text:
    A97A1040.
    GOSULE v. BESTCO, INC.
    (490 SE2d 532)
   Blackburn, Judge.

Plaintiff Joseph B. Gosule appeals the grant of defendant Bestco, Inc.’s motion for summary judgment on Gosule’s suit for $70,000 due on an account. Gosule claims he is owed this sum in exchange for services he provided Bestco as an independent contractor. Specifically, he claims he generated increased sales and obtained new customers for the company.

The standard of review for a trial court’s grant of summary judgment requires that this Court conduct a de novo review of the evidence. Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996). Furthermore, “[t]o 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. OCGA § 9-11-56 (c). ... 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 pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. Gosule enumerates as error the trial court’s grant of summary judgment on his claim against Bestco. The evidence shows that his claim that Bestco owes him $70,000 for these services is based in part upon a letter dated March 24, 1994, written on Bestco stationery. The letter, in its entirety, reads, “Dear Joe; As per our telephone conversation, the amount of $70,000.00 will be transferred into your account not later than the end of the business day of Friday, April 8, 1994. Sincerely, Robert I. Ragsdale, President.”

In support of its motion for summary judgment, Bestco presented the affidavit of Jessie Lin, president of Bestco. According to Lin, Robert Ragsdale was not president of Bestco when he ostensibly signed the $70,000 letter in that capacity, but had been removed as president of Bestco almost one year before the letter was executed. Ragsdale had no signing privileges on the Bestco checking account and also had no authority to bind Bestco in any fee or employment arrangement with Gosule. Finally, Lin swore in her affidavit that Bestco never made any contracts with Gosule, and that the company did not owe him any money.

Gosule has presented no evidence besides the letter to refute Bestco’s assertion that it never entered into a contract of any sort with him. Accordingly, his claims that Ragsdale hired him as an independent contractor on behalf of Bestco and that Bestco owes him money for his services must be based upon Ragsdale’s apparent authority to bind Bestco for Ragsdale’s acts. In support of his position, Gosule claims that he believed Ragsdale had apparent authority to act for Bestco because Ragsdale operated out of Bestco’s premises and signed purchase orders. Additionally, Gosule had a business card listing Ragsdale as president of the company.

“ Apparent authority’ is an agency concept which refers to an agent’s authority as it is apparent to third parties. Apparent authority is that which the principal’s conduct leads a third party reasonably to believe the agent has; it creates an estoppel allowing third parties to bind a principal to the agent’s acts on account of the principal’s conduct, reasonably construed by third parties acting in innocent reliance thereon. Where there, were no manifestations of authority by the principal to a third party, apparent authority is not in issue.” (Citation omitted.) Morris v. Williams, 214 Ga. App. 526, 527 (2) (448 SE2d 267) (1994).

Gosule has pointed to no conduct on behalf of Bestco which reasonably led him to believe that Ragsdale had apparent authority to hire and pay him. The facts show that Bestco did the opposite: in March 1993, it issued a letter removing Ragsdale as president of the company. Around this same time, an employee of Bestco informed Gosule of this fact. Gosule is therefore charged with knowledge that Ragsdale was not president of Bestco when Ragsdale signed the $70,000 letter as “president.” “[A]ny apparent authority that might otherwise exist vanishes in the presence of the person’s actual or constructive knowledge of what the agent is or is not empowered to do.” Atlanta Limousine Airport Svcs. v. Rinker, 160 Ga. App. 494, 496 (287 SE2d 395) (1981).

Gosule is further barred from relying upon the doctrine of apparent authority because he is not an innocent party. “This doctrine of apparent authority is based upon the principle that where one of two innocent parties must suffer from the wrongful act of another, the loss should fall upon the one who, by his conduct, created the circumstances which enabled the third party to perpetrate the wrong and cause the loss.” (Punctuation omitted; emphasis supplied.) Turnipseed v. Jaje, 267 Ga. 320, 323 (477 SE2d 101) (1996).

The record clearly indicates that Gosule did not deal with Ragsdale as an innocent party relying upon the apparent authority of a corporate agent. Gosule’s and Ragsdale’s uncontradicted testimonies state that the two were working together to buy out Bestco. According to Ragsdale, he and Gosule “were trying to put a business together,” and Gosule’s efforts for Bestco were largely made in furtherance of the plan for the new business. Ragsdale deposed that he never agreed on behalf of Bestco to pay Gosule for these efforts, either in commissions or for time expended, and further stated that he never had any discussion with Gosule about paying Gosule on behalf of Bestco. Ragsdale also deposed that the only reimbursement promised to Gosule was based entirely upon the formation and existence of the new corporation.

Furthermore, Gosule deposed that Ragsdale prepared the $70,000 letter at Gosule’s request, because Gosule told Ragsdale he needed to show the letter to people to whom he owed money in order to get those people “off his back.” Gosule admits he lied to Ragsdale in order to get him to issue the letter, and that he really wanted the letter 1) to help him obtain a loan from a bank, and 2) to “cover” his time at Bestco, in case Ragsdale was fired. He also solicited the letter knowing that the only times he had ever been paid, the checks had been drawn on Ragsdale’s personal bank account. Even then, one such check indicated that it was a “loan against commissions” which would be earned when the new business took shape. At the end of the year, to account for these payments, Gosule received a 1099 tax form from Ragsdale himself, not from Bestco. In light of this uncontroverted evidence, Gosule cannot claim that as between himself and Bestco, he was an innocent party.

Gosule therefore cannot maintain his contract claim against Bestco on an apparent agency theory. He has failed to show that Bestco demonstrated to him that Ragsdale had authority to act as he did, that he was justified in believing Ragsdale had apparent authority, and that he dealt with Bestco innocently and in good faith. Under the standard set forth in Lau’s Corp., supra, summary judgment was properly granted to Bestco on this claim.

2. Because the trial court did not state the basis for its grant of summary judgment, we must address Gosule’s claim that under quantum meruit, summary judgment was improper. Gosule did not plead quantum meruit in his complaint, and Bestco maintains that he may not now pursue that cause of action. Bestco also claims that because it was unaware of the supposed services for its benefit, it cannot be liable for accepting the services.

(a) Although Gosule’s two-paragraph complaint contains no claim for quantum meruit and no details outlining such a claim, on the facts of this case, he is not barred from asserting that theory. “Under the Georgia Civil Practice Act, pleadings need only give notice of what the adverse party may expect to meet, rather than to frame issues.” (Punctuation omitted.) Lee v. Gore, 221 Ga. App. 632, 633 (472 SE2d 164) (1996). “While a complaint must give notice sufficient to allow responsive pleading, it need only state a claim and does not have to allege facts sufficient to set forth a cause of action.” Wade v. Polytech Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468) (1991).

While summary judgment on quantum meruit claims which were not pled has been affirmed where “there is no allegation or inference of an allegation in appellants’ complaint. . . from which it fairly could be determined that appellants were asserting any claim in quantum meruit against appellee,” this is not such a case. Merz v. Prof. Health Control of Augusta, 175 Ga. App. 110 (332 SE2d 333) (1985). Here, it is clear that Gosule’s claim arose out of his provision of services to Bestco, and these services are the only claim he could possibly have against Bestco. A claim of quantum meruit is therefore a fair inference from the allegation contained in his complaint, and liberal construction of his pleadings requires that his failure to plead quantum meruit not result in summary judgment against him. Cf. Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287, 292 (5) (241 SE2d 256) (1977).

(b) Bestco argues that Gosule cannot sustain a claim for quantum meruit because Bestco was not aware that he was providing services for its benefit, and therefore it could not have accepted those services so as to incur the obligation to pay for them. In support of this argument, Bestco cites Smith Dev. v. Flood, 198 Ga. App. 817, 819 (3) (b) (403 SE2d 249) (1991) (“[ajppellee could not accept any services from appellant of which she was totally unaware”); Gosule, however, points to evidence that his efforts did generate some limited business for Bestco, and argues that Bestco’s agent, Ragsdale, had knowledge of Gosule’s efforts.

However, as discussed in Division 1, supra, the uncontradicted evidence shows that Ragsdale had no authority to obligate Bestco on any contract with Gosule. His dealings with Gosule were accordingly beyond the scope of his authority, and his knowledge of Gosule’s services therefore cannot be imputed to Bestco as a matter of law. See Southern Dev. Co. v. Shepco Paving, 206 Ga. App. 535, 536 (426 SE2d 234) (1992) (to be imputed to principal, agent’s knowledge must relate to the subject matter of the agency and be acquired while acting as agent and within scope of authority). Because a party may not accept services of which it was totally unaware, see Flood, supra, and because Gosule has failed to point to any evidence that Bestco knew that services were being rendered, summary judgment on this claim was appropriately granted for Bestco.

Decided July 31, 1997.

S. Robert Hahn, Jr., for appellant.

Joseph B. Gosule, pro se.

Evans & Bell, Mark G. Evans, for appellee.

3. Bestco’s request for the imposition of a penalty for frivolous appeal is denied.

Judgment affirmed.

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


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A1245.
    RUBEN’S RICHMOND DEPARTMENT STORE v. WALKER.
    (490 SE2d 536)
   Blackburn, Judge.

Ruben’s Richmond Department Store (the store) appeals the $70,000 judgment rendered against it by the jury in the underlying action brought by Cynthia Walker to recover for personal injuries she received while attempting to board the store’s elevator. On appeal, the store contends that the trial court erred in allowing certain evidence to be presented to the jury and in failing to grant its motion for directed verdict or motion for judgment n.o.v. For the reasons set forth below, we affirm the jury’s award.

