall forward onto her knees. As she was getting up, Reddick saw two scuppernongs on the floor to her left. Reddick does not know whether she actually stepped on the scuppernongs, does not recall whether they were whole or squashed flat, and does not know if they caused her to fall. Reddick does not recall seeing anything else on the floor that might have caused her to fall, and she does not remember seeing any substance on the knees of her slacks after she got up. Reddick assumed, however, that the scuppernongs caused her to fall because she noticed them on the floor near her after she fell.

After Reddick got up, she reported the incident to the store’s assistant manager, Bruce Jones. Reddick and Jones returned to the aisle where Reddick had fallen, and Jones saw two scuppernong skins on the floor. According to Jones, scuppernongs are generally located in the produce department, several aisles away, and one would not expect to find them in the aisle where Reddick fell. After examining the area, Jones completed an accident report in which he stated that “[a]n unknown customer was apparently eating scuppernongs and threw the outer skin on the floor. (2 scuppernongs). [Red-dick] walked around the corner next to the bread and said she slipped and fell on her knees.” During his deposition, Jones explained that in the past, customers at the store had eaten scuppernongs and thrown them on the floor. A former Harvey employee, Reginald Adams, testified by affidavit that the Americus store “had problems with items on the floor. These problems included customers eating items in the store and then throwing the items on the floor.”

Harvey filed a motion for summary judgment, and the trial court denied it. We then granted Harvey’s application for interlocutory appeal.

To prove negligence in a foreign substance slip-and-fall case, the plaintiff must show “(1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” (Punctuation omitted.) Robinson, supra at 736. Harvey maintains that it is entitled to summary judgment on several grounds, each of which we reject.

(a) First, Harvey argues that Reddick failed to present any evidence that her fall was caused by the scuppernongs on the floor of the store. To survive summary judgment, a slip-and-fall plaintiff “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.” (Punctuation omitted.) Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220 (1) (511 SE2d 579) (1999). Reddick admitted during her deposition that she did not know what caused her to fall, but stated that she assumed the scuppernongs were responsible. Citing Hall v. Cracker Barrel &c., 223 Ga. App. 88 (476 SE2d 789) (1996), Harvey contends that Reddick’s testimony demonstrates the absence of causation in this case. We disagree.

In Hall, the plaintiff slipped and fell on wood flooring which she described as “slippery.” Id. at 88. Although she alleged that the floor was excessively waxy, the plaintiff failed to present any evidence of a foreign substance on the floor which could have created a slippery condition. Likewise, the plaintiff failed to show that the defendant improperly cleaned or maintained the floors. We concluded that the plaintiff’s bare assertion that the floor was “slippery,” without more, was insufficient to create an issue of fact as to whether the fall was caused by the defendant’s negligence. Id. at 93. We noted that “proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.” (Punctuation omitted.) Id. at 90.

In this case, by contrast, Reddick has presented evidence of a foreign substance — two scuppernongs on the floor in the area where she fell — that could have created the slippery condition she alleged. We are required on a motion for summary judgment to view the facts and inferences in a light most favorable to Reddick. See Lau’s Corp., supra. Although Reddick could not positively state that the scuppernongs caused her to fall, reasonable jurors could make such an inference based on the proximity of the fruit to Reddick after the fall, the alleged “slipper/’ condition of the floor, and the assistant manager’s statement after Reddick’s fall that he saw scuppernong skins, rather than whole fruit. See Williams v. EMRO Marketing Co., 229 Ga. App. 468, 472 (2) (494 SE2d 218) (1997) (Ruffin, J., concurring specially) (evidence permitted reasonable inference that plaintiff slipped and fell on ice even though plaintiff did not see what he slipped on).

(b) Second, Harvey contends that Reddick failed to prove that it had actual or constructive knowledge of the presence of the scuppernongs on the floor. Reddick argues that Harvey had both actual and constructive knowledge of the hazard. We find no evidence of actual knowledge, but agree with Reddick that there are factual disputes concerning Harve/s constructive knowledge.

Reddick’s actual knowledge argument is based on (1) Jones’ deposition testimony that customers previously had eaten scuppernongs and thrown them on the floor and (2) the affidavit of former Harve/s employee Reginald Adams that the store had a problem with customers throwing food on the floor. To establish actual knowledge, however, Reddick must do more than merely show that Harvey’s employees had a general knowledge that a hazardous condition might exist. See J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 810 (440 SE2d 548) (1994) (“although management had knowledge of the periodic defrosting of the meat cooler, the record does not show that any employee or manager of the supermarket had actual knowledge of the alleged water leakage onto the floor prior to Johnson’s fall”), overruled in part on other grounds, Robinson, supra. Here, Jones testified merely that customers had thrown scuppernongs on the floor in the past. There is no evidence concerning the date or frequency of such incidents and no evidence that Jones had actual knowledge of any customers throwing food on the floor on the day that Reddick fell. Adams averred only that the store had “problems with items on the floor . . . including] customers eating items in the store and then throwing the items on the floor.” Adams did not state that he was aware of scuppernongs on the floor on the dáy of Reddick’s fall, or even that he was working in the store that day. This evidence is not sufficient to establish Harve/s actual knowledge of the hazard.

Reddick also maintains that Harvey had constructive knowledge of the hazard. Constructive knowledge can be proven by showing either (1) “that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance” or (2) “that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery.” (Punctuation omitted.) Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631 (3) (b) (493 SE2d 196) (1997). As Reddick testified that she did not see any Harvey employees around when she fell, and there was no other evidence of store employees in her immediate vicinity, she must use the second method of proving constructive knowledge. To withstand a motion for summary judgment using that method, “a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998) (whole court). Thus, we must determine whether Harvey has established that it had in place a reasonable inspection procedure which it was following on the afternoon of Red-dick’s fall.

Harvey presented evidence that, at the time of Reddick’s fall, the Americus store had an inspection policy requiring that the floor be swept and spot mopped at least every two hours, or more often as needed. The sweeping included spot mopping to remove foreign substances from the floor. Employees were required to punch in and out on a “sweep card” when beginning and ending the sweep and to initial the card upon completion. Harvey also submitted the affidavit of employee Brad Satterfield, who averred that on the day Reddick fell he swept the entire floor area of the store from 3:25 p.m. until 4:14 p.m., and again from 5:17 p.m. until 6:01 p.m., as indicated on the relevant sweep card. Satterfield testified that he swept the aisle where Reddick fell approximately one hour and forty-two minutes before her fall and found no trash, debris, or liquid in the area. Finally, Harvey submitted the sweep card for the week of Reddick’s fall, which bears Satterfield’s initials beside two punched entries on the day in question recording time “in a type of military time with minutes reflected in hundredths of an hour.” In the absence of any evidence to the contrary, the sweep card, coupled with the testimony of Jones and Satterfield, establishes that the area where Reddick fell was swept one hour and forty-two minutes prior to her fall, and that no foreign substance was found.

