author: Johnson, Judge.

text:
    A97A1665.
    A97A1666.
    A97A1667.
    CUMBERLAND CENTER ASSOCIATES v. SOUTHEAST MANAGEMENT & LEASING CORPORATION. SPRINT COMMUNICATIONS COMPANY v. SOUTHEAST MANAGEMENT & LEASING CORPORATION. SOUTHEAST MANAGEMENT & LEASING CORPORATION v. CUMBERLAND CENTER ASSOCIATES.
    (492 SE2d 546)
   Johnson, Judge.

These three appeals arise out of a dispute over a real estate commission.

Cumberland Center Associates (hereinafter “Cumberland Center”) owns an Atlanta office building that was largely vacant in 1985. At that time, Sprint Communications Company (hereinafter “Sprint”) was looking for office space in Atlanta and hired Southeast Management & Leasing Corporation (hereinafter “Southeast”) to help with the search. Sprint and Southeast agreed that if Sprint leased office space in Atlanta, Southeast would receive compensation from the landlord of the leased premises. Thereafter, Southeast contacted Cumberland Center and negotiated for Sprint to become the major tenant of Cumberland Center’s office building. Sprint’s tenancy was memorialized in 1985 by a lease agreement for a term of ten years (hereinafter “the 1985 lease”).

Cumberland Center orally agreed to pay Southeast a market rate commission equal to two months’ rent and a five percent annuity for the rent it received from Sprint. Shortly after the 1985 lease was signed, Southeast attempted to memorialize the commission agreement in writing and sent a proposed agreement to Cumberland Center. However, Cumberland Center refused to sign the written proposal because it disputed that Southeast was entitled to receive a five percent annual commission “in perpetuity” and objected to the “global” proposal submitted by Southeast. Even though no written agreement was signed, Cumberland Center paid Southeast the two months’ rent and five percent commission from 1985 through 1990.

In 1989, Sprint was negotiating on its own with Cumberland Center regarding the possible lease of an additional office building owned by Cumberland Center. At the same time, Cumberland Center sent a letter to Southeast concerning the finalization of a written commission contract. Southeast and Cumberland Center executed a written commission agreement dated December 20,1990 (hereinafter “Commission Agreement”). Southeast contends that Cumberland Center demanded it sign the Commission Agreement on threat that it would stop paying the five percent commission if Southeast refused. Southeast further contends that Cumberland Center added no consideration not already due under the alleged oral agreement and that the sole modifications to the alleged oral agreement were to reduce the amount of commission due Southeast after year 15 and to add certain restrictions to the collection of the commissions. Nevertheless, the written Commission Agreement was signed by both parties, and Cumberland Center paid Southeast commissions under the agreement from 1990 through 1994.

The written Commission Agreement (a) gave Southeast a five percent commission for rent Sprint paid on “the initial premises plus all expansions during said initial term” and “all renewals and extensions of the initial term” up to the year 2000; (b) reduced Southeast’s commission to two and one-half percent after the year 2000; (c) ended Southeast’s commission entirely after the year 2010; and (d) provided that no commission would be payable to Southeast “for such periods of time as Sprint employs someone other than [Southeast] as the exclusive agent for Sprint in connection with the leasing of space by Sprint within the Building and [Cumberland Center] is required to pay rental commissions to such other exclusive agents of Sprint in connection with space leased to Sprint within the Building.” The Commission Agreement further stated that “[u]pon the termination of the Lease or any additional or substitute lease agreement between [Cumberland Center] and Sprint with respect to space within the Building . . . then this Agreement shall terminate and [Cumberland Center] shall have no further obligations to [Southeast] hereunder for payments otherwise accruing after such termination.”

In July 1993, with the 1985 lease set to expire in 1995, Sprint hired LaSalle Partners Management Limited Partnership (hereinafter “LaSalle”) to begin looking for other possible rental locations in Atlanta. Cumberland Center began “open book” negotiations with LaSalle in an attempt to retain Sprint as a tenant. In a lease proposal sent to LaSalle, Cumberland Center stated as follows: “The original transaction broker was Southeast Management [which] is due a commission payable at 5% of the new net base rent ($12.60) through September 30, 2000 [sic] (81 months) payable on a monthly basis. ... No commission is assumed payable on the existing unexpired term, operating expenses, nor for any term beyond fifteen years from the original commencement date.” LaSalle informed Cumberland Center that Sprint was not interested in a renewal of the 1985 lease. Instead, in an effort to reduce costs, Sprint wanted to enter a new lease with terms and conditions different than those in the 1985 lease. Specifically, Sprint refused to enter into a lease that gave Southeast any commission and informed Cumberland Center that it did not believe Southeast would be entitled to any commission if a new lease was entered.

Accordingly, Cumberland Center eliminated the cost associated with Southeast’s commission in its proposals. However, Cumberland Center believed that Sprint had an obligation to pay its former broker, Southeast, commissions related to the lease it was negotiating with Sprint and recognized the potential for litigation with Southeast. Sprint did not believe it had any liability for Southeast’s commissions, but agreed to share the risk related to a possible claim by Southeast. Sprint and Cumberland Center entered into a new lease agreement dated August 12, 1994 (hereinafter “the 1994 lease”). Shortly after Cumberland Center and Sprint entered into the 1994 lease, they also entered into a Risk Sharing and Indemnity Agreement by which they agreed to share the costs related to a possible claim by Southeast for commission.

Cumberland Center acknowledges that the 1994 lease involved the same building space, the same landlord and the same tenant. However, it contends that the terms of the 1994 lease are materially different from the 1985 lease. Since both Cumberland Center and Sprint treated the 1994 lease as a “new” lease rather than a “renewal” or “extended” lease, they terminated the 1985 lease. In January 1995, Cumberland Center informed Southeast it would no longer pay Southeast commission payments. Southeast filed a broker’s lien on March 30, 1995 in the amount of $995,321.49, which purportedly represented commission payments due from January 1995 through August 2000.

On May 12, 1995, Cumberland Center filed a complaint seeking a declaratory judgment that Southeast was not entitled to further commissions and that its broker’s lien was invalid, as well as asserting claims for slander of title, punitive damages and attorney fees. Southeast answered and counterclaimed for breach of the alleged oral commission agreement and breach of the 1990 written Commission Agreement, seeking damages under the theories of procuring cause, quantum meruit, unjust enrichment, conspiracy to deprive Southeast of a commission, and requesting perfection of its broker’s lien and attorney fees. Southeast named Sprint and others as additional defendants in its counterclaim, specifically claiming Sprint wrongfully interfered with the Commission Agreement between Southeast and Cumberland Center and was a member of the conspiracy to defraud Southeast of its broker’s commission.