1. In its first and second enumerations of error, the store asserts that the trial court erred in denying its motion for directed verdict and motion for judgment n.o.v. “The standard of appellate review of a trial court’s denial of a motion for a directed verdict is the ‘any evidence test.’ Little v. Little, 173 Ga. App. 116 (1) (325 SE2d 624) (1984). The issues of a directed verdict and judgment n.o.v. are reviewed on the same basis. The question before this court is not whether the verdict and the judgment of the trial court were merely authorized, but is whether a contrary judgment was demanded. A judgment n.o.v. is properly granted only when there can be only one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. Stone v. Cook, 190 Ga. App. 11 (1) (378 SE2d 142) (1989).” (Citations and punctuation omitted.) Professional Consulting Svcs. of Ga. v. Ibrahim, 206 Ga. App. 663, 665 (426 SE2d 376) (1992).

The plaintiff, Cynthia Walker, testified that she was injured while boarding the elevator in the store on February 25, 1994. Walker testified that as she was stepping into the elevator with her right foot, the elevator was “making some kind of noise and it shook.” She was shaken off balance, her foot got caught between the floor and the elevator, and she fell to her knee. Her foot was lodged from her toe to her instep. Firemen used a Hurst machine to pry open the space where her foot was caught.

This Court has long recognized that mechanical devices get “out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone.” Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 798 (388 SE2d 920) (1989). Evidence of negligence is, therefore, required in the present action. “The standard of care applicable to common carriers is applicable to [the store] in this case. See Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456 (2) (475 SE2d 188) (1996). That standard provides that a common carrier of passengers is not an insurer of the safety of its passengers, but must exercise extraordinary diligence to protect the lives and persons of its passengers. [OCGA § 46-9-132.] Extraordinary diligence is defined as that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances. [OCGA § 51-1-3..] Southeastern Stages v. Stringer, 263 Ga. 641 (437 SE2d 315) (1993).” (Citations and punctuation omitted.) Sparks v. MARTA, 223 Ga. App. 768 (1) (478 SE2d 923) (1996). Slight negligence is found in the absence of such extraordinary diligence. See Millar Elevator, supra at 458. Therefore, we must review the present record to determine if it contains any evidence of slight negligence by the store owner.

Walker presented the testimony of Harry Jackson, a former inspector for the Georgia Department of Labor (DOL). Jackson testified that he had inspected the subject elevator in 1988 and 1989 as part of his job with the DOL. At the May 24, 1988, inspection, Jackson noted that a required five-year test had not yet been done on the elevator, and he gave the store until November 1988 to have the test completed. When Jackson re-inspected the elevator on February 28, 1989, the five-year test had still not been done. The store had also failed to add a required communication device and had not fixed the pit light, problems that had been noted in 1988. He further noted' that the elevator was not leveling properly and that there was water in the pit. Jackson extended the time for compliance until March 1989. On June 28, 1989, Jackson returned for a compliance inspection, but he was unable to inspect the elevator because it was being painted. On July 12, 1989, Jackson again attempted to conduct a compliance inspection of the elevator but was unable to do so. The owner told him that he could not inspect the elevator because no one was available to go with him, but that most of the items had been corrected. Following this visit, Jackson sent a report to his supervisor regarding the lack of cooperation he had received from the owner regarding compliance with his recommendations for violation corrections. Jackson left his job with the DOL and was not further involved with the store.

The DOL inspection report dated February 1, 1990, indicated that a five-year test had been conducted and a communication device and pit light were installed. The DOL inspects elevators twice a year. Between the February 1, 1990, inspection and the January 25, 1994, inspection, the DOL inspectors did not note any adverse conditions present. The owner testified that the store did not have a service contract for maintenance and repair on the elevator, but that the store’s mechanic serviced the elevator and “took care of whatever needed to be done.” The owner did not have any records of having repaired the 1989 leveling problem, but testified that it had been fixed. The owner admitted that she did not report the subject incident to the DOL because she was unaware that she was required by law to do so. After this incident, the elevator was repaired by U. S. Elevator employee Walton Bennicky. Bennicky repaired the door bracket and straightened the sill allegedly damaged by the Hurst Machine used to pry loose Walker’s foot. The elevator worked normally after his repairs.

“A directed verdict is proper only if ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict.” (Punctuation omitted.) Norfolk Southern R. Co. v. Perkins, 224 Ga. App. 552, 555 (481 SE2d 545) (1997). Our review of the evidence in the light most favorable to Walker indicates that a verdict was not demanded in the store’s favor, and that the jury was authorized to find that the store failed in its duty of extraordinary care to service and repair the elevator and that Walker’s injury resulted from the defective condition of the subject elevator which the store failed to properly maintain.

2. The store asserts that the trial court erred in allowing the jury to consider evidence that an inspection made by the DOL on February 28, 1989, revealed a leveling problem. The store contends that this evidence was irrelevant as the incident at issue did not occur until February 25, 1994, almost five years later.

“Questions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere.” (Punctuation omitted.) Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 266 (4) (387 SE2d 593) (1989). As the issues in the present case involved a store owner’s duty of extraordinary care in the maintenance and service of its elevator, we cannot say that the trial court abused its discretion in allowing into evidence the 1989 inspection reports. Such evidence would be relevant to demonstrate the defendant’s service and maintenance practices for the jury’s consideration.

Decided July 31, 1997.

Glover & Blount, Percy J. Blount, for appellant.

Eubanks & Bond, Michael C. Eubanks, Katherine F Bond, for appellee.

3. The store contends that the trial court erred in allowing evidence of its failure to submit a post-accident report to the DOL.

Although the trial court overruled the store’s motion in limine and indicated that it would allow the jury to consider evidence of the store’s failure to submit a post-accident report, Walker did not introduce any such evidence. In fact, it was the owner who testified as to her failure to file the report in response to her own attorney’s question.

We find no reversible error as “one may not complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” (Punctuation omitted.) Spearman v. Ga. Bldg. Auth., 224 Ga. App. 801, 805 (482 SE2d 463) (1997). Additionally, such evidence was otherwise admissible. See OCGA § 8-2-106; Lane v. Montgomery Elevator Co., 225 Ga. App. 523 (484 SE2d 249) (1997) (failure to comply with OCGA § 8-2-106 (c) contitutes a form of spoliation of evidence).

Judgment affirmed.

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


text:
    A97A1307.
    KOVACS v. THE STATE.
    (490 SE2d 539)
   Blackburn, Judge.

Charles Frank Kovacs appeals his convictions of driving under the influence of alcohol and driving with a suspended license, contending that there was insufficient evidence to support the convictions. He also contends that the court imposed an excessive sentence on the DUI charge.

1. Kovacs asserts there was insufficient evidence showing that he was under the influence of alcohol to the extent that he was a less safe driver. See OCGA § 40-6-391 (a) (1).

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant 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.) McGhee v. State, 223 Ga. App. 123, 124 (476 SE2d 853) (1996).

Deputy Sheriff Brian Burdett testified that he was driving in his patrol car when he pulled up behind a black Grand Am automobile stopped at a red traffic light. When the light turned green, the automobile did not move. After the light turned yellow, the automobile proceeded to turn right. Burdett followed the automobile and observed it cross the centerline three times within the space of approximately half a mile. Burdett described the manner of driving as “erratic.”

After Burdett stopped the automobile, Kovacs got out and started approaching Burdett’s patrol car. Burdett testified that Kovacs was not steady on his feet, and that he asked Kovacs to return to his car. Burdett noticed a strong odor of an alcoholic beverage on Kovacs’ breath and in his car. He also testified that Kovacs’ speech was slurred. Burdett asked Kovacs to submit to a voluntary field sobriety test. He asked Kovacs to stand on one leg. He testified that Kovacs lost his balance and started to fall into the traffic lane, and that he had to grab hold of Kovacs. Kovacs testified at trial that he could not balance himself on his leg because he had had knee surgery.

Burdett placed Kovacs under arrest for driving under the influence, and read him his implied consent rights. Kovacs agreed to submit to a blood test. However, when Burdett pulled into the hospital parking lot for the test, Kovacs stated that he would not take the blood test. Kovacs testified that he did not know they were going to draw blood until he pulled into the parking lot. He testified that he was afraid of needles and requested that Burdett administer a different type of test. Burdett did not perform a different test as Kovacs refused to take the blood test.

Burdett testified that he had made close to 100 DUI arrests, and that in his opinion Kovacs was a less safe driver. Sergeant Terry Thurman testified that he arrived on the scene shortly before Burdett arrested Kovacs. He testified that he smelled alcoholic beverages on Kovacs, that Kovacs’ speech was slurred, and that Kovacs was unstable on his feet. He further testified that he had made more than 50 DUI arrests and that, in his opinion, Kovacs was drunk.

At trial, Kovacs testified that he had had only one beer that evening, several hours earlier. However, he admitted that he initially lied to Burdett and told him he had not had anything to drink.

“Driving an automobile while under the influence of alcohol may be shown - by circumstantial evidence.” (Punctuation omitted.) Schoicket v. State, 211 Ga. App. 636, 637 (2) (440 SE2d 65) (1994). Although the evidence is in some respects conflicting, “it is solely within the purview of the jury to weigh conflicting evidence and judge the credibility of the witnesses.” Cannon v. State, 223 Ga. App. 248 (477 SE2d 381) (1996). Viewed in the light most favorable to the verdict, “[t]he evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of being a less safe driver because of being under the influence of alcohol.” Rawl v. State, 192 Ga. App. 57 (1) (383 SE2d 903) (1989); see also Schoicket, supra.

2. Kovacs also contends that the evidence was insufficient to support his conviction for driving with a suspended license. In particular, he contends there was no evidence he was served with notice of his license suspension.

“One of the elements of driving while one’s license is suspended is notice to the defendant of action in suspending the license, and absent proof by the State of actual or legal notice to the defendant a conviction for that offense cannot be sustained.” Sumner v. State, 184 Ga. App. 374, 375 (361 SE2d 536) (1987). However, Kovacs himself testified at trial that he told Burdett that his license had been suspended. Kovacs admitted at trial that he knew he had a suspended license but broke the law and drove. Indeed, during closing argument, Kovacs’ attorney admitted Kovacs “was driving on a suspended license, and you may find him guilty of that.” “[AJppellant acknowledged that his license had been suspended, so it follows that he had received either actual or legal notice of such suspension. . . . Hence the evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” Barrett v. State, 173 Ga. App. 452 (326 SE2d 816) (1985).