We cannot conclude as a matter of law, however, that Harvey’s inspection procedure was reasonable under the circumstances. The length of time that a foreign substance must remain on the floor before a proprietor should have discovered it — and, by extension, what constitutes a reasonable frequency of inspections — “will vary with the circumstances of each case (the nature of the business, size of the store, the number of customers, the nature of the dangerous condition and the store’s location).” (Punctuation omitted.) Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 510 (2) (496 SE2d 732) (1998). In cases where a proprietor has shown that an inspection occurred within a brief period prior to an invitee’s fall, we have held that the inspection procedure was adequate as a matter of law. See, e.g., Deloach v. Food Lion, 228 Ga. App. 393, 394-395 (491 SE2d 845) (1997) (area where plaintiff fell was inspected ten minutes prior to fall, establishing reasonable care as a matter of law); Jenkins v. Bi-Lo, 223 Ga. App. 735, 736-737 (479 SE2d 14) (1996) (same); Super Discount Markets v. Clark, 213 Ga. App. 132, 133 (443 SE2d 876) (1994) (inspection occurred fifteen to twenty minutes prior to incident). Here, the floor had not been swept or inspected for one hour and forty-two minutes before Reddick fell, and the scuppernongs could have remained on the floor that long. There also was testimony that Harvey was aware that customers occasionally ate food — including scuppernongs — and threw the residue on the floor, and that the floor was brown and could camouflage dropped or spilled food. Moreover, Jones admitted during his deposition that one hour and forty-two minutes was “too long for a substance to be on the floor.” Under these circumstances, we conclude that the reasonableness of Harvey’s inspection and cleaning procedures is a question for the jury and that Harvey was not entitled to summary judgment on the issue of constructive knowledge. See Jones v. Krystal Co., 231 Ga. App. 102, 104-105 (d) (498 SE2d 565) (1998) (failure to inspect floor of fast food restaurant for twenty minutes or longer could be unreasonable); Smith v. Toys “R” Us, 233 Ga. App. 188, 191-192 (1) (504 SE2d 31) (1998) (failure to inspect store entrance area during period of one hour and thirty minutes gave rise to jury question on reasonableness of inspection procedures).

(c) Harvey also sought summary judgment on the ground that Reddick failed to exercise ordinary care for her own safety. Reddick testified that she did not look down at the floor before she fell. She also testified that the fruit on which she allegedly slipped was large and could have been as big in diameter as a soda can. Harvey argues that this evidence establishes that had she been exercising ordinary care for her own safety, Reddick would have noticed the fruit before she fell. However, this, too, is a jury question.

In Robinson, the Supreme Court rejected the argument that “an invitee fails to exercise ordinary care for personal safety as a matter of law when the invitee admits she failed to look at the location where she subsequently placed her foot.” Id. at 743. An invitee is not required to maintain a constant lookout, but “is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.” Id. Accordingly, Reddick’s failure to look before she stepped does not establish negligence on her part as a matter of law. Additionally, contrary to Harvey’s assertions, the evidence does not establish conclusively that Reddick would have noticed the fruit had she glanced down. The size of the scuppernongs is a matter of dispute, as Jones testified that they were approximately the size of a quarter. Moreover, the evidence showed that the color of the floor could have camouflaged the scuppernongs. Under these circumstances, Harvey is not entitled to summary judgment on this issue. See Kroger Co. v. Brooks, 231 Ga. App. 650, 656 (2) (500 SE2d 391) (1998).

2. In its second enumeration of error, Harvey contends that the trial court erred in denying its motion to strike and objections to Red-dick’s substantive changes to her deposition. We find no error.

After giving her deposition, Reddick submitted an errata sheet listing 16 changes to answers in her deposition transcript. Most of the changes substantively altered her testimony as previously recorded on material issues in the case, but did not clearly contradict it. For example, Harvey’s attorney asked Reddick during her deposition about the size of the fruit on which she allegedly slipped, as follows: “Q. We have got a 7-Up can on the table. Were they the size of that 7-Up can, that big around? A. Yes, they were. If I can remember, as far as my knowledge, when I was getting up, they was large red plums.” On her errata sheet, Reddick changed her answer to “[t]hey were regular size plums” and gave as the reason for the change, “I did not understand the question.” This change is consistent with her answer to a previous question that the plums were “regular” in size. As another example, Reddick replied, “I don’t know,” when asked in her deposition whether she had reached a conclusion about what caused her to fall, but in her errata sheet she changed this answer to “[sjomething slippery on the floor,” citing confusion about the question as the reason for the change. The new answer on the errata sheet is consistent with other testimony in Reddick’s deposition in which she attributed her fall to a “slippery” substance on the floor. Harvey filed a motion to strike and objections to the errata sheet, arguing that Reddick could not substantively change her deposition testimony because her lawyer did not object to the questions posed to Reddick at the deposition.

OCGA § 9-11-30 (e) provides as follows:

If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate . . . whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.

(Emphasis supplied.) Although our Georgia courts have not directly addressed the question of whether a witness may make substantive, material changes to his deposition, the statute expressly contemplates changes to form or substance. In addition, federal courts which have addressed this issue have overwhelmingly concluded that a witness may make “any changes in form or substance which the witness desires, even if the changes contradict the original answers or even if the deponent’s reasons for making the changes are unconvincing.” (Citation and punctuation omitted.) Lugtig v. Thomas, 89 FRD 639, 641 (N.D. Ill. 1981); see also, e.g., Podell v. Citicorp Diners Club, 112 F3d 98, 103 (2nd Cir. 1997); Innovative Marketing &c. v. Norm Thompson Outfitters, 171 FRD 203, 204-205 (W.D. Tex. 1997); Allen & Co. v. Occidental Petroleum Corp., 49 FRD 337, 340 (S.D. N. Y. 1970); Colin v. Thompson, 16 FRD 194, 195 (W.D. Mo. 1954). These decisions are based on the plain language of Federal Rule 30 (e), which is virtually identical to OCGA § 9-11-30 (e).

There are several important safeguards which curtail abuse on the part of the deponent. First, the deponent’s original answers remain part of the record and can be read at trial to impeach the witness or for further clarification. Scarbrough v. Dover Elevator Co., 232 Ga. App. 149, 153 (a), n. 5 (500 SE2d 616) (1998); Lugtig, supra at 641. This is because “a deposition is not a ‘take home examination’ and an ‘errata sheet’ will not eradicate the import of previous testimony taken under oath.” Rios v. Welch, 856 FSupp. 1499, 1502 (D. Kan. 1994), aff’d, Rios v. Bigler, 67 F3d 1543 (10th Cir. 1995). Second, if the changes are “so substantial as to cause the deposition to become incomplete or useless without further testimony,” then the examiner may reopen the deposition and propound further questions to the witness concerning the nature of and reason for the changes. Allen & Co., supra at 341; see also Lugtig, supra at 642. Finally, where the deponent is a party, his self-contradictory testimony must be construed against him and cannot create an issue of fact for the purpose of summary judgment unless the contradiction is adequately explained. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-29 (1) (343 SE2d 680) (1986).