Cumberland Center, Southeast and Sprint moved for summary judgment. In a single order, which does not provide findings of fact or conclusions of law, the trial court: (a) granted summary judgment to Cumberland Center on Southeast’s counterclaims for breach of the alleged oral commission agreement, unjust enrichment, and theories of procuring cause and quantum meruit; (b) granted summary judgment to Southeast on its counterclaim for breach of the 1990 written Commission Agreement; and (c) denied summary judgment to Sprint on Southeast’s claims for tortious interference and conspiracy. We will deal with the claims in this order.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Case No. A97A1667

In this case, Southeast contends the trial court erred in (a) denying it summary judgment and granting Cumberland Center partial summary judgment as to Southeast’s claim for breach of the alleged oral agreement; (b) entering partial summary judgment in favor of Cumberland Center as to Southeast’s claims for unjust enrichment and quantum meruit; and (c) entering partial summary judgment in. favor of Cumberland Center as to Southeast’s claim for commissions under the theory of procuring cause. For reasons which follow, we affirm the trial court’s rulings in this case.

1. The trial court properly granted Cumberland Center’s motion for partial summary judgment on the alleged oral agreement relating to Southeast’s commissions. It is well-established that a contract does not exist unless the parties agree on all material terms. OCGA § 13-3-2. A contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain. Bagwell-Hughes, Inc. v. McConnell, 224 Ga. 659, 662 (164 SE2d 229) (1968). In addition, “[t]he party asserting the existence of a contract has the burden of proving its existence and its terms. [Cit.]” Casper v. Harrison Hatchery, 172 Ga. App. 35, 36 (321 SE2d 785) (1984). This proof must be clear and convincing. Hudson v. Venture Indus., 243 Ga. 116, 117 (252 SE2d 606) (1979).

We agree with the trial court that Southeast’s evidence failed to show the formal requisites of an explicit oral contract between the parties. While the parties agreed that Southeast would receive a double procurement fee and five percent of the rent generated from Sprint, the parties clearly did not reach an agreement as to how long Southeast would receive the five percent commission or as to the breadth of the five percent commission if Sprint were to expand into the same or other buildings owned by Cumberland Center. This lack of agreement is evidenced by the two proposals drafted by the parties.

Southeast’s initial proposal, rejected by Cumberland Center, provided that Southeast would be paid “in perpetuity” a five percent commission under the 1985 lease, any new lease, and all amendments, additions, holdovers, assignments, subleases, extensions or renewals of the lease or new leases and that Southeast would be paid its five percent commission so long as Sprint and Cumberland Center maintained a landlord/tenant relationship, whether related to the leased premises or any other premises. In 1989, Cumberland Center, attempting to finalize the terms of the agreement, wrote the following to Southeast in its proposal: ‘What we lack is to agree and settle on what that agreement is.” Thereafter, the two parties signed the 1990 written Commission Agreement. Smith, Southeast’s president, concedes he read the Commission Agreement, understood it and signed it.

Contrary to Southeast’s contentions, it is clear that no oral contract existed prior to the 1990 written Commission Agreement. While Cumberland Center agreed that Southeast was due a two months’ procurement fee and five percent of the rent generated by Sprint during the initial ten year lease signed in 1985, and voluntarily paid these amounts, it continuously denied that Southeast was due any commissions “in perpetuity” or for space Sprint may have rented from Cumberland Center in different office buildings. Without any agreement as to the duration or breadth of the payments due Southeast, we cannot find that an oral contract existed between Southeast and Cumberland Center. This being the case, no new consideration was necessary for the 1990 written Commission Agreement since it was the first embodiment showing an agreement on all material terms and because it specifically stated that it was being entered “in consideration of services rendered by [Southeast in procuring the 1985 lease] and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. . . .”

The fact that Cumberland Center made voluntary commission payments and agreed that an agreement had been reached regarding some of the terms does not cure the deficiencies of the alleged oral agreement because “the agreement relied upon was so vague, indefinite and uncertain £as to make it impossible for courts to determine what, if anything, was agreed upon . . .’ [cit.]” with respect to the duration and breadth of the alleged oral commission agreement. McConnell, supra. “A court will not carry a contract into effect where it is left to ascertain the intention of the parties by mere guess or conjecture. [Cit.]” Hughes v. McMichen, 164 Ga. App. 304, 305 (296 SE2d 233) (1982). In the present case, the duration and breadth of any agreement between Cumberland Center and Southeast cannot be . said to be “nonessential boilerplate that would rarely be discussed, much less negotiated,” but were essential terms upon which the parties needed to agree before a contract existed. See Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (2) (466 SE2d 27) (1995).

“Clearly the requisites of an explicit contract, such as a meeting of the minds of the parties, mutuality, and the clear expressions of the terms of an agreement, are absent here. [Cit.]” Casper, supra. Under the circumstances of this case, we conclude that no contested issues of material fact remain. Accordingly, we affirm the trial court’s denial of summary judgment to Southeast and grant of partial summary judgment to Cumberland Center on Southeast’s claim for breach of an alleged oral agreement.

2. Based on our ruling below in Case No. A97A1665, the written Commission Agreement is valid and binding in this case. Thus, as Southeast admits, Southeast’s claims for damages based on the theories of unjust enrichment, quantum meruit, and procuring cause are not viable. Accordingly, we affirm the trial court’s denial of summary judgment as to these claims.

Case No. A97A1665

In Case No. A97A1665, Cumberland Center contends the trial court erred in granting Southeast’s motion for summary judgment related to Southeast’s claim for breach of the written Commission Agreement. According to Cumberland Center, it did not breach the written Commission Agreement because the 1994 lease was a new lease as a matter of law, rather than a renewal or extension of the 1985 lease, and, therefore, Southeast was not entitled to commission payments after the 1994 lease was executed. We disagree.

It is well-established that contract disputes are particularly well suited for summary adjudication since construction of a contract is ordinarily a matter of law for the court. Burns v. Reves, 217 Ga. App. 316, 318 (1) (457 SE2d 178) (1995). Furthermore, “[i]f the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties. [Cits.]” Bd. of Regents &c. v. A. B. & E., Inc., 182 Ga. App. 671, 673 (357 SE2d 100) (1987).