3. On the DUI charge, the trial court sentenced Kovacs to ten days in jail followed by twelve months probation. Kovacs contends that this sentence violates OCGA § 17-10-3 (a), which provides that misdemeanors shall be punishable by a period of confinement not to exceed 12 months. The State does not contest this enumeration.

“The total period of probation and confinement (if any) may not exceed the maximum time provided as punishment for the crime.” (Punctuation and emphasis omitted.) Tenney v. State, 194 Ga. App. 820, 821 (392 SE2d 294) (1990); see also OCGA § 42-8-34 (c). Accordingly, the court erred in imposing a total period of probation and confinement in excess of 12 months on the DUI conviction, and this case must be remanded for resentencing on such charge.

Judgment affirmed in part, reversed in part, and remanded.

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

Decided July 31, 1997.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

G. Channing Ruskell, Solicitor, for appellee.


text:
    A97A1476.
    FLOYD v. THE STATE.
    (490 SE2d 542)
   Blackburn, Judge.

Donald Tyrus Floyd appeals the jury’s verdict convicting him of driving under the influence and improper lane usage. He claims that the trial court erred in denying his motion for mistrial based upon certain references the prosecutor made in opening statements. He also contends that the court’s sentence is contrary to the applicable sentencing statute.

1. Floyd moved for a mistrial in response to certain references made by the prosecutor during the State’s opening statement, and contends that the trial court erred in denying his motion. The standard of review applied by this Court is whether or not the trial court abused its discretion in denying defendant’s motion. “[T]he decision of whether to grant a mistrial is within the sound discretion of the trial court and its ruling will not be disturbed absent an abuse of discretion.” (Punctuation omitted.) Stubbs v. State, 220 Ga. App. 106, 109 (3) (469 SE2d 229) (1996).

According to Floyd, the prosecutor improperly implied to the jury that the test result of Floyd’s alco-sensor was somehow indicative of his level of intoxication. Defendant has failed however to meet his burden of establishing his factual contentions in the record. As this Court has held under similar facts, “[although the record contains appellant’s objection, the motion for mistrial, the colloquy between counsel and the court, and the court’s ruling, there was no transcript of the purportedly offensive portion of the opening statement itself. Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for the appellate court to review.” (Citations and punctuation omitted.) Milford v. State, 178 Ga. App. 792, 793 (2) (344 SE2d 505) (1986).

“Furthermore, the refusal to grant a mistrial based on alleged improper remarks of the prosecutor is within the discretion of the trial court, OCGA § 17-8-75, and we will not interfere with the decision on appeal unless there is manifest abuse. Our review of what does appear of record clearly shows that the trial court did not abuse its discretion in denying the motion for mistrial.” (Citations and punctuation omitted.) Id. at 793-794 (2).

2. Floyd argues that the sentence imposed upon him by the trial court for driving under the influence violates the applicable sentencing statute. He contends the trial court erred in sentencing him to serve 12 months in the state penal system instead of in a county facility.

The record indicates that Floyd was sentenced pursuant to OCGA § 40-6-391 (c) (3), as this was his third conviction within five years for driving under the influence. Pursuant to OCGA § 40-6-391 (c), Floyd’s conviction is classified as a high and aggravated misdemeanor. OCGA § 17-10-4 sets out the punishments for high and aggravated misdemeanors, and subsection (a) of that Code section provides that “[a] person who is convicted of a misdemeanor of a high and aggravated nature shall be punished by a fine not to exceed $5,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a term not to exceed 12 months, or both.” Floyd maintains that this statute does not authorize incarceration in the state penal system, and for that reason, his sentence cannot be sustained. We agree.

The State argues that the inclusion of the words “other jail” in OCGA § 17-10-4 authorizes Floyd’s incarceration in a state penal system institution. However, such a construction is not well-founded in light of the other language contained in the statute. The repeated use of the word “county” to illustrate all the places where a county might confine inmates in its custody evidences the legislature’s intention for defendants convicted of high and aggravated misdemeanors to remain in the custody of the county, not the state penal system.

This construction of OCGA § 17-10-4 is also consistent with a companion statute on the sentencing of misdemeanants generally, OCGA § 17-10-3. The legislature therein specifically provided that misdemeanors could be punished either by “confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates,” see subsection (a) (1), or by “confinement under the jurisdiction of the Board of Corrections in a state or county correctional institution.” See subsection (a) (2). By comparing these two statutes, it is clear that had the legislature intended high and aggravated misdemeanors to be punishable by incarceration in a state penal institution, it could have so provided in OCGA § 17-10-4, in the same manner it did in OCGA § 17-10-3 (a) (2).

This opinion is also squarely on point with a recent unpublished opinion of this Court. While we have not squarely addressed this issue in a published opinion, we have generally acknowledged the result reached herein. See Smith v. State, 174 Ga. App. 238 (329 SE2d 507) (1985).

Decided July 31, 1997.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

G. Channing Ruskell, Solicitor, Thomas J. Melanson, Assistant Solicitor, for appellee.

Without citing any authority for its position under OCGA § 17-10-3 (a) (2), the State argues that Floyd’s sentence on the improper lane usage charge could properly be served in a state penal institution and that his sentence for the high and aggravated misdemeanor would simply be concurrent thereto. The State’s argument fails, however, as OCGA § 17-10-3 (a) (1), (2) prohibits a defendant who is both fined and incarcerated, as in this case, from being confined in a state institution. Williams v. State, 221 Ga. App. 291 (470 SE2d 922) (1996). Also, under OCGA § 17-10-4, a sentence of incarceration for a misdemeanor of a high and aggravated nature can only be served in a county facility. Therefore, Floyd’s incarceration in a state facility on the subject charges is not authorized.

Accordingly, while we affirm the conviction, we must vacate that portion of Floyd’s sentence which requires that he be incarcerated in the state penal system. The case is therefore remanded to the trial court for the entry of a sentence consistent with this opinion.

Judgment affirmed, sentence vacated, and remanded with direction.

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


author: Pope, Presiding Judge.

text:
    A97A1688.
    PAINTER et al. v. THE STATE.
    (490 SE2d 544)
   Pope, Presiding Judge.

Pursuant to this Court’s grant of their interlocutory application, Russell Painter and Theresa “Tracy” Pruitt appeal the superior court’s denial of their motion to suppress. Concluding that Officer Ashcraft lacked a particularized and objective basis for stopping Painter’s truck, we reverse.

Evidence at the suppression hearing was that on February 6, 1996, Officer Greg Ashcraft of the Douglas County Sheriff’s Department was conducting an undercover surveillance in a public parking lot in front of a restaurant/bar. Ashcraft testified that he had previously witnessed drug usage and drug transactions numerous times at that parking lot. At about 8:45 p.m., he saw a Toyota Camry park in a parking space in front of him. The woman who was driving the Camry, later identified as Tracy Pruitt, sat in the car for about 15 minutes and then got out, looked in the back seat and got back into the front seat. She then went inside the restaurant and returned to her car after about three minutes. Ashcraft surmised that she had gone inside to make a phone call. Soon after Pruitt returned to her car, a truck pulled in front of the Camry. Pruitt loaded some luggage and clothes on hangers from the Camry into the truck, got into the passenger’s side of the truck and rode away with a male driver, later identified as Russell Painter. Ashcraft testified that these events were consistent with the behavior of narcotic dealers and that it appeared to him that there was going to be “some type of drug transaction.”

Before the truck left the parking lot, Ashcraft ran the tag on the Camry and learned that Pruitt owned the car. Although Ashcraft did not know Pruitt, he learned from Sergeant Oliver that the police had received some information regarding Pruitt dealing in narcotics and to “keep that in mind.” Sergeant Oliver testified that he did not tell Ashcraft to stop Pruitt, but said that if Ashcraft had a reason to stop Pruitt, he might want to “check them very thoroughly.” Sergeant Oliver testified that he had received information from several different people that Pruitt “uses and sells narcotics.” Oliver stated that he had been to Pruitt’s residence three times to investigate reports of her drug activity.

Based on the above facts, Ashcraft decided to follow the truck. After following the truck for a short time, and without observing any traffic violations, Ashcraft decided to have the truck stopped. Accordingly, he called Officer Loudermilk to help pull the truck over.

Officer Loudermilk pulled the truck over and Ashcraft asked Pruitt to step out. Pruitt complied and, upon request, she gave Ash-craft her identification and responded that she did not have any narcotics or weapons. Ashcraft asked for consent to search her and she refused. Ashcraft then asked Pruitt to return to the truck, and he went back to his vehicle and called a K-9 unit to the scene. Although Ashcraft did not specifically recall, he stated that an officer probably had retained Painter’s license and insurance card also. The K-9 unit arrived in about 15 minutes. Ashcraft conceded that Pruitt and Painter were not free to leave and that he intended to detain them for a reasonable period until the dogs came.

The dog from the K-9 unit alerted on the truck. Painter approached the officers and asked them not to let the dog tear up his truck. At this point Ashcraft asked for consent to search the truck and Painter stated that “he didn’t care.” During the subsequent search of the vehicle a small quantity of marijuana, more than 70 grams of methamphetamine, and a stolen handgun were recovered. Painter and Pruitt were charged with violations of the Georgia Controlled Substances Act.

On appeal of a motion to suppress, “the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) State v. Williams, 220 Ga. App. 100, 102 (2) (469 SE2d 261) (1996).

Painter and Pruitt argue that the stop, detention and search of the vehicle were conducted without any legal basis. With respect to the initial stop of the vehicle, Pruitt and Painter argue that the officers had no particularized and objective basis for suspecting them of criminal activity.