Despite the plain language of OCGA § 9-11-30 (e), Harvey argues that a witness’ ability to change his deposition is limited by OCGA § 9-11-32 (d) (3) (B), which provides that

[e]rrors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, . . . and errors of any kind which might be obviated, removed, or cured if promptly presented are waived unless seasonable objection thereto is made at the taking of the deposition.

According to Harvey, Reddick’s failure to understand the questions posed to her constituted an error or irregularity that could have been corrected during the deposition and was therefore waived. We disagree. First, we question whether a witness’ failure to understand a question is an “error or irregularity” within the meaning of OCGA § 9-11-32 (d) (3) (B). Georgia courts have interpreted deposition errors and irregularities to include such matters as failure of the attorney to object to the form of a question, Haynes v. McCambry, 203 Ga. App. 464, 468 (3) (416 SE2d 893) (1992); to the competency of the deponent to testify, Rigby v. Powell, 236 Ga. 687-688 (1) (225 SE2d 48) (1976); or to the videotaping of the deposition, DuBois v. Ray, 177 Ga. App. 349, 351-352 (1) (339 SE2d 605) (1985). Harvey cites no case holding that a witness’ failure to understand a question constitutes a deposition error or irregularity. Second, as a matter of common sense, the waiver provision of OCGA § 9-11-32 (d) (3) (B) can apply only to errors or irregularities which were known at the time of the deposition. Harvey asserts that Reddick must have known during the deposition that she did not understand the questions at issue, but this is not necessarily the case. Reddick may have thought that she understood the questions, but later realized upon reading them that, in fact, she did not. In light of the plain language of OCGA § 9-11-30 (e) permitting, without limitation, changes to form and substance, we decline to adopt Harvey’s strained interpretation of OCGA § 9-11-32 (d) (3) (B).

Applying these principles to the instant case, we find that Red-dick was entitled to make the changes to her deposition testimony. She reserved her right to read and sign her deposition transcript, apparently submitted her errata sheet in a timely manner, and provided explanations for the changes. See OCGA § 9-11-30 (e). Although her changes substantively alter her original deposition testimony, they do not clearly contradict it and therefore do not require application of the Prophecy rule described above. Under these circumstances, the trial court did not err in denying Harvey’s motion to strike and objections.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Smith and Eldridge, JJ, concur. Andrews, P. J., dissents.

ANDREWS, Presiding Judge,

dissenting.

J. H. Harvey Company (Harvey) was entitled to summary judgment because there is an absence of evidence to support Reddick’s claim that Harvey had actual or constructive knowledge of the hazard.

In order for Reddick to prevail on her claim against Harvey, she was required to prove that Harvey had actual or constructive knowledge of the hazard which she claims caused her slip and fall. Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997); Alterman Foods v. Ligón, 246 Ga. 620, 622-623 (272 SE2d 327) (1980). Since there was no evidence that Harvey had actual knowledge of the hazard prior to the slip and fall, the issue is whether Harvey had constructive knowledge. There being no evidence that any Harvey employee was in the immediate area of the hazard and could have easily seen and removed it prior to the fall, this method of proving constructive knowledge was not available to Reddick. Moreover, there was no evidence as to how long the hazard at issue had been on the floor before Reddick apparently slipped on it and fell, or how it got there. As set forth in the majority opinion, the critical issue on these facts is whether Harvey had constructive knowledge of the hazard because it had remained on the floor for such a length of time that the hazard should have been discovered and removed by Harvey in the exercise of ordinarily diligent inspection and cleaning procedures. Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631 (493 SE2d 196) (1997).

On these facts it is a matter of pure speculation as to whether the hazard may have been placed on the floor a minute or two before Reddick slipped on it, or whether it may have been placed on the floor shortly after Harvey inspected and swept the area some one hour and forty-two minutes prior to Reddick’s slip and fall. Clearly, if the hazard was placed on the floor only a minute or two before Reddick’s slip and fall, no reasonable trier of fact could conclude that the hazard should have been discovered and removed by Harvey in the exercise of ordinarily diligent inspection procedures. On the other hand, even if Harvey had no actual knowledge of the hazard on the floor, if the hazard had been on the floor since shortly after the last floor inspection for almost one hour and forty-two minutes prior to Red-dick’s slip and fall, a reasonable trier of fact could conclude that it had been there long enough so that a reasonable inspection procedure would have discovered it, and thus constructive knowledge of it should be imputed to Harvey. In other words, a reasonable trier of fact could conclude under the circumstances that ordinary diligence required Harvey to inspect the floor for hazards more often than every one hour and forty-two minutes, but no reasonable trier of fact could conclude that ordinary diligence required Harvey to inspect the floor every minute or two. As this Court has repeatedly held for decades:

To sustain plaintiff’s cause of action in the failure to inspect case it is necessary that she prove a period of time the dangerous condition has been allowed to exist. Without such proof, it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard. Banks v. Colonial Stores, 117 Ga. App. 581 (161 SE2d 366) (1968). Winn-Dixie Stores, Inc. v. Hardy, [138 Ga. App. 342, 345 (226 SE2d 142) (1976)].

(Punctuation omitted.) Kroger Co. v. Brooks, 231 Ga. App. 650, 654 (1) (b) (500 SE2d 391) (1998). Similarly, our Supreme Court has held:

[Although] the proprietor may be liable if he fails to exercise reasonable care in inspecting and keeping the premises in safe condition!,] [t]o sustain a cause of action in [this] type case the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case[,] the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition and the store’s location.

(Citations and punctuation omitted.) Alterman Foods, 246 Ga. at 622-623.

It follows that, if there is no evidence as to how long the hazard had been on the floor before Reddick slipped and fell on it, neither a judge nor a jury as the trier of fact could conclude, without speculating, that the hazard had been there long enough so that it should have been discovered by Harvey had reasonable inspections been performed. It also follows that, if the hazard had not been on the floor long enough to have been discovered by a reasonable inspection, then any failure by Harvey to conduct a reasonable inspection was not the cause of Reddick’s slip and fall. Rather, if the hazard had been on the floor, for example, only a minute or two before Reddick slipped and fell on it, the sole cause of the slip and fall was the negligence of the unknown party who placed the hazard on the floor. In the absence of any evidence as to how long the hazard had been on the floor before Reddick slipped and fell, the trier of fact would be left to speculate as to how long it had been there and whose negligence caused the slip and fall.