In the present case, the written Commission Agreement contemplated Southeast would receive a commission “with respect to the [1985] Lease and any extensions, renewals or replacements thereof. . . .” (Emphasis supplied.) The agreement stated that Southeast’s services had been completed and Southeast had “no additional services to perform in connection with any renewal or extension of the Lease.” It provided for a payment of five percent commission to Southeast “of all Base Rent . . . collected by [Cumberland Center] from Sprint during the initial term of the Lease, for the initial premises plus all expansions during said initial term, which five percent (5%) shall also be payable with respect to all renewals of the Lease to a maximum (i.e. the initial terms plus all renewals and extensions of the initial term) of fifteen (15) years.” (Emphasis supplied.) The agreement reduced Southeast’s commission to two and one-half percent after the year 2000 and ended Southeast’s commission entirely after the year 2010; “provided, however, that extended commissions . . . shall not be due and payable to [Southeast] (i) for such periods of time as Sprint employs someone other than [Southeast] as the exclusive agent for Sprint in connection with the leasing of space by Sprint within the Building and [Cumberland Center] is required to pay rental commissions to such other exclusive agents of Sprint in connection with space leased to Sprint within the Building.” The Commission Agreement further stated that “[u]pon the termination of the Lease or any additional or substitute lease agreement between [Cumberland Center] and Sprint with respect to space within [the] Building, whether such termination is voluntary or involuntary . . . then this Agreement shall terminate and [Cumberland Center] shall have no further obligations to [Southeast] hereunder for payments otherwise accruing after such termination.” (Emphasis supplied.)

We find the written agreement is clear and unambiguous. The fact that the agreement uses the term “renewal” rather than “new lease” is not dispositive of the issue. Indeed, a number of cases have held that these terms are synonymous in that a renewal may require a new document and that the parties’ characterization of the document is not controlling. See, e.g., Crystal Blue Granite Quarries v. McLanahan, 261 Ga. 267 (1) (404 SE2d 266) (1991); Bd. of Regents, supra at 673-674. “In deciding whether a succeeding lease is substantially a renewal of a preceding lease or altogether a new lease, the determination can be based on whether the succeeding lease employs drastically different terms, not simply somewhat different considerations, i.e., is the lessee occupying substantially the same space under substantially the same terms? If the succeeding lease employs substantially the same terms as the preceding lease, it may be considered a renewal even though technically a ‘new’ lease. [Cit.]” Bd. of Regents, supra at 674.

An examination of the 1985 and 1994 leases reveals that Sprint was occupying the same space under substantially the same material terms. Although the 1994 lease is a “net lease,” where the tenant pays as part of rent a pro rata share of the actual operating expenses related to the subject property, and the 1985 lease is a “gross lease,” the substantive effects are minor. The essential elements of the leases are the same: Both leases are between the same parties; both cover the same space; and both are for the same purpose. The other peripheral matters do not change the essential elements or the essential nature of the continued tenancy. We find the 1994 lease does not reveal drastically different material terms which would create an issue of fact as to whether the lease was a renewal of the 1985 lease.

Moreover, the written Commission Agreement contemplates “substituted” or “replacement” leases. These terms “would embrace not only a renewal of the original lease on substantially the same terms, but a completely new agreement employing drastically different terms as well. . . .” Hunter v. Benamy Realty Co., 115 Ga. App. 829, 831 (2) (156 SE2d 160) (1967). Even Cumberland Center, in proposing the changes which were later incorporated in the 1994 lease, described the proposal as follows: “to extend Sprint’s lease term and recast the remaining term of the existing lease.” In this same letter, Cumberland Center informed Sprint that Southeast, as the original transaction broker, was due a commission on the “new” lease.

Cumberland Center also argues that the trial court erred in granting Southeast’s motion for summary judgment on this issue because the Commission Agreement terminated when Cumberland Center and Sprint terminated the 1985 lease. In support of this argument, Cumberland Center relies on the termination language in the Commission Agreement. This language follows a heading entitled “Cancellation of Lease.” The only logical meaning of that language was that Cumberland Center was not obligated to pay Southeast commission payments under the Commission Agreement if the lease was terminated because Sprint stopped occupying the premises due to condemnation, breach of the lease, or other factors. “It is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless. [Cits.]” Bd. of Regents, supra at 675.

We are satisfied that the trial court properly effectuated the intent of the parties by construing the word “renewal” to encompass the new lease entered into between Cumberland Center and Sprint in 1994 and thus requiring Cumberland Center to continue paying commissions to Southeast pursuant to the 1990 Commission Agreement. Thus, we find no error in the grant of summary judgment to Southeast on this issue.

Case No. A97A1666

In this case, Sprint contends the trial court erred in denying its motion for summary judgment on Southeast’s claims for conspiracy and tortious interference with contractual relationship, and in granting Southeast partial summary judgment on its breach of contract claim relating to the 1990 Commission Agreement. We disagree and affirm both rulings.

3. In its first enumeration of error, Sprint contends it is entitled to summary judgment on Southeast’s tort claims because it did not act maliciously and did not procure any alleged breach of the Commission Agreement.

(a) Southeast’s conspiracy theory is based on Sprint’s alleged actions in influencing Cumberland Center not to honor its contractual obligation to pay Southeast commissions by agreeing to execute a new lease and terminate the existing lease. “Because civil conspiracy is by its very nature a secret endeavor, and thus rarely open to direct proof, concert of action, amounting to conspiracy, is best suited for jury resolution and may be proved by either direct or circumstantial evidence. In other words, it is unnecessary to prove an express compact among the alleged conspirators. A jury may infer a civil conspiracy from the nature of the alleged wrongdoers’ acts, the relation between them, their mutual interests in the matter, and other circumstances. [Cit.]” McLane v. Atlanta Market Center Mgmt. Co., 225 Ga. App. 818, 826 (4) (b) (486 SE2d 30) (1997).

According to the record, Cumberland Center acknowledged its contractual obligation to Southeast for commission payments. In fact, in its original lease proposal sent to LaSalle, Cumberland Center specifically noted that Southeast, the original transaction broker, was entitled to a five percent commission through September 30, 2000. Throughout negotiations with Sprint, Cumberland Center believed that Sprint was obligated to pay its former broker and recognized the potential for litigation with Southeast, ultimately requiring Sprint to sign a Risk Sharing and Indemnity Agreement shortly after entering into the 1994 lease. However, according to Cumberland Center, Sprint refused to enter into a lease that gave Southeast any commission, and Cumberland Center needed to extend Sprint’s lease to refinance the building.