“Although an officer may conduct a brief investigative stop of a vehicle (see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979)), such a stop must be justified by ‘specific and articulable facts’ which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). “The issue critical to a determination of the validity of the stop is whether the [officer] had a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Citations and punctuation omitted.) Postell v. State, 264 Ga. 249, 250 (443 SE2d 628) (1994). “Investigative stops of vehicles are analogous to Thrry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal conduct. . What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994).

In the instant case, Ashcraft had no particularized and objective basis for suspecting Painter and Pruitt of criminal activity and Ash-craft observed no objectively suspicious behavior. See generally State v. Golden, 210 Ga. App. 800 (437 SE2d 492) (1993). Ashcraft had no information regarding Painter and no specific reason to suspect that Painter’s transport of Pruitt from the. restaurant was connected to the drug trade. The vague information that Ashcraft received from Sergeant Oliver that Pruitt was dealing in narcotics did not provide articulable suspicion for the investigatory stop. First, there was no evidence that the information was received from a reliable source. Moreover, the information was overly general, was completely lacking in detail, and provided no basis for predicting Pruitt or Painter’s future behavior. See Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990); Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992); Swanson v. State, 201 Ga. App. 896 (412 SE2d 630) (1991); Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990).

Decided July 31, 1997.

Winn, Price & Winn, Dan N. Winn, Barry R. Price, for appellants.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

Accordingly, we conclude that the trial court’s denial of the motion to suppress was clearly erroneous and we reverse.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

       Sergeant Oliver testified that Pruitt’s Camry was involved in another drug transaction on December 8, 1995.


author: Judge Harold R. Banke.

text:
    A97A1184.
    MAY v. COUNTY COMMISSIONERS OF GLASCOCK COUNTY et al.
    (490 SE2d 546)
   Judge Harold R. Banke.

After the Glascock County Commissioners (“Commissioners”) entered into a contract for the construction of a fire station, Leanna May sued them for, inter alia, violating the Open Meetings Act. Although it temporarily enjoined construction until the Commissioners complied with the Open Meetings Act, the trial court ultimately denied the relief May sought. In her appeal, May enumerates three errors.

This case arose after the Commission convened a meeting without publicly posting the date, time, or place in a conspicuous location available to the public. At this meeting, the Commission decided to construct a steel frame fire station directly in front of May’s house and awarded the contract to L. A. Brett & Sons, Inc. (“Brett”). After a hearing, the trial court halted all work under the contract until the Commission complied with the Open Meetings Act. See OCGA § 50-14-1 (b). The Commission then advertised in the local paper for construction bids on the firehouse weekly for four weeks and posted the proposed building’s specifications in the Commission office. After the County received three sealed bids, the Commission published notice of a special meeting to award the bid for the fire station.

The Commission’s specifications included a 14-day completion requirement. Two of the three bids affirmatively indicated that the fourteen-day requirement could not be met and estimated the date of completion at over sixty days. The third bid placed no limitations on the completion date. The Commission voted to award the job to the third and highest bidder, Brett. It also amended the budget to transfer capital from the contingency fund to a special account for the construction of the fire station.

May subsequently sought to enjoin construction on the ground that the Commission interfered with competition on the bid on the firehouse by awarding it to Brett, the highest bidder. In addition, May amended her complaint, alleging that the expenditure for the firehouse was illegal. May also filed a motion for contempt, claiming the Commission violated the trial court’s order to comply with the Open Meetings Act.

The trial court denied May’s requests for relief, concluding that she failed to present sufficient evidence to justify an injunction or to show that the Commission interfered with competition for public works bidding. It also found the Commission had complied with the Open Meetings Act. Held:

1. The record on appeal, which is incomplete, provides no support for May’s contention that the Commission continued to violate the Open Meetings Act after the trial court ordered compliance with it. Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990) (party asserting error has burden to show it affirmatively by the record). May claims that the Commission failed to give proper notice of letting the contract or to arrange for public deliberation of the specifications.

Absent an affirmative showing of error on the record, we must assume the trial court’s judgment was correct. Mullins v. Columbia County, 202 Ga. App. 148, 150 (413 SE2d 489) (1991). Here, the trial court specifically found that the Commission had complied with the Open Meetings Act and substantially complied with the Public Works Act. In addition, it denied May’s motion for contempt (for violating the order requiring compliance with the Open Meetings Act) and found that she failed to produce evidence sufficient to justify an injunction. Because nothing in the record before us counters those findings, we must affirm.

2. This same reasoning applies to May’s contention that the trial court erred by refusing to enjoin the Commission from allocating funds for the fire station. May argued that amending the budget was illegal absent proof of a change in factual circumstances not foreseeable when the fiscal year budget was passed.

However, local governments are authorized to amend their budgets “so as to adapt to changing governmental needs during the fiscal year.” OCGA § 36-81-3 (d). May provided no authority prohibiting the amendment as a matter of law. Nor did she offer proof that changing governmental needs did not justify the budget amendment. Thus, in the absence of a transcript or other record support, we must affirm the trial court’s refusal to enjoin all expenditures for the firehouse for lack of sufficient evidence. Id.

Decided August 1, 1997.

Law Office of John J. Pilcher, Daniel S. Levy, for appellant.

Fowler & Wills, Samuel A. Fowler, Jr., for appellees.

3. In her final enumeration, May contends that the Commission interfered with competition for public works’ bids by specifying the brand name of the metal building it wanted to house the fire station. The trial court specifically found that May failed to prove that claim. Absent some evidence to the contrary, that finding must be affirmed. Id. Moreover, we question whether this issue was properly raised in the trial court. S & S Food Svcs. v. Dept. of Transp., 222 Ga. App. 579, 580 (1) (475 SE2d 197) (1996) (arguments raised for the first time on appeal will not be considered).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       No transcript was provided on appeal.


text:
    A97A0953.
    ROSSVILLE BANK et al. v. BANKERS FIRST SAVINGS BANK, F.S.B.
    (490 SE2d 548)
   Blackburn, Judge.

Rossville Bank, First American National of Chattanooga, and NationsBank (collectively plaintiffs) sued Bankers First Savings Bank f/k/a Southeast Federal Savings Bank (Southeast), alleging that Southeast improperly set off a corporate savings account to satisfy the personal debt of the corporation’s former president. Following a bench trial, the court entered judgment for Southeast. Plaintiffs filed this appeal, contending that the court erroneously concluded that the debt was corporate debt, that the account was properly pledged as collateral for the debt, and that the corporation ratified the actions of its former president. Because the evidence at trial showed that Southeast did not in fact set off the account, we affirm.

Between 1973 and 1980, John W. Brock, Jr., the president and majority shareholder of Brock Insurance Agency, executed 13 separate promissory notes in favor of Southeast. Some of the notes were clearly signed by Brock on behalf of Brock Insurance Agency, while others did not clearly indicate a representative capacity. In each of the notes, Brock purported to pledge a corporate savings account as collateral.

After Brock died, the officers of Brock Insurance Agency learned of the pledge of the savings account for the loans. After concluding that the debt was corporate debt, the corporation paid off the loans using the proceeds of the savings account.

On December 3,1984, plaintiffs, who had made separate loans to Brock individually, sued Brock’s estate, Brock Insurance Agency, various members of Brock’s family, Southeast, and others, alleging that such loans had been fraudulently obtained by Brock and that the proceeds of the loans had been used for the benefit of the defendants. Plaintiffs subsequently settled with all defendants except Southeast and obtained an assignment from such defendants of their claims against Southeast. In their capacity as assignees of Brock Insurance Agency, plaintiffs then amended their complaint, alleging that Southeast committed a breach of contract and conversion by setting off Brock Insurance Agency’s corporate account to satisfy a personal debt of Brock. The trial court granted summary judgment to Southeast, and plaintiffs appealed. In Rossville Bank v. Southeast Fed. Sav. Bank, 192 Ga. App. 384, 385 (385 SE2d 9) (1989), we reversed, finding that there was a genuine issue of fact as to whether the notes were executed in an individual or corporate capacity.

At trial, plaintiffs did not pursue the claims asserted in their original complaint, but merely the breach of contract and conversion claims asserted in the amended complaint as assignees of Brock Insurance Agency. Following a bench trial, the trial court entered judgment for Southeast, and it is from this judgment that plaintiffs appeal.

1. Plaintiffs contend the trial court erred in finding that the notes were corporate obligations, that the account was properly pledged as collateral, and that the corporation ratified Brock’s acts in obtaining the loans and pledging the corporate account. It is not necessary to consider these contentions, however, as the evidence demonstrated that Southeast did not in fact set off the account.

The essence of the plaintiffs’ claim is that (1) Brock’s pledge of the corporate account to secure his alleged personal obligations was unauthorized, (2) the pledge was therefore invalid, and (3) Southeast therefore committed a breach of contract and conversion by setting off the account against Brock’s personal indebtedness. However, the evidence at trial revealed that Southeast did not in fact set off the account. Rather, Brock Insurance Agency voluntarily withdrew $223,837.19 in cash from its savings account and used such funds to pay off the loans. The trial court found that this payment was a voluntary and conscious act on the part of the corporation’s president, with the knowledge of its shareholders. This fact is fatal to plaintiffs’ claims, which are based on alleged improper conduct by Southeast in setting off the account. If the officers of Brock Insurance Agency acted improperly in using corporate assets to pay off a purportedly personal debt, plaintiffs have not demonstrated how this states a cause of action against Southeast. Moreover, it should be remembered that the plaintiffs are suing as the assignees of Brock Insurance Agency, the entity which voluntarily recognized the corporate debt and paid off the loan. Plaintiffs thus stand in the corporation’s shoes for purposes of prosecuting any claim. Brock Insurance Agency could not state a claim against Southeast for its own voluntary acts, and plaintiffs are likewise prevented from doing so. Plaintiffs have no wrongful set-off claim against Southeast for no set-off in fact occurred, and the entity in whose shoes it stands, voluntarily withdrew funds from the account to pay off a debt. Accordingly, the trial court did not err in finding for Southeast.