A verdict finding that a defendant’s negligence caused the plaintiff’s injury cannot be sustained on the basis of speculation or conjecture.

On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

(Citations and punctuation omitted.) Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (456 SE2d 93) (1995). Thus, a determination as to how long the hazard was on the floor prior to the slip and fall is essential to Reddick’s claim that Harvey had constructive knowledge of the hazard because it had been on the floor long enough to have been discovered by a reasonable inspection. Alterman Foods, 246 Ga. at 623; Colonial Stores, 117 Ga. App. at 581; Brooks, 231 Ga. App. at 654. Since the trier of fact in the present case cannot be allowed to speculate as to whether the hazard had been on the floor for as little as a minute or for as much as one hour and forty-two minutes, Harvey would be entitled to a directed verdict at any trial where Reddick sought to prove that Harvey’s negligent failure to conduct reasonable inspections caused her slip and fall. Nelson, 216 Ga. App. at 757.

One would logically assume that any case whose evidentiary posture would entitle the defendant to a directed verdict at trial would also entitle the defendant to pre-trial summary judgment so as to avoid the expense of an unwinnable trial. This was the clear message sent by our Supreme Court when in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), it adopted what had long been the summary judgment rule in federal courts:

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleádings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

Id. Although Harvey had the burden on its motion for summary judgment of showing that there is no material issue of fact, Harvey’s defense that it lacked constructive knowledge of the hazard is not an affirmative defense, and the evidentiary burden at trial on this issue rests with Reddick. Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 685 (498 SE2d 748) (1998); Robinson, 268 Ga. at 748-749. Since Harvey has no burden to produce evidence at trial in support of its lack of constructive knowledge defense, under Lau’s Corp., Harvey has no burden on summary judgment to affirmatively produce evidence to disprove Reddick’s claim that it had constructive knowledge of the hazard; rather it can point to the absence of evidence to support a triable issue on constructive knowledge. Id.

Nevertheless, the majority opinion, and the recent decision of this Court upon which it relies, requires Harvey to do precisely what Lau’s Corp. says it is not required to do. Citing this Court’s opinion in Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (500 SE2d 353) (1998), the majority opinion holds that, when a slip and fall defendant moves for summary judgment asserting lack of constructive knowledge of the hazard, it cannot discharge its burden by pointing to the absence of evidence as to how long the hazard had been on the floor until it first affirmatively produces evidence to disprove the plaintiff’s case by showing that it had in place and followed reasonable inspection procedures at the time of the slip and fall. See Division 1 (b) of the majority. The line of cases relied upon in Straughter to support this holding traces its authority back to two 1988 decisions, Food Giant v. Cooke, 186 Ga. App. 253 (366 SE2d 781) (1988) and Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988). Cooke and Ramey held that, because the defendant proprietor failed to produce evidence that it conducted a reasonable inspection of the premises, it failed to carry its initial evidentiary burden as the movant for summary judgment to show that the plaintiff’s claim that the defendant had constructive knowledge of the hazard was not viable, and thus the burden did not shift to the plaintiff to produce evidence of how long the hazard had been on the floor. Ramey, 186 Ga. App. at 258-259; Cooke, 186 Ga. App. at 254-256. Both Cooke and Ramey concluded that the defendant was not entitled to summary judgment because the “[defendant’s] evidence did not negate the possibility that, under the existing circumstances, its failure to have discovered the presence of the [hazard on the floor] was the result of its failure to exercise reasonable care in inspecting its premises. See [Ramey].” Cooke, 186 Ga. App. at 256.

The 1991 Supreme Court decision in Lau’s Corp., which specifically overruled anything to the contrary, held that a defendant moving for summary judgment, which does not have the burden of proof at trial, has no burden to produce evidence in order to disprove the plaintiff’s case or to shift the evidentiary burden back to the plaintiff. Id. at 491. Accordingly, Lau’s Corp. specifically overruled the contrary holdings in Cooke and Ramey upon which Straughter and the majority opinion rely. See Straughter, 232 Ga. App. at 36-40 (Andrews, C. J., dissenting); Hartley v. Macon Bacon Tune, 234 Ga. App. 815, 822-824 (507 SE2d 259) (1998) (Andrews, C. J., dissenting); Blake v. Kroger Co., 224 Ga. App. 140, 147-151 (480 SE2d 199) (1996) (Andrews, J., concurring specially). As I pointed out in my dissent in Straughter, the holding there and the holding by the present majority fly in the face of the Supreme Court’s decision in Lau’s Corp. Moreover, these holdings are directly contrary to numerous other slip and fall decisions of this Court which hold in accord with Lau’s Corp., that a slip and fall defendant moving for summary judgment and asserting lack of constructive knowledge of the hazard is not required to produce evidence of compliance with reasonable inspection procedures before it can rely on the absence of evidence as to how long the hazard had been on the floor. Sharfuddin, 230 Ga. App. at 686; Blake, 224 Ga. App. at 142-150; Johnson v. Autozone, 219 Ga. App. 390, 393 (465 SE2d 463) (1995); Moore v. Kroger Co., 221 Ga. App. 520, 521 (471 SE2d 916) (1996); Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 351 (496 SE2d 471) (1998).

Without evidence as to whether the hazard had been on the floor for as little as a minute or for as long as one hour and forty-two minutes, there is no basis for a reasonable trier of fact to conclude, without engaging in pure speculation or conjecture, that it had been there long enough to have been discovered by a reasonable inspection. Harvey would therefore be entitled to a directed verdict at trial, because it would be impossible for a trier of fact to conclude that a negligent failure by Harvey to conduct a reasonable inspection caused Red-dick’s slip and fall. Alterman Foods, 246 Ga. at 623; Brooks, 231 Ga. App. at 654; Nelson, 216 Ga. App. at 757. Where the evidence before the trial court on summary judgment would not be sufficient to withstand a motion by Harvey for a directed verdict at trial, the clear message of Lau’s Corp. is that Harvey is entitled to rely on the absence of such evidence and is entitled to summary judgment. Id. at 491; see also Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991) (summary judgment appropriate on evidence that would compel a directed verdict); Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148) (1981) (same); NeSmith v. Ellerbee, 203 Ga. App. 65, 68-69 (416 SE2d 364) (1992) (when directed verdict at trial is inevitable, summary judgment is appropriate).

In continuing to dissent to the decisions of this Court on the above issue, I am aware that the principle of stare decisis ordinarily compels a judge of this Court to follow the decisions issued by this Court. Since it is my opinion, however, that the decisions to which I continue to dissent clearly conflict with the Supreme Court’s decision in Lau’s Corp., 261 Ga. at 491,1 do not believe stare decisis compels me to concur. “The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.” Art. VI, Sec. V, Par. III, Ga. Const. of 1983. Accordingly, I continue to dissent on this issue as long as I find clear support for my position in Supreme Court precedent. Moreover, I point out that the majority opinion, and the opinion in Straughter upon which it relies, fails to acknowledge a contrary line of decisions relying on Lau’s Corp. issued by this Court which takes the exact opposite position. As I have urged in previous dissents, this Court should forthrightly address the conflict in these decisions.