After reviewing the 1990 Commission Agreement, Sprint wrote a letter to Cumberland Center indicating its displeasure that Southeast had received continuous commission payments. In part, the letter stated as follows: “It is particularly disturbing that as a component of Sprint’s base rent, Southeast Management was compensated even though this firm provided no brokerage services relating to . . . expansions. This unjust compensation is not what we would expect from an established firm such as your client. . . .” The letter also expressed Sprint’s dissatisfaction with Cumberland Center’s payment of $600,000 to Smith, Southeast’s president, for consultation services related to Sprint’s rental of another office building owned by Cumberland Center. According to Sprint, “[a]nswers to the above issues are imperative to [Cumberland Center’s] relationship with its largest tenant” and directed that Sprint “would like to discuss how [Cumberland Center] proposes to justly compensate Sprint for these broker commission issues.”

Sprint wrote an additional letter informing Cumberland Center that it did not believe Southeast would be entitled to any commission if the 1985 lease was terminated and a new lease was executed. According to Cumberland Center, “[t]his letter marks the point where we realize that the approach we were taking with Sprint was going to be unacceptable to Sprint. The approach we had been taking was to pursue a renewal of the lease which incorporated, you know, various provisions that we had proposed and had incorporated the payment of Southeast Management a fee and at this point it became — this was kind of the point where if we were going to do something on this deal, that we had to take a different — we had to listen to Sprint and respond to their request for a different real estate structure than the track we were headed.”

Cumberland Center testified that Sprint refused to renew the 1985 lease or enter into any lease that gave Southeast a commission. “Sprint was phrasing it we’re not doing a renewal. Mac Smith is not representing us in a new transaction. Lasalle is. If you want to pursue the deal with us, that’s the deal you can pursue, but we’re not pursuing the course you’re on which is a renewal of the old lease.”

Thereafter, Cumberland Center eliminated the cost associated with Southeast’s commissions in its proposals and both Cumberland Center and Sprint treated the 1994 lease as a new lease rather than a renewal. The parties mutually agreed to terminate the 1985 lease and execute another document for the lease of the same space. Cumberland Center even changed language in a press release to “suggest that the release read as a new lease rather than a renewal. . . .” (Emphasis in original.)

We find that this evidence in the record raises génuine issues of material fact as to Southeast’s claim that Sprint conspired with Cumberland Center to deprive Southeast of a commission for Sprint’s “new” lease in 1994. Kenimer v. Ward Wight Realty Co., 109 Ga. App. 130 (135 SE2d 501) (1964), relied upon by Sprint, is distinguishable. A reading of the Kenimer opinion does not reveal any evidence of conspiracy or evidence that a third party suggested or encouraged that the management agreement be. terminated and a new agreement entered. In the present case, there is evidence in the record from which a jury could find conspiracy. While Kenimer suggests that Sprint and Cumberland Center may have been justified in rescinding the 1985 lease, they may not do so as a ploy to deprive a broker of his commission. Accordingly, the trial court did not err in denying Sprint’s motion for summary judgment on this issue.

(b) In its claim for tortious interference with contractual relationship, Southeast contends Sprint interfered with its contractual rights under the 1990 Commission Agreement and frustrated its ability to earn a commission for Sprint’s “new” lease. “Tortious interference with contract requires proof of: (1) an independent wrongful act of interference by a stranger to the contract; (2) malicious intent to cause injury; and (3) resulting damage. Malice, as herein used, is a term to be given a liberal meaning; malicious or maliciously means any unauthorized interference, or any interference without legal justification or excuse.” (Citations and punctuation omitted.) McLane, supra at 827 (5).

According to Sprint, it cannot be responsible for unlawfully depriving Southeast of commission payments since Sprint merely exercised its unqualified legal right to negotiate and enter into a new lease with Cumberland Center. However, the real issue is. not whether Sprint had a legal right to enter into the 1994 lease, but whether Sprint unlawfully interfered with Southeast’s contractual right to commission payments stemming from Cumberland Center’s 1985 lease with Sprint. Evidence that Sprint influenced Cumberland Center into not honoring its contractual obligation to pay Southeast commissions for Sprint’s “new” lease in 1994 raises a question for consideration by a jury that Sprint maliciously interfered with Southeast’s right to commission payments under its contract with Cumberland Center. Id. Because questions of material fact exist, we affirm the trial court’s ruling denying Sprint’s motion for summary judgment on this issue.

Decided September 19, 1997

Paul, Hastings, Janofsky & Walker, John G. Parker, Joseph C. Sharp, for Cumberland Center Associates.

Smith, Gambrell & Russell, Edward H. Wasmuth, Jr., Mark W. McGrory, Charles J. Hyland, for Sprint Communications Company.

Morris, Manning & Martin, Warren W. Wills, Jr., Ann R. Schildhammer, for Southeast Management & Leasing Corporation.

4. Sprint’s second enumeration of error is without merit for the reasons discussed in Case No. A97A1665.

Judgment affirmed.

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

       The 1985 lease was amended and expanded several times as a result of Sprint’s growth, and it is undisputed that, consistent with the Commission Agreement, Cumberland Center paid Southeast commission on the expansions. On October 1, 1993, Cumberland Center and Sprint entered into a lease for additional premises. References to the 1985 lease will include all expansions and amendments of it, including the 1993 lease.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A97A1101.
    CITY OF SOCIAL CIRCLE v. SIMS et al.
    (492 SE2d 240)
   Judge Harold R. Banke.

In this interlocutory appeal, the City of Social Circle (“the City”) appeals the denial of its motion for summary judgment. The City enumerates three errors.

To prevail on summary judgment, defendants who will not bear the burden of proof at trial may point out by reference to the record that there is no evidence, viewed in the light most favorable to the non-movant, sufficient to create a genuine jury question on at least one essential element of plaintiff’s case. Butler v. Gwinnett County, 223 Ga. App. 703 (479 SE2d 11) (1996). Viewed in that light, the record shows that this case arose after Jamie Aldridge drove off a curve on Road 451 just inside the City limits and sustained injuries. She and her mother, Veresa Sims (collectively “Aldridge”) sued the City and Walton County, alleging that severe defects in the road’s design, maintenance, guardrail, and signs caused the wreck. Aldridge proceeded under negligence and nuisance theories.

The City moved for summary judgment, arguing that it was not liable for the alleged defects because the accident occurred on a county road it had not assumed an obligation to maintain. Shortly after the City filed its motion, Aldridge voluntarily dismissed the County.

This appeal ensued after the court denied the City’s motion, finding issues of fact remained to be tried on whether the road was part of the county or municipal system. The court also determined that whether the City had constructive notice of the alleged defects presented a jury question. Held:

1. The trial court properly denied summary judgment on the issue of whether the City had no duty with regard to Road 451. It is undisputed that the County acquired the property for Road 451 in 1951 and 1952. When the County and the Georgia Department of Transportation constructed the road in 1958 it extended up to, but not into, the City limits. At that time, the City limits extended one mile in every direction from a public well located at an intersection in town. In 1972, the General Assembly extended the City limits to two miles in every direction from the public well.