Decided August 4, 1997

Gearhiser, Peters, Lockaby & Tallant, Robert L. Lockaby, Jr., Patrick, Beard & Richardson, Gary R. Patrick, for appellants.

Davis & Kreitzer, John W. Davis, Jr., for appellee.

2. As a result of the above holding, it is not necessary to consider plaintiffs’ contentions that the court erred in making various factual findings.

Judgment affirmed.

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


text:
    A97A1046.
    BIBLE et al. v. JACK ECKERD CORPORATION.
    (490 SE2d 553)
   Judge Harold R. Banke.

Harry B. Bible, Jr. and Janice B. Bible brought a personal injury action against the Jack Eckerd Corporation (“Eckerd”) for a rainy day slip and fall. The Bibles appeal the summary judgment awarded to Eckerd.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, determines that the evidence does not create a triable issue as to each essential element of the case. McGonagil v. Treadwell, 216 Ga. App. 850, 853 (1) (456 SE2d 260) (1995). Viewed in that light, the evidence was as follows. At the time Harry Bible walked from his vehicle to shop at Eckerd’s, the earlier heavy rain had dissipated and become a mere drizzle. As Bible stepped off a floor mat just inside the store, he slipped on some water. As Bible lost his footing, he collided with a rug shampooer positioned at the entrance. The impact broke his glasses, knocked his billfold out of his back pocket and his keys out of his side pocket.

Eckerd’s store manager admitted that prior to Bible’s fall, he was aware that water seeped under the doors during rain storms. The manager testified that customarily in severe weather, “we would lock the door and put a sign to come through the mall entrance.” The store manager admitted that on rainy days, Eckerd took no specific precautions and had no policy for inspections.

Bible testified that as he lay on the floor awaiting the ambulance, an Eckerd pharmacist told him that he himself had recently slipped and “skidded across the floor” as a result of the door sweep problem. According to Bible, the pharmacist stated that the situation “ought to be corrected.”

An undated business record showed that a recommendation had been made to install a six-inch gutter at that entrance. About one year before Bible’s fall, another customer had fallen in the same area under similar circumstances. Bible testified that while he was lying on the floor he noticed that the floor tiling appeared uneven, allowing water to puddle. A customer accident report completed by an Eckerd employee in response to Bible’s fall noted “puddles on the floor.”

Bible testified that although he was watching where he was walking, he did not observe any water on the floor before he slipped. Bible claimed that he was distracted as he walked through the entrance because the checkout had been relocated since his last visit. Bible also stated that his eyes had difficulty adjusting to the change in lighting. Eckerd countered that Bible’s distraction was self-induced.

Eckerd asserted that it was entitled to summary judgment because Bible could not prove that it had superior knowledge, in that Bible could not prove how long the water had been present on the floor before he fell. Although Eckerd further claimed that Bible essentially admitted that he probably could have seen the water if he had been looking down, the record does not support that contention. Eckerd argued that the purported admission foreclosed recovery as a matter of law. Eckerd contended that had Bible exercised ordinary care, he would have anticipated the presence of water due to the rainy day conditions and accordingly would have noticed and avoided the hazard. Asserting that 16 material issues of fact remain unresolved, the Bibles appeal summary judgment. Held,-.

By statute, a proprietor has a duty to exercise ordinary care in keeping his premises and approaches in a reasonably safe condition. OCGA § 51-3-1. In order to recover, Bible would have to show that Eckerd had actual or constructive knowledge of the hazard and that he was without knowledge of the hazard or was prevented by Eckerd from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

It is common knowledge that store entranceways often become wet and slippery during inclement weather due to shoppers constantly tracking in water. Proprietors are not required to remove the water as fast as it collects. See, e.g., Palermo v. Winn-Dixie Atlanta, 221 Ga. App. 532, 533 (1) (472 SE2d 85) (1996); Chafin v. Winn-Dixie Atlanta, 201 Ga. App. 209, 210 (411 SE2d 64) (1991); Adams v. Winn-Dixie Stores, 192 Ga. App. 892, 893 (386 SE2d 686) (1989). While a proprietor, like Eckerd, is under a duty to exercise ordinary care in keeping its premises and approaches reasonably safe, it has no duty to warn customers of the obvious and cannot be expected to prevent some presence of water on the floor during a rain storm. Palermo, 221 Ga. App. at 533-534 (1); OCGA § 51-3-1. Although Eckerd was not required to keep a large force of moppers stationed at its entrance, it was required to exercise reasonable care under the prevailing weather conditions. Chafin, 201 Ga. App. at 210.

Eckerd failed to offer any evidence that it took reasonable steps to keep the rainwater mopped despite its awareness that more water was likely accumulating on its floor than would normally be expected to be tracked in by shoppers. Compare Roby v. Kroger Co., 219 Ga. App. 459, 460 (465 SE2d 496) (1995). Eckerd offered absolutely no evidence that after the heavy rain, it inspected the floor area at issue to ensure that it was reasonably safe for its customers. OCGA § 51-3-1. Bible’s evidence indicates that despite knowing about the accumulation of water on rainy days, Eckerd failed to place any wet floor signs, failed to mop, failed to inspect, and allegedly failed to use suitable floor mats. Nor did the evidence show that Eckerd locked the doors to avert possible danger.

Bible can satisfy prong one of Alterman Foods, supra, because the evidence shows that Eckerd knew that during heavy rains water seeped under this particular entrance. As it is undisputed that there had been a heavy rain earlier in the day, Eckerd knew or should have known that water was present on its floor. McDonald’s Restaurants &c. v. Banks, 219 Ga. App. 667, 668 (466 SE2d 240) (1995); see Weight Watchers &c. v. Welborn, 165 Ga. App. 290, 291 (299 SE2d 760) (1983). As to prong two, Bible’s uncontroverted testimony is that he did not see the water on the floor before he fell. Alterman Foods, 246 Ga. at 623.

A jury must determine whether Bible exercised reasonable care for his own safety and whether Eckerd breached its statutory duty of keeping its premises reasonably safe. OCGA § 51-3-1. Questions of negligence, diligence, contributory negligence, and exercise of ordinary care and proximate cause are solely for jury resolution except in plain and indisputable cases. Pique v. Lee, 218 Ga. App. 357, 358 (461 SE2d 302) (1995); Kroger Co. v. Green, 190 Ga. App. 318 (1) (378 SE2d 905) (1989). This is not such a case.

Decided August 4, 1997.

Peter A. Law, Bruce Berger, for appellants.

Swift, Currie, McGhee & Hiers, John W. Campbell, Monique R. Walker, for appellee.

Judgment reversed.

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

       The store has two sets of doors. The set where Bible fell leads directly from the parking lot. The other set is accessible only through the mall.

       Door sweeps are metal and rubber sections that seal the bottom portion of doors from the elements.


text:
    A97A1149.
    PLUMIDES v. AMERICAN ENGINES & TRANSMISSIONS, INC.
    (490 SE2d 552)
   Blackburn, Judge.

Michael G. Plumides, Jr., appeals from the trial court’s dismissal of his notice of appeal. Plumides sued American Engines & Transmissions, Inc. and prevailed at trial. After trial, however, the court granted American Engines’ motion for directed verdict. Plumides filed a notice of appeal from this ruling, but did not timely pay costs, file a trial transcript, or seek an extension of time to do so. Several months later, the trial court determined after a hearing that the appeal should be dismissed for Plumides’ failure to file a transcript. We affirm the dismissal.

Pursuant to OCGA § 5-6-48 (c), “the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” “The cause for delay in the processing of the appeal is a fact issue for determination in the trial court, and in making that determination, the trial court exercises a broad legal discretion which is subject to appellate scrutiny only for abuse.” (Citation and punctuation omitted.) Miller v. Ingles Market, 214 Ga. App. 817, 818 (449 SE2d 166) (1994).

In this case, no transcript of the hearing on the dismissal of the notice of appeal is included in the record. “The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Citation and punctuation omitted.) Burger v. Krueger, 224 Ga. App. 179 (480 SE2d 230) (1996).

Decided August 4, 1997.

George M. Plumides, for appellant.

Michael T. Camp, for appellee.

Additionally, based upon the facts set forth in the trial court’s order, it is clear that dismissal of the notice of appeal for failure to timely file the trial transcript was not an abuse of discretion. The record indicates that although Plumides filed his notice of appeal on June 10, 1996, he still had not ordered completion of the trial transcript at the time of the dismissal hearing on December 4, 1996. Pursuant to OCGA § 5-6-42, Plumides’ deadline for filing the trial transcript was 30 days after the filing of his notice of appeal — July 10, 1996, absent the grant of an extension of such time. At the time of the hearing, therefore, he had missed the deadline by over 130 days. Although the court’s order reflects that Plumides claimed he could not afford the transcript, it also states that Plumides admitted that he did not qualify as a pauper who could have filed a pauper’s affidavit. See OCGA § 5-6-47.

“[A]s the delay was caused by appellants’ failure to order the transcript for more than [160] days after filing the notice of appeal, the record fully supports the finding that the delay was inexcusable.” Burton v. Hamilton, 204 Ga. App. 18, 19 (418 SE2d 398) (1992). The trial court also found that the delay in filing the transcript was unreasonable and caused by Plumides, and we cannot say, particularly in the absence of a transcript from the hearing on this matter, that the court abused its discretion in so finding. The trial court’s dismissal of Plumides’ notice of appeal is therefore affirmed.

Because Plumides “has intentionally failed to include the [hearing] transcript or statutorily authorized substitute in the record on appeal, ... he could therefore have no reasonable basis for anticipating that this Court would reverse the judgment of the trial court.” Hosseini v. Donino, 222 Ga. App. 697 (2) (475 SE2d 665) (1996). American Engines’ motion for sanctions for frivolous appeal is therefore granted, and pursuant to Court of Appeals Rule 15 (b), a penalty of $250 is imposed against Plumides. The trial court is directed to enter judgment against Plumides in this amount upon return of the remittitur.

Judgment affirmed.