For these reasons, I respectfully dissent.

Decided September 27, 1999

Reconsideration dismissed October 21, 1999

Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for appellant.

Law Offices of Rodney M. Keys, Maurice L. King, Jr., for appellee.

       During her deposition, Reddick referred to the fruits she saw as plums, but in a subsequent affidavit, Reddick stated that she has since learned that they are called scuppernongs, which are large grapes. See Webster’s New Intl. Dictionary (2nd ed.), p. 2252.

       Reddick contends that the sweep card is inadmissible hearsay that does not meet the requirements of the business records exception. We disagree. Jones testified that the sweep card for the week ending September 7,1996, was kept in the ordinary course of business and included all entries for the day of Reddick’s fall. Satterfield testified that he personally swept the floor twice that day, as reflected by the entries on the sweep card initialed by him. This evidence satisfies the foundational requirements of OCGA § 24-3-14 (b). See Mealor v. State, 233 Ga. App. 193, 194 (2) (504 SE2d 29) (1998) (explaining requirements); Peachtree North Apts. v. Arkhora Assoc., 140 Ga. App. 20, 21 (2) (230 SE2d 83) (1976) (testimony of corporate officer that time sheets were kept in normal course of business established admissibility).

       For purposes of ruling on Reddick’s motion for summary judgment, we have considered only the original deposition transcript and not the errata sheet. Nevertheless, we address this issue in the event that the parties seek to make use of Reddick’s deposition on remand.

       In Young v. YMCA of Metro. Atlanta, 204 Ga. App. 224 (419 SE2d 97) (1992), a slip- and-fall plaintiff testified at her deposition that she fell on a step because of the presence of soapy water, but later changed her testimony to indicate that she fell because the step was oversized. Although we noted in passing that the plaintiff’s errata sheet “is authorized by OCGA § 9-11-30 (e),” the central issue in Young was not the scope of the change, but whether the plaintiff properly submitted the errata sheet. Id. at 225.

       Because Georgia’s Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of the federal courts interpreting the federal rules are persuasive authority. Ambler v. Archer, 230 Ga. 281, 287 (1) (196 SE2d 858) (1973).

       In any event, Harvey does not seek to apply the Prophecy rule here, but only challenges Reddick’s right to make substantive changes to her deposition.


author: Blackburn, Presiding Judge.

text:
    A99A1609.
    GOULD v. GOULD.
    (523 SE2d 106)
   Blackburn, Presiding Judge.

Sheri Gould appeals by application the trial court’s dismissal, without prejudice, of her petition for modification of a divorce decree and contempt due to her failure to abide by an agreement to mediate. Because we find the divorce decree required Sheri Gould and Keith Gould to submit disputes concerning their minor children to a mediator or family counselor before litigating, we affirm.

The Goulds were divorced in Florida in March 1995. The final judgment of divorce incorporated the Goulds’ marital separation agreement. That separation agreement expressed the Goulds’ intent to share decision-making responsibility with regard to the care and upbringing of their children. Keith Gould was given residential custody of the children, and Sheri Gould was to have “extensive contact” and “open and liberal visitation” with the children. However, the agreement provided no specific schedule of visitation.

In addition, the agreement provided:

In the event of a disagreement between us on matters of policy affecting the health, education, or welfare of our minor children, we agree to confer with a harmonious attitude best calculated to promote our children’s welfare. If, in spite of this conference, we remain in conflict regarding our decisions affecting our minor children, we agree to submit the conflicts to a mediator, counselor or professional person skilled in the area of resolution of family problems. This procedure will be followed to its conclusion prior to either of us seeking relief from the court.

Keith Gould moved with the children to Savannah, Georgia. Moving or a change of geographic location by Keith Gould was contemplated by the separation agreement and was not an issue at the trial court. Subsequently, the Goulds could not agree as to Sheri Gould’s visitation with the children. Without seeking resolution of the dispute by a mediator or family counselor, Sheri Gould filed a modification petition in August 1995, which Keith Gould answered. The trial court domesticated the judgment and entered a temporary visitation order. In 1997, Sheri Gould filed an amended modification petition which sought custody of the children.

While the modification action was still pending, Keith Gould filed a motion for contempt in May 1998 regarding telephone contact with the children during Sheri Gould’s visitation periods. Sheri Gould raised as a defense Keith Gould’s failure to seek mediation of the dispute in accordance with the separation agreement. In June 1998, the trial court dismissed Keith Gould’s contempt motion because of his failure to comply with the mediation provision in the agreement before filing suit. In its order, the trial court found that “this provision precludes either party from commencing an action in court prior to ‘submitting the conflicts to a mediator, counselor, or professional person skilled in the area of resolution of family problems.’ ”

Thereafter, in August 1998, Keith Gould filed a motion to dismiss or for summary judgment, raising for the first time the defense of failure to state a claim based upon Sheri Gould’s failure to submit the custody dispute to a mediator or family counselor. Keith Gould also filed an amended answer which raised the failure to state a claim and the failure to comply with the agreement. The trial court found the mediation provision applied to Sheri Gould’s claim, as it had applied to Keith Gould’s motion for contempt, and dismissed Sheri Gould’s petition for failure to submit the custody dispute to a mediator or family counselor prior to filing suit.

1. Sheri Gould contends the trial court erred by dismissing her petition, arguing that the mediation provision is an affirmative defense which Keith Gould waived by failing to plead it in his first responsive answer. We disagree.

It is undisputed that the mediation provision at issue is a condition precedent to the parties’ right to sue. See Sasser & Co. v. Griffin, 133 Ga. App. 83, 89-91 (3) (e) (210 SE2d 34) (1974). Since Sheri Gould failed to comply with the mediation provision before filing her petition, her petition was subject to a motion to dismiss for failure to state a claim. OCGA § 9-11-12. Although Keith Gould failed to raise this defense in his initial answer, the defense was not waived.

Unlike the defenses identified in OCGA § 9-11-12 (b) (2)-(5), which are waived unless they are raised in an initial motion or responsive pleading, the defense of failure to state a claim does not have to be raised in the initial responsive pleading. OCGA § 9-11-12 (h) (1), (2); Hayes v. Superior Leasing Corp., 136 Ga. App. 98, 99 (220 SE2d 86) (1975) (the defense of failure to state a claim is “unwaiverable, whether or not [it was] raised by motion or by answer”); Carpenters Local Union No. 1977 v. Gen. Ins. Co. of America, 167 Ga. App. 299 (306 SE2d 383) (1983) (the failure to state a claim upon which relief can be granted may be made in an answer, by motion for judgment on the pleadings or at trial on the merits). See Wright & Miller, Fed. Prac. & Proc., Civil 2d § 1392, which is identical to OCGA § 9-11-12 (h) (2) (if the defense of failure to state a claim is not raised in a pleading, it can be the subject of a motion for judgment on the pleadings or a motion to dismiss at trial).