When public highways are in an annexed area and become city streets, the city must keep them reasonably safe. Culpepper v. City of Cordele, 212 Ga. App. 890, 893 (443 SE2d 642) (1994); Mayor &c. of Macon v. Morris, 10 Ga. App. 298, 300 (2) (73 SE 539) (1912). This rule applies even if county authorities made valuable improvements to the road prior to annexation. Marshall v. County of Floyd, 145 Ga. 112, 119 (1) (88 SE 943) (1916).

In determining which entity owns the road, OCGA §§ 32-4-1, 32-4-2, and 32-4-40 must be considered. Subsection (2) of OCGA § 32-4-1 defines county roads as “those public roads within that county, including county roads extending into any municipality within the county, which are shown to be part of that county road system by the department records on July 1, 1973, and any subsequent additions to such county road system made by the county.” Municipal street systems consist of public roads within a municipality’s limits which are not classified as state or county roads. OCGA § 32-4-1 (3). At trial, the jury must review the evidence in light of OCGA §§ 32-4-1 (2) and 32-4-2 (a) and (f) to determine which entity owned the stretch of road at issue.

2. Having found that issues of material fact remain to be tried as to whether Road 451 became part of the City at the time of annexation, we reject the City’s argument that OCGA § 32-4-93 (b) shielded it from liability because it undertook no duty of maintenance and the alleged defects did not fall within that duty. Culpepper, 212 Ga. App. at 893; compare Duncan v. City of Macon, 221 Ga. App. 710, 711 (1) (472 SE2d 455) (1996). Because subsection (b) relates to the liability of cities resulting from defective construction and maintenance of state and county roads lying within the corporate limits, we cannot say it is inapplicable.

Decided August 7, 1997

Reconsideration denied September 23, 1997

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, for appellant.

Dickinson & Mixson, Michael K. Mixson, for appellees.

3. Nor did the trial court err by failing to dispose of the nuisance claim. If the finder of fact determines that the road belonged to the City and its condition constituted a nuisance, then the City faces liability. See Ga. R. &c. Co. v. Tompkins, 138 Ga. 596, 600 (5) (75 SE 664) (1912).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       Because OCGA § 36-36-7 was not enacted until 1981, it has no application to this case. See Barnes v. City of Atlanta Police Dept., 219 Ga. App. 139, 141 (464 SE2d 609) (1995). OCGA § 36-36-7 (c) mandates that, unless otherwise agreed to, a municipality’s annexation of land on either side of a county road results in the municipality’s assumption of ownership of that road.


author: Smith, Judge.

text:
    A97A1163.
    NATIONAL HEALTH NETWORK, INC. v. FULTON COUNTY et al.
    (492 SE2d 333)
   Smith, Judge.

Pursuant to OCGA § 48-5-380, National Health Network, Inc. filed an action for a refund of ad valorem taxes it paid for tax year 1991 on real property it owned in Fulton County. The trial court granted the county’s motion for summary judgment, and National Health Network appeals. We agree with the trial court that National Health has not met the requirements for a refund action pursuant to OCGA § 48-5-380, and we therefore affirm the judgment.

The record shows that National Health did not protest or appeal the county’s valuation of its property in '1991, but instead paid its real estate taxes of $35,421.95 on the property in issue, based upon the county’s valuation of the property at $1,853,000. In 1992, the county again valued the property at $1,853,000, but National Health appealed that valuation. It conditionally withdrew the appeal contingent upon the Joint City-County Board of Assessors setting the fair market value at $1,093,400, and the Joint Board did so. In 1993, the property was valued at $1,769,300, and National Health again appealed. The Board of Equalization reduced the fair market value to the previous year’s valuation of $1,093,400. In 1994, National Health valued the property at $1,093,400 in its tax return for that year. The Board of Tax Assessors accepted that valuation, and no Notice of Assessment Change was issued for that year.

In October 1994, National Health first asserted its claim for a refund for tax year 1991, contending that the fair market value of the property for that tax year had been determined erroneously and that the property had been overvalued. The county refused to change the valuation, and National Health filed this action pursuant to OCGA § 48-5-380 (c).

1. National Health contends the trial court erred in granting the county’s motion for summary judgment because genuine issues of material fact remain for jury resolution and the county is not entitled to judgment as a matter of law. We do not agree.

In general, two procedures exist for challenging the assessment of property for tax purposes: an appeal, pursuant to OCGA § 48-5-311, and a refund action, pursuant to OCGA § 48-5-380. In Gwinnett County v. Gwinnett I Ltd. Partnership, 265 Ga. 645 (458 SE2d 632) (1995), the Supreme Court held that the appeal procedure provided for in OCGA § 48-5-311 was intended by the Legislature to be “the most expeditious resolution of a taxpayer’s dissatisfaction with an assessment, preferably before taxes are paid,” and all issues affecting valuation are within the scope of that procedure. Id. at 646. The Supreme Court held that the refund procedure set forth in OCGA § 48-5-380, on the other hand, was designed to protect taxpayers from “later-discovered defects” in the assessment process. Id. The circumstances under which such a refund action could be pursued when an appeal pursuant to OCGA § 48-5-311 had not been previously taken, therefore, were severely limited. In the absence of a timely appeal, a refund procedure is available only “[i]f the taxpayer alleges that the assessment is based on matters of fact in the record which are inaccurate, or that the assessment was reached by the use of illegal procedures.” Id. at 647.

It is apparent that National Health has established neither a factual inaccuracy in the record nor a procedural illegality entitling it to avail itself of the refund procedure. National Health argues that the property record card for 1991 maintained by the county for the subject property constitutes the “record,” and the county’s inability to locate and produce this card constitutes the type of inaccuracy that entitles it to bring a refund action. This is incorrect. The taxpayer bears the burden of showing an inaccuracy in the record of the entire assessment procedure; the refund action becomes available only when the taxpayer actually demonstrates that the record of the proceedings contains such a factual inaccuracy. The county’s inability to produce a 1991 property record card for this property in response to discovery requests does not itself show an inaccuracy.

Furthermore, National Health has not argued that the method of assessment was “illegal.” Its complaint is that the operating income from the property was smaller in 1991 than in succeeding years and that consequently it is apparent that its property was overvalued in 1991. It also claims that the assessors failed to consider the existing use of the property in setting its value, as they were required to do by OCGA § 48-5-2 (3) (B). Sibley v. Cobb County Bd. of Tax Assessors, 171 Ga. App. 65, 69 (2) (318 SE2d 643) (1984). National Health may be correct on both counts, but such claims must be raised in an appeal. “A claim based on mere dissatisfaction with an assessment, or on an assertion that the assessors, although using correct procedures, did not take into account matters which the taxpayer believes should have been considered ... is not . . . one which asserts that an assessment is erroneous or illegal within the meaning of § 48-5-380.” Gwinnett I, supra at 647.