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


text:
    A97A1233.
    ANDEMESKEL v. WAFFLE HOUSE, INC.
    (490 SE2d 550)
   Blackburn, Judge.

Haddas Andemeskel appeals the trial court’s order dismissing her lawsuit against Waffle House, Inc. arising out of the death of her husband. For the reasons set forth below, we reverse.

On July 29, 1994, Andemeskel filed suit against Waffle House and Louise Gilbert Burhyte. The complaint alleges that Burhyte, while backing out of a Waffle House parking space, backed into the wall of the restaurant, causing a portion of the building to collapse and fatally injure Andemeskel’s husband. The complaint asserted a wrongful death claim, a survivorship claim, and a claim for punitive damages.

On May 22,1995, Waffle House filed a motion to dismiss the lawsuit for failure to state a claim under OCGA § 9-11-12 (b) (6), on the ground that the complaint failed to allege negligence on the part of Waffle House. After a hearing, the trial court on December 9, 1996, entered an order granting the motion to dismiss.

1. Waffle House contends that this direct appeal should be dismissed because claims remain pending in the trial court against the other defendant, Burhyte. However, the trial court’s order is styled “Final Order,” and purports to dismiss Andemeskel’s entire complaint, not merely the claims against Waffle House. Therefore, the order on its face constitutes a final order, and direct appeal is proper under OCGA § 5-6-34 (a) (1).

2. The trial court erred in granting Waffle House’s motion to dismiss, as the complaint adequately placed Waffle House on notice of the claim against it. “Under the [Civil Practice Act], a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” (Citation and punctuation omitted.) Dillingham v. Doctors Clinic, P.A., 236 Ga. 302 (223 SE2d 625) (1976). “When examining a complaint to' determine whether the facts asserted therein state a claim for relief under which the plaintiff may recover, it is not necessary to find that the complaint is perfect in form or that it sets out all of the issues with particularity. It is only necessary that the complaint place the defendant on notice of the claim against him.” Henderson v. KM Systems, 188 Ga. App. 893, 900 (4) (374 SE2d 550) (1988), overruled in part on other grounds, Cohen v. William Goldberg & Co., 262 Ga. 606, 611 (2) (a), (b) (423 SE2d 231) (1992).

In this case, the complaint clearly placed Waffle House on notice of the facts on which Andemeskel’s claim was based. The fact that the complaint does not specifically allege negligence on the part of Waffle House does not require dismissal, as our Supreme Court has held that “the absence of a general allegation of negligence will not subject the petition to dismissal.” (Citation and punctuation omitted.) Dillingham, supra. See also Beaver v. Southern Greyhound Lines, 120 Ga. App. 576 (1) (171 SE2d 658) (1969). As recognized in Henderson, supra, “[i]f upon reading the complaint the defendant is uncertain as to the nature of the claim of which he has been placed on notice, the proper remedy for seeking more particularity is by motion for a more definite statement at the pleading stage or by the rules of discovery thereafter.” (Citation and punctuation omitted.) Id. at 900 (4).

Decided August 4, 1997.

Alvin L. Kendall, Teresa A. Mann, for appellant.

McLain & Merritt, Joe O’Connor, for appellee.

At trial and in its appellate brief, Waffle House argued that, although this case has been pending for some time and discovery has been pursued, Andemeskel has not produced any evidence of negligence on the part of Waffle House. Waffle House further argues that, with respect to her survivorship claim, Andemeskel has not shown that she is the authorized representative of her late husband’s estate. However, such factual issues are properly raised in a motion for summary judgment and not in a motion to dismiss for failure to state a claim. Although OCGA § 9-11-12 (b) allows a trial court to convert a motion to dismiss into a motion for summary judgment when matters outside the pleadings are considered, it must provide 30 days notice of its intent to do so, to enable the opposing party to present evidence in opposition to the motion. See Bonner v. Fox, 204 Ga. App. 666, 667 (420 SE2d 312) (1992); Williams v. Columbus, Ga., 151 Ga. App. 311 (259 SE2d 705) (1979).

In this case, there is no indication the trial court treated the motion as one for summary judgment. Indeed, its order specifically stated that Andemeskel’s complaint was dismissed for failure to state a claim pursuant to OCGA § 9-11-12 (b). Based on the pleadings, it cannot be said that it appears beyond doubt that Andemeskel could not prove any set of facts entitling her to recover. Accordingly, the trial court erred in granting Waffle House’s motion to dismiss.

Judgment reversed.

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


author: Ruffin, Judge. Beasley, Judge,

text:
    A95A1274.
    A95A1275.
    HIBBS et al. v. CITY OF RIVERDALE. BROWN v. CITY OF RIVERDALE.
    (490 SE2d 436)
   Ruffin, Judge.

These suits for recovery of damages caused by a flooding drainage retention pond were originally considered by this Court in Hibbs v. City of Riverdale, 219 Ga. App. 457 (465 SE2d 486) (1995). In that opinion, we affirmed the trial court’s grant of summary judgment to the City of Riverdale (“the City”) on James and Vicki Hibbs’ and Cynthia Brown’s separate suits for nuisance and negligence. Briefly, plaintiffs Brown and Hibbs claimed that the City was responsible in nuisance for floods which resulted from a drainage pond improperly designed or built by Hooker Homes (“Hooker”), the company which developed the subdivision where Brown and the Hibbses lived. Our earlier decision contains a more complete recitation of the facts surrounding these cases.

In Hibbs, we did not find it necessary to address whether the City had assumed responsibility for the drainage pond which caused the flooding at issue. Id. at 458. The Supreme Court granted certiorari on the nuisance issue and, in Hibbs v. City of Riverdale, 267 Ga. 337 (478 SE2d 121) (1996), reversed our decision. That Court held that “where a municipality negligently . . . undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable. [Cits.]” (Emphasis in original.) Id. at 338. The Court then remanded these cases and directed this Court to determine if any material issue of fact exists as to one issue: whether the City’s “actions in regard to the storm drainage system constituted such exercise of control or acceptance so as to establish a duty on the part of the City to adequately maintain it.” Id. at 339.

In making the necessary determination, we follow the dictates of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) and review the record de novo to determine if the evidence, and all inferences from the evidence, show any question of material fact. If no question of fact exists, and the evidence at hand is insufficient to support an essential element of the plaintiffs’ case, then summary judgment for the defendant is appropriate. Id.

As the Supreme Court noted, the City assumed no responsibility for any nuisance created by the subdivision’s storm drainage systems merely because it approved the construction project. Hibbs, 267 Ga. at 338; see also Fulton County v. Wheaton, 252 Ga. 49, 50 (1) (310 SE2d 910) (1984). The plaintiffs, however, point to other facts which, they claim, show the City “impliedly accepted” responsibility for maintaining the stormwater drainage system at issue.

The plaintiffs argue that in January 1988, Hooker recorded, and the City approved, a plat of the subdivision which showed the retention pond as an easement and dedicated “to the use of the public forever all streets, drains, easements and public places thereon shown. . . We agree that this plat shows Hooker made an offer to dedicate the retention pond to the City. See Smith v. Gwinnett County, 248 Ga. 882, 885 (2) (b) (286 SE2d 739) (1982). However, a city does not assume responsibility for a property dedicated to public use unless it has accepted that dedication, and such acceptance may be direct or implied. Id. “While working or maintaining the property by the legally constituted authority is the usual method of manifesting acceptance by the governmental entity, it is the government’s exercise of dominion and control of the subject of the express offer of dedication which indicates acceptance of the dedication. [Cits.]” Teague v. City of Canton, 267 Ga. 679, 681 (3) (482 SE2d 237) (1997). Any act by the governing authorities showing acceptance will suffice to complete the dedication. Bryant v. Kern & Co., 196 Ga. App. 165, 167 (1) (395 SE2d 620) (1990).

The question of whether a municipality has accepted a dedication to public use is usually for the factfinder to decide. See Johnson & Harber Constr. Co. v. Bing, 220 Ga. App. 179, 182 (2) (469 SE2d 697) (1996). In this case, however, missing from the record are any facts to support an inference that the City exercised “dominion and control” over the property or otherwise “accepted” the dedication to public use. Although the City certainly required Hooker to build its drainage systéms according to code and enforced those requirements' with regular inspections, that exercise of regulatory power does not make the City responsible for maintaining the development. See Lewis v. DeKalb County, 251 Ga. 100, 101 (1) (303 SE2d 112) (1983), in which the Supreme Court held that the county did not assume responsibility for maintaining a culvert by requiring a contractor to use a certain type of pipe.

Plaintiffs have pointed to instances in which City officials required Hooker to correct problems with the subdivision’s drainage systems, but they have noted only one act by the City which they argue should be construed as an act of “control.” After the Hibbs and Brown properties experienced flooding in 1991, Mr. Hibbs complained to the City’s director of public works, who met with Mr. Hibbs and commissioned engineers to perform a study of the retention pond. The director of public works told Mr. Hibbs that he would make the problem “his number one priority,” leading Hibbs to believe the City was responsible for the problem. However, the record is clear that the public works director was required to leave any decisions regarding the property to the City manager and council. The City did not take any of the corrective measures this study recommended. We do not believe the mere fact that the City investigated the problem shows it exercised any “dominion or control” over the property, especially in light of the City’s need to ensure that Hooker had complied with its regulations. Neither is the City estopped by the acts and statements of its public works director, as he had no authority to bind the City. See OCGA § 45-6-5; City of Atlanta v. Black, 265 Ga. 425 (457 SE2d 551) (1995).

The fact that the City required Hooker to post a “maintenance bond” and corresponding letter of credit, likewise, does not show the City accepted responsibility for the subdivision’s retention pond. City regulations required a one-year maintenance bond sufficient to cover one-third of the construction cost of all subdivision streets and drainage systems. This case differs from the facts of Bryant, supra, in which we found a maintenance bond requirement evidenced an intent on the part of local government to accept the street at issue. Here, the same city regulations also stated that the City would not be responsible for “any drainage outside of the right-of-way or for any drainage leading from drop inlets, catch basins, or surface drainage.” Moreover, in Bryant the government itself acted to maintain the road at issue. Here, no evidence shows the City performed any maintenance on the retention pond or its related drainage systems. In this case, the requirement that a developer post a maintenance bond for the benefit of subdivision residents and the public does not create an inference that the City exercised control of the stormwater drainage systems.