Rather, the defense of failure to state a claim “may be made in any pleading permitted or ordered under subsection (a) of Code Section 9-11-7, or by motion for judgment on the pleadings, or at the trial on the merits.” OCGA § 9-11-12 (h) (2). Under the Civil Practice Act (CPA) the failure to state a claim is a fundamental defense preserved from waiver through trial. OCGA § 9-11-12 (h) (2); Capital Assoc. v. Keoho, 173 Ga. App. 627, 628 (327 SE2d 586) (1985) (“a defense of failure to state a claim will be waived if no assertion of that defense is made before judgment”); Carpenters Local Union No. 1977, supra at 300 (OCGA § 9-11-12 (h) (2) allows the defense to be asserted at a trial on the merits); Adams v. Wright, 162 Ga. App. 550, 551 (1) (293 SE2d 446) (1982) (the defense of failure to state a claim must be asserted before judgment or it is waived).

Keith Gould raised the defense of failure to state a claim in an amendment to his answer and in a motion to dismiss or, in the alternative, motion for summary judgment, asserting Sheri Gould’s failure to comply with the mediation provision. Since the defense was raised prior to judgment, it was not waived.

Sheri Gould argues the dismissal was a too drastic sanction exercised under OCGA § 9-11-37. However, OCGA § 9-11-37, which addresses sanctions for discovery abuse, is inapposite. To the contrary, where the complaint fails to state a claim, dismissal is the only remedy. In Sheri Gould’s motion to dismiss Keith Gould’s motion for contempt, she successfully relied on the same mediation provision.

2. Sheri Gould now contends that the mediation provision under which she sought relief is unenforceable when applied against her. She argues that the court abrogates its duty and obligation to seek the best interests of the minor children by requiring the Goulds to submit the dispute to a mediator or family counselor. To the contrary, mediation or family counseling is an appropriate forum well suited, perhaps better suited than the court system, to resolving disputes concerning the minor children of divorce. Parents are encouraged “to present to the court an agreement respecting any and all issues concerning custody of the minor child.” OCGA § 19-9-5. Merely requiring parents to attempt resolution of a custody dispute before litigating does not equate to the court abandoning its obligations to the children. Even if the parents agree on custody issues, the court must still consider the best interests of the child.

Decided October 6, 1999

Reconsideration denied October 21, 1999

George M. Hubbard III, for appellant.

Duffy, Feemster & Lewis, Dwight T. Feemster, for appellee.

The court shall ratify the agreement and make such agreement a part of the court’s final judgment in the proceedings unless the court makes specific written factual findings as a part of the final judgment that under the circumstances of the parents and the child in such agreement that the agreement would not be in the best interests of the child.

OCGA § 19-9-5; See Wrightson v. Wrightson, 266 Ga. 493 (467 SE2d 578) (1996) (while the court may consider the opinion of a third party, it cannot delegate decisions regarding visitation or custody to the third party). The trial court properly enforced the provisions of the separation agreement.

Judgment affirmed.

Barnes and Ellington, JJ., concur.

       “A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a).


text:
    A99A1789.
    JONES v. THE STATE.
    (523 SE2d 73)
   Blackburn, Presiding Judge.

Following a jury trial, Gerald Eugene Jones appeals his convictions of four counts of child molestation, contending that there was insufficient evidence to support the convictions and that the trial court erred by denying Jones’ motion in arrest of judgment and by improperly charging the jury. For the reasons set forth below, we affirm.

1. We have held that:

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Jones] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

Viewed in the light most favorable to the verdict, Jones’ nephew testified that on five or six occasions while he was spending the night at his grandmother’s home and sleeping in Jones’ room, Jones had reached over, grabbed and rubbed the boy’s penis with his hand. On another occasion, Jones touched his penis to the boy’s buttocks. The boy further testified that once while riding in a truck with Jones, Jones had reached over and placed his hand on the boy’s penis. Another nephew testified that Jones had rubbed the boy’s penis; that Jones had put his penis in the boy’s buttocks; that Jones put his penis in the boy’s mouth; that Jones held the boy’s hand to Jones’ penis and masturbated. The evidence was ample to authorize the conviction. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. .Jones raises as error the trial court’s denial of his motion in arrest of judgment, contending that Count 1 of the seven-count indictment failed to state an essential element of aggravated child molestation. A motion in arrest of judgment is an appropriate remedy,

[w]hen an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law[,] and, upon the trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict.

(Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 559 (2) (507 SE2d 484) (1998).

Jones’ motion in arrest of judgment was properly denied by the trial court as Count 1 charges Jones with a crime under Georgia law. Count 1 of the indictment attempted to charge Jones with aggravated child molestation, alleging that Jones had “unlawfully perform [ed] an immoral and indecent act which did involve an act of sodomy upon ... a child under the age of sixteen (16) years, by touching said child’s buttocks with his penis.” After the conviction, the State conceded that Count 1 failed to allege aggravated child molestation because the allegation that Jones had touched the child’s buttocks failed to allege sodomy which must involve the mouth or anus. Nonetheless, the allegations of Count 1 describe a crime under Georgia law, the offense of child molestation, although calling the offense aggravated child molestation. OCGA § 16-6-4 (a). The State asked the Court to sentence on child molestation instead.

It is not the name, but the description of the crime, which characterizes the offense charged. . . . An alleged variance between the offense as named or the Code section cited and the allegations specified in the indictment goes only to the form of the indictment. State v. Eubanks, 239 Ga. 483, 489 (238 SE2d 38) (1977). Where the accused desires to take exception to the form of an indictment, it is essential that he should do so by a demurrer or motion to quash, made in writing and before entering a pleading to the merits.

(Punctuation omitted.) Phillips v. State, 215 Ga. App. 526 (2) (451 SE2d 517) (1994). Jones’ challenge to the indictment goes to the form of the indictment and, although not subject to a motion in arrest of judgment, was subject to special demurrer. However, Jones did not assert any defect in the indictment until after his conviction. By failing to object in writing before entering a plea on the merits, Jones waived any claim of error to the form of the indictment. Id.