National Health’s claim that the assessors’ method of valuation was incorrect also fails. First, such issues must be raised in an appeal. City of Atlanta v. North By Northwest Civic Assn., 262 Ga. 531, 535-536 (3) (422 SE2d 651) (1992). Second, it is well established that assessors are not limited to a particular method for determining valuation. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 728 (279 SE2d 223) (1981).

To prevail on its motion, the county, as the defendant, was required only to show the court an absence of evidence to support a necessary element of National Health’s complaint. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). It did so by showing that National Health failed to establish either of the prerequisites for pursuing a refund action. The trial court therefore did not err in concluding that the county was entitled to judgment as a matter of law.

2. National Health contends the trial court erred in denying its motion to supplement the record before ruling on the motion for summary judgment. During oral argument on the motion before the trial court, passing mention was made of the similarity of the state tax refund procedure to that in the federal system. After the hearing but before the trial court entered its order, National Health moved the court to allow it to file a brief on that “issue” and to supplement the record.

We note that we find no ruling on this motion in the record. The burden is on the appellant to establish error by the record. We cannot consider statements in the briefs regarding actions that do not appear in the record. Nodvin v. West, 197 Ga. App. 92, 96-97 (3) (c) (397 SE2d 581) (1990). But even if the trial court actually denied the motion, it was not error. The thrust of the argument National Health sought to have the trial court consider was that the Supreme Court had incorrectly interpreted the refund statute in Gwinnett I, based upon its similarity to analogous federal statutes. But both the trial court and this Court “are constitutionally bound by the decisions of our own Supreme Court. See Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI.” Williamson v. Ward, 192 Ga. App. 857, 858 (1) (386 SE2d 727) (1989).

Decided September 23, 1997

W. Wheeler Bryan, Scott M. Dixon, for appellant.

Thomas A. Cox, Jr., Jacqueline S. Groover, for appellees.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.

       National Health states the card was not produced in discovery. The county disputes this, saying it did produce such a card in discovery, and filed the discovery with the court. The county produced a stamped copy of the discovery, but the discovery was never located in the clerk’s office. Fulton County actually argues that it did not use such a card for 1991. The record was supplemented by consent to include the lost items.

       National Health also appears to argue that the Supreme Court may have incorrectly interpreted the relevant statute in Gwinnett I. Nevertheless, we are, of course, bound by the Supreme Court’s holdings, as discussed infra in Division 2.


text:
    A97A1242.
    YOUNG et al. v. FAULKNER et al.
    (492 SE2d 331)
   Smith, Judge.

This is the second appearance in this Court of this suit for damages for trespass on real property by wrongful cutting and conversion of timber. In Young v. Faulkner, 217 Ga. App. 321 (457 SE2d 584) (1995) (Young I), we affirmed the trial court’s grant of partial summary judgment to the plaintiffs, Esbon Faulkner and Mary Young, on the issue of ownership of the land in issue. After remittitur, Faulkner and Young moved for partial summary judgment on the issue of the wilfulness of the trespass by the defendants W. D. Young, the adjoining landowner, Mark Lott d/b/a Lott Timber Company of Irwin County, Georgia, who cut the timber, and Southern Timber Products, Inc., to whom it was sold. The trial court again granted the plaintiffs’ motion for partial summary judgment, and the defendants again appeal. The issue of wilfulness is important because the measure of damages for the trespass (which was established in Young I) is different when the trespass is wilful from that when it is unintentional. We conclude, as did the trial court, that the trespass was wilful as a matter of law, and we therefore affirm.

W. D. Young does not deny that he cut the timber on property that the trial court and this Court have determined belonged to the plaintiffs. He denies, however, that he did so wilfully. He states in his affidavit submitted in opposition to the second motion for partial summary judgment that he cut the timber only after discussing “the property with a surveyor familiar with the land and with an adjoining landowner,” and after further reviewing the tax records for the property and concluding that he owned it. He contends that he cut the timber in an honest belief that he owned the property. Defendant Young does not specifically so state in his affidavit, but this belief appears to be based upon an error in the security deed of a predecessor in title referring to Young’s property as four acres, when the tract was apparently only two and one-half acres.

The burden was on defendant Young to show that his trespass was innocent. Taylor v. Hammack, 61 Ga. App. 640 (2), 641 (7 SE2d 200) (1940). See also Coleman v. Garrison, 80 Ga. App. 328, 334 (5) (56 SE2d 144) (1949); Cooper v. Brock, 77 Ga. App. 152, 155 (48 SE2d 156) (1948). “[A] wilful trespasser can be defined in general terms as one who knows that he is wrong, while an innocent trespasser is one who believes that he is right. [Cit.] The question as to whether the trespass was wilfully or innocently done is generally for the jury to determine, except in those cases where the trespasser acts with such entire want of care and reckless indifference as would clearly amount to a disregard of the rights of the other party. [Cits.]” Tennessee, Alabama & Ga. R. Co. v. Zugar, 193 Ga. 386 (3) (18 SE2d 758) (1942).

Young’s “belief” notwithstanding, it is clear he had notice that his belief may have been unsound. He nevertheless proceeded to cut the timber across a clearly marked boundary line. The record shows that the southern boundary line of plaintiffs’ property formed the northern boundary of the property belonging to defendant Young. The plaintiffs inherited their property, and it has been in their family since at least 1916. Young purchased his property from the heirs of Carl Brown, Sr. in 1990. The boundary line, marked by an old fence, was visible. It was again marked with red surveyor’s tape and red flags, which were still clearly visible at the time of the cutting in issue. It is uncontroverted that defendant W. D. Young directed Lott to cut the timber on his property. When plaintiff Mary Young noticed Lott elsewhere with logging equipment, she approached Lott to ensure he knew where the boundary lines were between the plaintiffs’ property and that of W. D. Young. He “specifically informed [Mary Young] that he would be sure where the lines were located and established” before cutting. Shortly thereafter, he cut timber across the boundary line on the plaintiffs’ property even though the boundary line was clearly marked.

Moreover, Ben Mills, Jr., the attorney who represented the Brown heirs who sold the property to defendant W. D. Young, submitted an affidavit in support of the plaintiffs’ motion for partial summary judgment. Mills stated that the property was advertised as containing only two and one-half acres, and an announcement was made at the public sale setting forth clearly that the tract contained only two and one-half acres.