The trial court properly granted summary judgment to the City because no evidence shows the City “maintained” or “controlled” the nuisance drainage system.

Judgments affirmed.

Pope, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur, but we should point out to the extent they cite with approval or depend on a principle which the Supreme Court concluded is not the law.

We originally ruled that the City of Riverdale could not be liable because mere negligence is insufficient to support a cause of action for nuisance, citing City of Lawrenceville v. Macko, 211 Ga. App. 312, 316-317 (439 SE2d 95) (1993). Hibbs v. City of Riverdale, 219 Ga. App. 457, 458 (1) (465 SE2d 486) (1995). The Supreme Court held that to be incorrect; if the city acquires a duty to maintain property, then a failure to do so (i.e., negligence) constitutes nuisance if it is continuing or repetitious and the city can be held liable. It cannot be held liable for a single act of negligence under the theory of nuisance, however, because in order to constitute nuisance it must be a continuing or repetitious act which is being complained of. Hibbs v. City of Riverdale, 267 Ga. 337 (478 SE2d 121) (1996).

City of Lawrenceville quotes the erroneous principle also. Although the court initially applies it only in a “moreover” context, 211 Ga. App. at 316, quoting the problematic principle from Denson v. City of Atlanta, 202 Ga. App. 325, 327 (414 SE2d 312) (1991), the Court finally holds: “Even assuming arguendo that the City was responsible for maintaining the drainage system, viewing the evidence in the light most favorable to the verdict, the evidence showed at most that the City was negligent, and, negligence is insufficient to support a cause of action for nuisance. Denson, supra.” Id. at 317 (3). So City of Lawrenceville reached the right result, because “there [was] no evidence that the City exercised any control over this drainage system.” Id. It was right for this reason but wrong in the reason the Court gave.

Denson, a whole court case, seems to be the source of the error. It misstates a principle which it says is found in City of Atlanta v. Roberts, 133 Ga. App. 585 (211 SE2d 615) (1974). Denson states, “If the act, omission, or defect alleged to constitute a nuisance is merely negligence, no matter how egregious the result, the municipality will not be liable for damage suffered.” Id. at 327. A correct statement would have been, “If the act, omission, or defect alleged to constitute a nuisance is merely a single isolated act of negligence, no matter how egregious the result, the municipality will not be liable for damage suffered.” See the dissent, which analyzes the case in accordance with City of Bowman v. Gunnells, 243 Ga. 809 (256 SE2d 782) (1979), the same case the Supreme Court uses in Hibbs, and concludes there was evidence of nuisance so as to support the verdicts because all three guidelines were met.

Denson’s statement misstates what City of Atlanta v. Roberts stands for. It upheld the grant of partial summary judgment to defendant on plaintiff’s nuisance claim because only “a single isolated act of negligence” was shown, “‘and this is not sufficient to show such a negligent trespass constituted a nuisance.’ ” City of Atlanta v. Roberts, supra at 587 (2). We also held that the trial court did not err in denying summary judgment to defendant city “as to the negligence phase of the case in obstructing the street.” Id. at 587 (1). That was a separate count.

Decided July 15, 1997

Reconsideration denied August 5, 1997

James A. Eidson, for appellants.

Foster & Foster, Larry A. Foster, Freeman, Mathis & Gary, Theodore Freeman, Donald J. Grate, Nena K. Puckett, for appellee.

The record should be set straight, else the error be compounded.

       Note that with respect to the first Gunnells guideline, which is that “[t]he defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence,” the dissent understands “degree” to relate to quality of the defendant’s act and cites evidence that the degree of dangerousness was acute. The Supreme Court in Hibbs, supra at 338 (1), however, says that the first guideline means quantity: “the defect or degree of misfeasance must exceed negligence (as distinguished from a single act).” Thus it would appear that the breach of duty involved need not be egregious.


author: Birdsong, Presiding Judge.

text:
    A97A0965.
    WILLIAMS v. BINION.
    (490 SE2d 217)
   Birdsong, Presiding Judge.

After the grant of a discretionary appeal under OCGA § 5-6-35 (a) (10), Jerie Williams challenges the trial court’s grant of attorney fees to Marie W. Binion, who prevailed in her underlying action against Williams on her claims for dissolution of a partnership and payment of partnership assets. After the jury returned a general verdict for $17,108 in her favor, Binion moved for an award of attorney fees and expenses of litigation.

Binion’s motion described various demands, offers, counteroffers, and rejections that occurred while the parties were trying to settle the case and then asserted that Binion should be awarded attorney fees and expenses of litigation because Williams was “unreasonably litigious and put [Binion] through unnecessary time and expense of litigation.” Williams’ response to the motion pointed out the motion asserted a claim under OCGA § 13-6-11 even though Binion’s complaint did not allege an OCGA § 13-6-11 claim, and that, in any event, awards under this Code section must be made by the jury; but the trial court, without stating the basis, awarded Binion $5,000 for attorney fees and $650.85 for expenses of litigation.

On appeal Williams contends the award of attorney fees was not authorized. Held:

1. Under the American Rule generally applicable in our legal system parties are responsible for their own attorney fees and expenses of litigation (Vogtle v. Coleman, 259 Ga. 115 (376 SE2d 861)), but legislation has provided some exceptions to this rule. In this state, the major exceptions to the American Rule arise in cases when a party has asserted unwarranted claims,' engaged in improper defensive tactics, acted in bad faith, been stubbornly litigious, or has caused unnecessary trouble and expense. In these circumstances, the General Assembly has enacted legislation that allows the awards of attorney fees and expenses of litigation to the aggrieved party under OCGA §§ 51-7-81 and 9-15-14. Additionally, in OCGA § 13-6-11 the legislature has established the criteria in which a plaintiff may recover the expenses of litigation as an additional element of damages. Brown v. Baker, 197 Ga. App. 466, 467 (398 SE2d 797) (physical precedent).

Nevertheless, these Code sections cannot be used interchangeably. In addition to having different grounds for an award, the procedures for seeking such awards differ. Awards under OCGA § 9-15-14 are made on motion and are decided by the trial court. Awards under OCGA § 13-6-11, however, must be specifically pled and prayed for in the complaint, are authorized only for plaintiffs, and are decided by the trier of fact upon proof presented at trial. Claims under OCGA § 51-7-81 must be brought in a separate action after termination of the action in which the abusive litigation was claimed, but only if proper notice is given under OCGA § 51-7-84 and the offending party has not abandoned the offending claim or tactic. OCGA § 51-7-82.

2. An award under O.CGA § 51-7-81 is not authorized in this case, however, and Binion has not asserted such a claim. Further, although a § 9-15-14 claim may be made by motion and awarded by the trial court, such an award is not warranted in this case. Under OCGA § 9-15-14, attorney fees and expenses of litigation must be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of fact or law that it could not be reasonably believed that the claim, defense, or other position would be accepted by a court (OCGA § 9-15-14 (a)), or where the court finds that a party or an attorney brought or defended an action that was substantially frivolous, substantially groundless, or substantially vexatious, that was raised to delay or harass, or expanded the proceedings by improper conduct. OCGA § 9-15-14 (b). As Binion neither asserted facts giving rise to a claim under OCGA § 9-15-14 in her motion nor supported her motion with evidence establishing such a claim, no award under OCGA § 9-15-14 was authorized. Additionally, the trial court’s order did not contain language showing that it had on its own motion converted Binion’s motion to one under OCGA § 9-15-14. Therefore, this award cannot be sustained as one under OCGA § 9-15-14, and we do not deem it proper to remand this case for further findings under Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31).

3. This award also cannot stand as an award under OCGA § 13-6-11. Awards under this Code section must be prayed for in the complaint and must be awarded by the factfinder. Id.; Manderson & Assoc. v. Gore, 193 Ga. App. 723, 735 (9) (389 SE2d 251). As the award was not sought in the complaint and was not awarded by the jury, we need not consider whether the award would otherwise have been proper under OCGA § 13-6-11.

Decided August 5, 1997.

Johnny B. Mostiler, for appellant.

Diane M. Zimmerman, Charles R Taylor, for appellee.

Therefore, as no award of attorney fees and expenses of litigation was authorized, the judgment of the trial court awarding attorney fees and expenses of litigation must be reversed.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A1133.
    CHAMPION MANAGEMENT ASSOCIATION, INC. v. McGAHEE et al.
    (490 SE2d 215)
   Judge Harold R. Banke.

Champion Management Association, Inc. (“Champion”) d/b/a Phylax House, a private adult personal care home, sued the Jefferson County Board of Health and its employee, Sydney McGahee, for alleged violations of the Department of Human Resources’ rules and regulations relating to personal care homes, deprivation of due process under the Georgia Constitution, and tortious interference with contractual relations. Champion’s claims allegedly arose after a county health inspector observed and reported certain deficiencies. Shortly thereafter, McGahee purportedly contacted all the guardians of the residents of Phylax House who then removed the residents. Champion alleged that as a result of the appellees’ actions it was forced to close down and cease its operation of the facility.

After Champion provided vague, indefinite, or incomplete responses to the defendants’ discovery requests, the Board moved to compel discovery. An affidavit from the Board’s attorney attested that the requested documents had not been produced despite repeated efforts to obtain them from Champion’s counsel. Champion offered no response to that motion.

About two months later, the trial court granted the Board’s motion to compel and ordered that Champion produce all requested documents within ten days after the entry of its order. The order cautioned that “[i]f the Plaintiff fails to comply with this Court’s Order, Plaintiff’s Complaint will be dismissed.”