Moreover, any alleged error is harmless. “It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy.” (Punctuation omitted.) Davis v. State, 214 Ga. App. 360 (448 SE2d 26) (1994). Child molestation is, by definition, a lesser included offense of aggravated child molestation, so Jones clearly was on notice of the charges against him. OCGA §§ 16-6-4 (c); 16-1-6 (2). Jones was convicted of child molestation, not aggravated child molestation. Although the jury verdict stated Jones was guilty of aggravated child molestation, the trial court conformed the verdict to the pleadings and the evidence (see OCGA § 17-9-40), and Jones was convicted of and sentenced for the lesser included offense of child molestation.

3. Jones contends that the trial court erroneously charged the jury that

the uncorroborated testimony of a victim is sufficient to sustain a conviction of the charges of child molestation and/or aggravated child molestation, as contained within the bill of indictment, if the jury finds that testimony is sufficient to convince them of the defendant’s guilt beyond a reasonable doubt.

Decided October 4, 1999

Reconsideration denied October 21, 1999

N David Wages, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

We have previously approved this charge, holding that this “charge, which was coupled with instructions regarding the burden of proof, was an appropriate statement of relevant law to give to the jury.” Mency v. State, 228 Ga. App. 640, 649 (3) (492 SE2d 692) (1997). We find no error.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c). “A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a).


text:
    A99A1807.
    PADEN v. MURRAY et al.
    (523 SE2d 75)
   Blackburn, Presiding Judge.

In this action regarding the purchase and sale of a residential home, the buyer, Dr. Scott W. Paden, appeals the trial court’s grant of summary judgment to the sellers, William and Jean Murray, contending that: (1) the sales agreement should have been considered rescinded; (2) the Murrays fraudulently concealed latent defects in the home they sold to him; (3) the Murrays breached the sales agreement by failing to disclose defects in the home; and (4) Mr. Murray negligently constructed the home. For the reasons set forth below, we affirm the grant of summary judgment in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The record shows that Paden signed an agreement dated May 28, 1997, to purchase the Murrays’ home located at 1528 Hilltop Road in Dublin. The Murrays accepted Paden’s offer the following day, and the sale closed on June 27, 1997. Paden looked at the home only two times before he agreed to buy it, and he did not return to the home between the date of the agreement and closing. Paden and his family moved into the home on July 14, 1997.

Paden had the home inspected prior to closing by George Washington of the Washington Home Inspection Company; however, Paden did not discuss the inspection report with Washington until sometime after the closing date. Washington’s inspection report described the home as an example of skilled craftsmanship, and Washington testified that he believed that the home had been adequately constructed. Washington’s report listed only four minor repairs needed by the home, the cost of which was less than $500. Although these repairs had not been completed at the time of the closing, Paden decided to go through with the purchase nevertheless. After moving into the home, Paden discovered a number of allegedly new defects, including a wooden foundation, improperly sloped roof sections, a tainted water supply, electrical problems, termite infestation, and bat infestation. Paden described these problems in a letter to George Durden, his real estate agent, dated August 5, 1997. This document was later forwarded to the Murrays.

1. Paden contends that, after discovering new defects, he properly rescinded the contract to purchase the Murrays’ home, and, therefore, he has a viable action against the Murrays for fraudulently inducing him to enter into the contract by failing to properly disclose these defects. We disagree.

In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for breach; or (2) rescind the contract and sue in tort for fraud. Depending upon which of the two actions is ultimately pursued, the presence of a merger clause in the underlying contract may be determinative as to the successful outcome. If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract, and the merger clause will prevent his recovery. If, on the other hand, he does rescind the contract, the merger clause will not prevent his recovery under a tort theory.

(Citations and punctuation omitted.) Cotton v. Bank South, 231 Ga. App. 812, 813-814 (499 SE2d 129) (1998).

Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he can not avoid or rescind such contract.

(Punctuation omitted.) Owens v. Union City Chrysler-Plymouth, 210 Ga. App. 378, 380 (436 SE2d 94) (1993).-

Over a month after closing, Paden attempted to rescind the sale in a letter dated August 5, 1997. However, after moving into the house, Paden completely remodeled two sections of the roof, changing its pitch. In addition, he repainted a number of the rooms and made other additions and alterations, including installation of a termite monitoring system and replacement of the front door. These actions, in the aggregate, show that Paden intended to treat the home as his own and are indicative of Paden’s affirmation of the contract, not rescission. Accordingly, the evidence supports a finding that Paden affirmed the sales contract, and his concomitant remedy is to sue the Murrays for breach of that contract.

Our Supreme Court’s recent opinion in Akins v. Couch, 271 Ga. 276 (518 SE2d 674) (1999) does not change this result. In Akins, a purchaser was allowed to rescind a sales contract after securing a second security deed on the home in question. The purchaser, however, had the deed structured so that it would be canceled upon payment of the debt. Here, Paden has structurally changed the home in question, permanently altering it. This exercise of dominion over the home goes beyond that in Akins, which is, therefore, distinguishable from the matter at hand.

2. Paden contends that the Murrays fraudulently concealed latent defects in the home prior to its sale. As discussed in the previous division, however, Paden failed to rescind the sales agreement, and his only remedies spring from an action for breach of the contract, not for fraud.

3. Paden contends that the Murrays breached the provisions of the sales agreement by failing to disclose certain defects in the property.

Had Paden chosen to do so, the sales agreement allowed extensive rights to inspect the property. The agreement provided:

Buyer . . . shall have the right to enter the property at Buyer’s expense and at reasonable times ... to thoroughly inspect, examine, test, and survey the Property. . . . Buyer shall have the right to request that Seller repair defects in the Property by providing Seller within 12 days from Binding Agreement Date with a copy of inspection report(s) and a written amendment to this agreement setting forth the defects in the report which Buyer requests to be repaired and/or replaced. ... If Buyer does not timely present the written amendment and inspection report, Buyer shall be deemed to have accepted the Property “as is” in accordance with paragraph B.

Paragraph B, in turn, provided:

All parties agree that the Property is being sold “as is,” with all faults including lead-based paints and lead-based, paint hazards. The Seller shall have no obligation to make repairs to the Property (except as may be required to comply with the Termite Letter paragraph or as otherwise required herein).

Although the sales agreement included a special stipulation that the Murrays would repair a leak in a PVC pipe supplying the washing machine, no written amendment describing defects in the home was presented to the Murrays prior to closing. Therefore, with regard to those defects other than the leaky roof, which was squarely addressed by the disclosure statement, Paden waived his right to seek redress by failing to provide the Murrays with a written amendment as required by the sales agreement.

The Murrays indicated on the “Seller’s Property Disclosure Statement,” which was attached to the sales agreement and made a part thereof, that there had been no problems with the roof of the home, past or present. Howbver, the record shows that, after being in their home for approximately a year, the Murrays did notice some leaks in their kitchen and their master bedroom during heavy rain storms. Mr. Murray subsequently discovered that water was being trapped by the flashing on the home, and he attempted to repair this problem. There was also evidence that an area of water damage to the ceiling of the home had been repaired. Shortly after taking over the home, Paden discovered that the roof continued to leak in the kitchen and the master bedroom. Based on the Murrays’ own testimony, their disclosure with regard to the past and present condition of the roof of the home was inaccurate. Therefore, a jury must determine whether the leaks about which Paden now complains were the same ones of which the Murrays were aware when they lived in the home. As such, Paden’s breach of contract claim in this regard is not subject to summary judgment.