Decided September 23, 1997.

John T. Croley, Jr., for appellants.

Rogers & McCranie, Murphy Rogers, for appellees.

Had defendant Young wished to do so, he could have tested his “belief” regarding the boundary line in the courts. He did not do so, and we have no hesitation in agreeing with the trial court that his trespass was not innocent.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       OCGA § 51-12-50 provides that “[e]xcept as provided in Code Section 51-12-51, where plaintiff recovers for timber cut and carried away, the measure of damage: (1) Where defendant is a willful trespasser, is the full value of the property at the time and place of demand or when an action is brought without deduction for his labor or expense; (2) Where defendant is an unintentional or innocent trespasser or an innocent purchaser from such trespasser, is the value at the time of conversion less the value he or his vender added to the property; and (3) Where defendant is a purchaser without notice from a willful trespasser, is the value at the time of his purchase.”


text:
    A97A1520.
    WALKER v. BRUNO’S, INC.
    (492 SE2d 336)
   Judge Harold R. Banke.

Angela Walker sued Bruno’s, Inc. d/b/a Foodmax (“Bruno’s”) for personal injuries allegedly sustained during a slip and fall in a Food-max store. Following a defense verdict, Walker enumerates six errors.

On appeal, the evidence must be strongly construed to support the jury’s verdict and the judgment. Citizens Bank of Ball Ground v. Johnson, 191 Ga. App. 155, 158 (2) (381 SE2d 121) (1989). Viewed in that manner, the evidence was as follows. Some time before the incident at issue, an employee distributed sample slices of watermelon to store customers. Prior to her fall, Walker remained in one location for about 15 minutes awaiting store assistance. Despite standing in the same area for 15 minutes, Walker did not observe any watermelon rinds or juice on the floor. After the delay, she took three or four steps and slipped and fell on watermelon juice. When the assistant store manager, Gilbert Encincio, arrived almost immediately after the fall, he saw some juice on the floor and picked up a small piece of rind. According to Encincio, the wet spot was about a foot square. He testified that he was unaware of any spills despite having finished sweeping the entire store about 30 minutes earlier.

In responding to interrogatories and deposition questions, Walker failed to fully disclose all pertinent information about her medical history, previous injuries, and prior criminal convictions. Although Walker claimed the incident at issue caused injuries to her back and left knee, her medical records belied those assertions, revealing that she had been under treatment for her back and left knee since 1975. According to her medical records, she informed her treating physician that she had no prior problems with her knees, when, in fact, she had had surgery to both knees. At trial, she offered various rationalizations, including “I probably didn’t understand the question,” and “I probably made a mistake on that.” Using certified copies of her two shoplifting convictions, Bruno’s impeached Walker. Held:

1. Walker contends that the verdict was contrary to the evidence and lacked an evidentiary basis. On appeal, a jury verdict must be affirmed when it is supported by any evidence. Professional Consulting Svcs. of Ga. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992). Here, the evidence did not demand an outcome in Walker’s favor inasmuch as the evidence was conflicting and disputed. See Jordan v. Stephens, 221 Ga. App. 8, 10 (3) (470 SE2d 733) (1996). As the factfinder, the jury was free to conclude that Walker failed to exercise ordinary care for her own safety or that Bruno’s lacked knowledge of the alleged hazard. See Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984).

2. The trial court did not err in allowing the introduction of certified copies of Walker’s prior convictions. This evidence was admissible after her testimony at trial contradicted information Walker had disclosed on a medical history form. See O’Neal v. Kammin, 263 Ga. 218, 219 (430 SE2d 586) (1993) (witness in a civil case may be impeached by proof that she had been convicted of a felony or other crime involving moral turpitude); Tilley v. Page, 181 Ga. App. 98, 99-100 (4) (351 SE2d 464) (1986) (shoplifting deemed to be crime of moral turpitude).

Moreover, in response to an interrogatory question, Walker indicated that she had one shoplifting conviction when, in fact, she had been convicted twice. See OCGA § 24-9-83. A witness may be impeached on a collateral matter, and the evidence tendered for impeachment purposes need not be of the kind or quality required to prove the facts in issue. Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839, 842 (9) (418 SE2d 119) (1992).

Notwithstanding Walker’s contrary assertion, the trial court did not permit cross-examination about the shoplifting convictions themselves, restricting counsel’s inquiry to verification of the certified copies and to the inconsistent interrogatory response. Compare Scott v. Chapman, 203 Ga. App. 58, 59 (1) (416 SE2d 111) (1992). The transcript also belies Walker’s claim that she was not afforded an opportunity to explain the circumstances surrounding the convictions. Tilley, 181 Ga. App. at 100 (4). Walker provided a long, rambling explanation of her version of the events. Compare Johnson v. Ray, 206 Ga. App. 262, 264 (4) (424 SE2d 892) (1992).

Decided September 23, 1997

L. B. Kent, for appellant.

Self, Mullins, .Robinson & Marchetti, Ronald W. Self, for appellee.

3. The trial court did not err in providing the pattern instructions on avoidance of consequences, superior knowledge, equal negligence, and comparative negligence. See Suggested Pattern Jury Instructions, Vol. I, Civil Cases, pp. 235-236. A trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence. Blankenship v. West Ga. Plumbing Supply, 213 Ga. App. 275, 277-278 (444 SE2d 596) (1994). Here, Walker admittedly stood for nearly fifteen minutes within three or four steps of where she eventually slipped but failed to see watermelon juice on the floor near her feet and failed to observe a piece of rind which was readily visible to the assistant manager who arrived in the area almost immediately. Whether in exercising ordinary care for her own safety Walker should have seen the watermelon juice or whether she could have avoided the consequences of Bruno’s alleged negligence were questions for jury resolution. OCGA § 51-11-7; see Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Whether both parties were equally negligent in failing to discover the hazard or whether Walker’s negligence was less than Bruno’s negligence were disputed issues to be resolved by the jury. North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346) (1981). A charge on comparative negligence, as given here, requires only the existence of slight evidence from which a jury could infer negligence. Norman v. Williams, 220 Ga. App. 367, 370 (4) (469 SE2d 366) (1996). Under these facts, we are not able to find error with the instruction as a whole.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A97A1558.
    BASU v. THE STATE.
    (492 SE2d 329)
   Judge Harold R. Banke.

... In this non-jury trial arising from a domestic dispute, Ratan Basu was convicted of battery, simple battery and two counts of obstruction of a law enforcement officer. At trial, Basu acted pro se. On appeal, he enumerates three errors.