It is undisputed that Champion failed to comply within ten days of the court’s order, entered on July 18. Champion did not seek an extension or file a written response to explain why it was unable to comply. Instead, Champion served untimely and incomplete amended responses to the Board’s request for production. The Board then moved for sanctions. Determining that Champion had wilfully failed to comply with its order, the trial court dismissed Champion’s complaint with prejudice. Enumerating three errors, Champion appeals the dismissal of its complaint. Held:

1. Champion contends that the trial court erred in not allowing it to respond to the . Board’s motion for sanctions before entering its order. The harsh sanction of dismissal of all claims is inappropriate except in extreme cases, and a trial court must find wilfulness as a predicate to imposing sanctions. Schrembs v. Atlanta Classic Cars, 261 Ga. 182 (402 SE2d 723) (1991); Swindell v. Swindell, 233 Ga. 854, 856 (2) (213 SE2d 697) (1975). “However, the trial court need not conduct a hearing on the issue of wilfulness in every case. Such a requirement serves no purpose where the trial court[, as here,] can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.” Schrembs, 261 Ga. at 182-183.

2. The trial court properly found that Champion wilfully failed to comply with its order compelling discovery. Notwithstanding Champion’s claim to the contrary, a showing of actual wilfulness is not required. Barron v. Spanier, 198 Ga. App. 801, 802 (403 SE2d 88) (1991). “The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from accidental or involuntary non-compliance.” Id. at 802. In this case, the trial court could determine the existence of wilfulness based not only on the time period prescribed in its order compelling the response but also in the context of the entire period for discovery and Champion’s behavior during that time frame. Schrembs, 261 Ga. at 183. See Johnson v. Lomas Mtg. USA, 201 Ga. App. 562, 564 (3) (411 SE2d 731) (1991). When the nonmovant offers no showing that the failure to respond was accidental or involuntary, dismissal is appropriate. Id.

Champion’s tardy effort to supplement the record by attaching to its brief an affidavit dated February 11, 1997, of Bill S. Hatley, Champion’s president and sole stockholder, is unavailing. Because this affidavit is not a part of the record below, it cannot now be considered. Paul v. Joseph, 212 Ga. App. 122, 125 (2) (441 SE2d 762) (1994).

3. We reject Champion’s assertion that the trial court erred in dismissing its complaint. A trial court has broad authority to impose severe sanctions on any party who fails to comply with a court order. OCGA § 9-11-37 (b). A trial court is specifically granted the discretion to “[dismiss] the action or proceeding or any part thereof,” of a disobeying party. OCGA § 9-11-37 (b) (2) (C).

It is undisputed that Champion failed to comply with the court’s order requiring that it produce all requested documents no later than July 28, 1996. When the Board moved for sanctions, more than ten months had elapsed from the time the discovery requests were served, yet Champion offered no explanation for its noncompliance. As noted above, the record reveals that Champion failed to file any response to the Board’s motion to compel, or to request oral argument on either motion, or to file a motion to set aside the dismissal pursuant to OCGA § 9-11-60. Under these circumstances, we find the trial court did not abuse its discretion in dismissing Champion’s complaint after Champion disobeyed its order to produce. Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987).

Decided August 5, 1997

Wallace & Tetreault, Victor J. Tetreault, for appellant.

Barnhart, O’Quinn & Williams, Michael A. O’Quinn, Anne H. Whipple, Saveli & Williams, Carrie L. Christie, Gregg M. Porter, for appellees.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


author: Judge Harold R. Banke. Pope, Presiding Judge,

text:
    A97A1211.
    HODGES et al. v. GRANGE MUTUAL INSURANCE COMPANY et al.
    (490 SE2d 213)
   Judge Harold R. Banke.

Grange Mutual Insurance Company (“Grange”) commenced this declaratory judgment action to contest its coverage of a van involved in a traffic accident in which LaSonya Hill perished. Hill’s daughters, Leteshia Hodges and Keisha Hill, subsequently initiated a separate wrongful death action through their next friend and guardian, Annie S. Hill (the “Hills” collectively) against Cagle’s, Inc. (“Cagle’s”), Cagle’s Farms, Inc., and Charles D. Davis d/b/a Davis Poultry Company, which sought coverage from Grange. The Hills appeal the trial court’s decision to direct a verdict for Cagle’s on the finding that Davis owned the van at issue.

Davis purchased the van from Cagle’s shortly after arranging to provide all of Cagle’s chicken catching services. Davis maintained that this transaction occurred in early May 1993, before the accident. He testified that shortly after he bought the van, he telephoned Grange’s agent, who assured him it was covered, as did the claims adjuster who took his statement shortly after the accident.

Prior to the verdict, the trial court determined that at the time of the accident, Davis owned the van. The jury then found that Grange was required to provide liability coverage to Davis and his employees for any third-party liability claims arising from the accident. Held:

The Hills lack standing to appeal the trial court’s finding that Davis owned the van. St. John’s Melkite Catholic Church v. Commr. of Revenue, 240 Ga. 733, 734 (242 SE2d 108) (1978) (appellate court may raise standing issue sua sponte). In this action, they are not “aggrieved” by the trial court’s decision because it does not adversely affect them as co-defendants here. Morgan v. Miller, 191 Ga. App. 803, 804 (383 SE2d 183) (1989); see Stonica v. State Farm Fire &c. Co., 198 Ga. App. 717 (402 SE2d 553) (1991). The trial court never addressed the issues of Cagle’s liability or insurance coverage. A party not aggrieved by the trial court’s judgment lacks a legal right to except thereto, because he has no just cause of complaint. Morgan, 191 Ga. App. at 804. Thus, where it affirmatively appears that a decision would be of no benefit to the complaining party, dismissal of the appeal is appropriate. See Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117 (446 SE2d 794) (1994). The fact that an appellant might possibly derive a future benefit from a favorable adjudication on an abstract issue does not require this Court to retain and decide the case. See id. Accordingly, the appeal is dismissed. See Wallace v. Scott, 164 Ga. App. 129, 130 (1) (296 SE2d 423) (1982).

Appeal dismissed.

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

Pope, Presiding Judge,

concurring specially.

Although I agree with the majority’s conclusion, I write separately because the majority opinion simply states that the Hills were not adversely affected, without focusing on the crucial question: Will the Hills be bound by this ruling in the underlying litigation?

Charles Davis d/b/a Davis Poultry Company contracted with Cagle’s to supply crews of chicken catchers for Cagle’s chicken farm. Davis provided transportation for his employees in vans, several of which he obtained from Cagle’s in early May 1993. The Hills’ decedent was killed while riding in one of these vans, and the Hills sued both Davis and Cagle’s. Although we do not have the record in that underlying case, the Hills’ theory in their wrongful death suit can be inferred from the pleadings and arguments of counsel in this case: the Hills assert that both Davis and Cagle’s should be liable, because Davis was acting as Cagle’s agent. And in support of this agency theory, the Hills have consistently taken the position that Davis had not actually bought the vans from Cagle’s at the time of the accident. Indeed, the trial court’s ruling on the ownership issue came in the form of a ruling denying the Hills’ motion for directed verdict and granting Grange’s cross-motion for directed verdict on the same issue.

Thus, to say the Hills are not aggrieved or adversely affected by the ruling on ownership because of their status as co-defendants in a declaratory judgment action is unhelpful. Morgan v. Miller, 191 Ga. App. 803 (383 SE2d 183) (1989) and Stonica v. State Farm &c. Co., 198 Ga. App. 717 (402 SE2d 553) (1991) focused not on the appealing party’s status, but at the reality of their situations. In Morgan, the declaratory judgment plaintiffs were defendants in an underlying wrongful death suit, and they brought the declaratory judgment action to determine whether the wrongful death action belonged to the decedent’s child or parents. The trial court ruled the child had the right to bring the action, and we held the wrongful death defendants were not “aggrieved” and could not appeal the decision because their liability for the alleged wrongful death was not affected by who the action belonged to. 191 Ga. App. at 804.

A case more similar to this one was Stonica, a declaratory judgment action brought by an insurance company against its insured and the plaintiff in an underlying tort action against the insured. The insured failed to answer, and the court entered a default judgment against him. The plaintiff in the underlying action sought to appeal, but we held he could not appeal the entry of a default judgment against his co-defendant in a declaratory judgment action because he was not bound by it, and thus was not adversely affected by it. 198 Ga. App. at 717.

Similarly, the Hills are not adversely affected because they are not bound by the ruling they seek to challenge. The Hills are not precluded from relitigating the question of who owned the van, since the court’s determination that Davis owned it was not essential to the ultimate judgment in their favor. See Kent v. Kent, 265 Ga. 211, n. 2 (452 SE2d 764) (1995); Restatement, 2d, Judgments, § 27. And this will generally be the case when a ruling before or during the trial goes against a party but the ultimate judgment is in that party’s favor. See Restatement, 2d, Judgments, §§ 27 (h) & 28 (a) (“[T]he availability of review for the correction of errors has become critical to the application of preclusion doctrine. If review is unavailable because the party who lost on the issue obtained a judgment in his favor, the general rule of [issue preclusion] is inapplicable by its own terms.”).

Accordingly, I agree that the Hills’ appeal is properly dismissed.

I am authorized to state that Judge Johnson joins in this special concurrence.

Decided August 5, 1997.

Steven K. Leibel & Associates, Steven K. Leibel, Carol L. Wilkerson, for appellants.

Ellis & Easterlin, George M. Peagler, Jr., Harper & Barnes, Russ F. Barnes, Bentley, Karesh & Seacrest, Karsten Bicknese, Robin Y. Fink, Althea L. Buafo, for appellees.

       The accident occurred on June 7, 1993.

       Apparently, Grange had to provide coverage unless Davis (a) owned the van in early May, and (b) failed to call the insurance agent to have the van added to his policy. As the jury found that Davis did call the insurance agent to have the van added to his policy, the trial court’s determination that Davis owned the van in early May was not essential to the judgment against Grange.