The same does not hold true for Paden’s claim that the Murrays should have disclosed that the pitch of the roof was improper. Even if we assume that the roof was constructed with an improper slope as Paden claims, there is no evidence that the Murrays were aware of this fact, and, the disclosure statement provided that the Murrays had to disclose defects only to the best of their knowledge. As such, Paden’s claim in this regard must fail.

In addition, Paden’s claims regarding the home’s wooden foundation, tainted water supply, electrical problems, termite infestation, and bat infestation must also fail. There is no evidence in the record that the Murrays were aware of termite infestation, and, as such, they could not have disclosed its existence. Moreover, the Murrays had a termite prevention contract on the property which Paden assumed at the time of purchase. With regard to the water supply, reports were provided at closing which showed that the water was not polluted. Finally, with regard to the existence of a wooden foundation, electrical problems, and bat infestation, these defects could have easily been discerned by Paden upon a diligent inspection of the property prior to closing.

4. Paden contends that Mr. Murray should be held liable for constructing the home in a negligent manner. Mr. Murray, however, was not the builder of the home, and Paden’s claim must fail. In general,

a builder expressly or impliedly promises that he has built the house in a fit and workmanlike manner. Thus, the law imposes upon the professional builder . . . the obligation to exercise a reasonable degree of care, skill and ability, which certainly can be shown as that degree of care and skill which, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession.

Williams v. Runion, 173 Ga. App. 54, 57 (325 SE2d 441) (1984).

Although Mr. Murray supervised and contacted subcontractors, he performed no actual work on the home during its construction and was not its builder. The evidence supports the trial court’s finding that Jay Sanders, a building contractor for over ten years, was the builder of the home. The mere fact that Mr. Murray is a civil engineer with some knowledge of home construction does not change this result. Moreover, Mr. Murray was not solely responsible for alterations in the original blueprint for the home. He received assistance from an associate of Larry Branch, general contractor, and from Sanders in this regard. Accordingly, Mr. Murray was not the builder of the home, and Paden’s claim regarding negligent construction lacks merit.

Decided October 4, 1999

Reconsideration denied October 21, 1999

Cornelison & Van Gelderen, Leon Van Gelderen, John A. Ziolo, for appellant.

Hall, Bloch, Garland & Meyer, Benjamin M. Garland, for appellees.

Judgment affirmed in part and reversed in part.

Eldridge and Barnes, JJ, concur.


author: Ellington, Judge.

text:
    A99A1907.
    HEATH v. THE STATE.
    (522 SE2d 761)
   Ellington, Judge.

Donald Everett Heath was convicted by a jury of criminal attempt to possess cocaine in violation of the Georgia Controlled Substances Act, OCGA §§ 16-4-1; 16-13-30 (a). Heath appeals, enumerating two errors: that the trial court erred in failing to charge the jury on his sole defense of entrapment and that the evidence was insufficient to convict. We conclude that the evidence was sufficient to support the jury’s verdict and that Heath failed to present any evidence of entrapment and, therefore, affirm.

1. Heath was arrested during the course of a reverse sting operation in which an undercover officer posed as a drug dealer. He contends that there was insufficient evidence of intent to buy a controlled substance.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the evidence shows that the officer posing as a drug dealer was standing approximately two feet inside the open door of an apartment which was known in the neighborhood as a place to buy drugs. Heath approached the door and knocked. The officer said, “What’s up, man?” Heath, who was holding two $5 bills in his hand, responded, “Let me get it (or ‘hit it’) two times,” which was slang for purchasing two quantities of the drugs being offered. The officer went to the nearby refrigerator, took a bag from the freezer compartment, put several pieces of counterfeit crack cocaine in his hand and told Heath to pick the two he wanted. Heath selected two pieces and gave the money to the officer. The officer gave a prearranged signal to two uniformed officers hiding in a bedroom that the transaction was completed, and Heath was placed under arrest. Under the standard established by Jackson v. Virginia, this evidence was sufficient to convict Heath of attempting to possess cocaine. Day v. State, 235 Ga. App. 771 (1) (510 SE2d 579) (1998).

Heath’s contention that there was no evidence that he believed he was purchasing a controlled substance is belied by his own testimony. Heath testified that the material the officer presented to him “looked like rock cocaine” and that he “chose two of them.” He testified that when he was handing the $10 to the officer, he “was attempting to buy cocaine.” Heath’s argument is without merit.

2. Heath argues the trial court erred in failing to instruct the jury on entrapment, a charge he requested in writing. Heath testified that the officer posing as a drug dealer was not standing inside the apartment but outside in the yard. He testified that the officer gestured to him, indicating that he was offering drugs for sale. So, Heath walked over to him and started a conversation, asking (in slang) whether he was selling drugs. Heath testified that he would not have gone in the officer’s direction if the officer had not made some kind of gesture. Heath admitted, however, that he was in the area for the purpose of buying drugs. “ ‘Entrapment requires proof that (1) the idea of the crime originated with the state agent; (2) the agent’s undue persuasion, incitement or deceit induced the crime; and (3) the defendant was not predisposed to commit the crime.’ ” Hinton v. State, 236 Ga. App. 140, 141 (511 SE2d 547) (1999). See OCGA § 16-3-25. “The trial court must charge the jury on the defendant’s sole defense ... if there is some evidence to support the charge.” Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). “Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citation omitted.) Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998).

Heath’s testimony that the officer initiated the contact and offered to sell him drugs failed to raise the defense of entrapment because there was no evidence that the officer employed undue persuasion, incitement or deceit to induce him to buy drugs nor any evidence that Heath was not predisposed to buy drugs. Wyatt v. State, 194 Ga. App. 159, 160 (2) (390 SE2d 85) (1990); cf. Hattaway v. State, 185 Ga. App. 607, 608-609 (365 SE2d 480) (1988) (evidence of repeated and persistent requests to purchase drugs was sufficient to raise entrapment defense for jury’s consideration). Because the evidence showed that the officer in this case merely provided Heath with the opportunity to commit the crime he specifically set out to commit, the trial court did not err in refusing to charge the jury on entrapment. Oswell a State, 208 Ga. App. 883, 884 (1) (432 SE2d 586) (1993).

Decided September 28, 1999

Reconsideration denied October 21, 1999.

Donald E. Heath, pro se.

Peter J. Skandalakis, District Attorney, Hope F. Smelcer, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Ruffin, J., concur.