The evidence, viewed in the light most favorable to the verdict, shows that the arresting officer responded to a call from Basu’s wife. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996). Basu’s daughter and wife both met the officer in the parking lot of their apartment. Basu’s wife was terrified and crying. Her face was red and swollen and she had knots on the back of her head. According to the officer, Basu’s daughter stated that her mother had been beaten and she felt it necessary to call the police this time, though they had not in the past. Basu’s wife attributed the knots to her husband and stated she could not put up with his treatment any longer.

The officer approached Basu’s apartment and knocked on the door. When Basu opened the door, the officer advised Basu that he was under arrest for battery. Basu laughed and responded, “Not in my house.” When the officer persisted, Basu became enraged and tried to slam the door, and the officer called for assistance. After the back-up officer arrived, both officers entered the apartment. Basu insisted that they could not enter his home and could not arrest him. When the back-up officer grabbed Basu’s arm, Basu turned and pulled away, heading for a back bedroom. Basu then balled his fist and turned toward the back-up officer. At that point, the officers forcefully restrained Basu and arrested him. The arresting officer testified that while Basu was sitting in the patrol car he admitted “that he had beat his wife many times before for talking badly to him.”

At trial, Mrs. Basu denied that her husband had ever hit her. She also admitted, however, that in her culture, if a husband instructed his wife to deny to non-family members that he hit her, the wife would have to obey. Held:

1. The evidence, viewed in the light most favorable to the verdict, was sufficient to permit a rational trier of fact to find all the essential elements of battery and simple battery. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). A person commits the offense of battery when he intentionally causes visible bodily harm to another. OCGA § 16-5-23.1 (a). The pertinent elements of simple battery are intentionally making insulting or provoking physical contact with another’s person. OCGA § 16-5-23 (a) (1). The arresting officer’s testimony that Mrs. Basu appeared terrified, had a red, swollen face, knots on the back of her head, and said “that her husband had done it” satisfied the elements of both battery and simple battery. See Johnson v. State, 195 Ga. App. 723, 724 (2) (394 SE2d 586) (1990); Wells v. State, 222 Ga. App. 587, 588 (3) (474 SE2d 764) (1996) (physical precedent only) (finding evidence sufficient on all counts notwithstanding their merger). The trier of fact was entitled to reject Mrs. Basu’s testimony denying that Basu hit her. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994) (appellate court does not weigh the evidence or determine witness credibility).

By failing to object at trial, Basu waived his contention that the arresting officer’s testimony recounting his wife’s statements constituted inadmissible hearsay. Waldrip v. State, 267 Ga. 739, 748 (12) (482 SE2d 299) (1997). Moreover, the statements at issue, made so close in time to the offenses, were admissible as res gestae. OCGA § 24-3-3; McKinney v. State, 218 Ga. App. 633, 634 (1) (463 SE2d 136) (1995).

Notwithstanding Basu’s argument to the contrary, the State’s failure to conduct a hearing under Uniform Superior Court Rule 31.3 before eliciting the arresting officer’s testimony that Basu admitted he had previously beaten his wife does not require reversal. While compliance with Rules 31.1 and 31.3 is mandatory for the admission of all prior acts involving the victim and the accused, the issue was waived by Basu’s failure to object at trial or raise it on motion for new trial. Williams v. State, 218 Ga. App. 785, 787 (2) (463 SE2d 372) (1995); see Maxwell v. State, 262 Ga. 73, 75 (2) (414 SE2d 470) (1992).

2. By failing to raise the issue in the trial court, Basu waived his argument that his battery and simple battery charges merged. Henderson v. State, 218 Ga. App. 311 (3) (460 SE2d 876) (1995); Edmonson v. State, 212 Ga. App. 449, 451 (3) (442 SE2d 300) (1994). In light of the sentence imposed, which precludes the pursuit of habeas proceedings, we decline to exercise our discretion by addressing this issue. Compare Wells, 222 Ga. App. at 588 (3).

3. The evidence was sufficient to support both charges of obstruction, one on each officer. Jackson v. Virginia, 443 U. S. at 319-320. The elements of misdemeanor obstruction of an officer are the knowing and wilful hindrance of a law enforcement officer lawfully discharging his or her duties. OCGA § 16-10-24 (a). Even verbal exchanges may be sufficient to establish the hindrance element. Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992). Thus, the testimony that Basu resisted the initial attempt to arrest him by refusing to comply with the arresting officer’s orders and attempting to slam the door in his face, purposefully attempted to elude the back-up officer, and balled his fist in an implicit attempt to strike the back-up officer was sufficient to support the verdicts.

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.

Decided September 23, 1997.

James M. Mullís, for appellant.

Ratan Basu, pro se.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Ladonya M. Horton, Assistant Solicitors, for appellee.

       The State’s failure to even address this issue is disappointing.

       The record on appeal includes no transcript from the motion for new trial hearing. See Howe v. State, 250 Ga. 811, 814 (2) (301 SE2d 280) (1983) (Where record does not fully disclose what transpired, complaining party bears the burden of providing transcript). The issue was not raised in Basu’s written motion for new trial.

       Basu received a 36-month sentence on the four misdemeanor counts. His jail time was suspended on condition that he complete a domestic violence intervention program, pay a fee therefor, and perform community service.


author: Birdsong, Presiding Judge.

text:
    A97A1622, A97A1623.
    BARHAM v. LEVY (two cases).
    (492 SE2d 325)
   Birdsong, Presiding Judge.

Dorothy Barham, an incapacitated adult, by her legal guardian and next friend, Christine Harris, appeals the judgment, based on a jury verdict in favor of Robert M. Levy, M.D., in Barham’s action against Dr. Levy for medical malpractice. Barham’s complaint alleged that Dr. Levy’s negligence caused her to have a stroke and become incapacitated.

After Barham collapsed, she was taken to the hospital where the neurologist on call performed a cerebral arteriogram. This procedure was only partially successful, and the neurologist directed Dr. Levy to conduct a second arteriogram. Unfortunately, during the second procedure Barham suffered a stroke and incurred permanent brain damage. Initially, Barham sued the neurologist, Dr. Levy, the hospital involved, and others alleging various claims, including professional negligence. The complaint alleged that the physicians were liable because they negligently performed the first arteriogram and that negligence combined with Dr. Levy’s negligence in performing the second arteriogram caused Barham’s stroke.

The defendants moved for summary judgment .on various grounds, but the only ground relevant here is that they contended that the first arteriogram did not cause Barham’s stroke. The trial court granted this motion. On appeal to this Court, although the grant of summary judgment to Dr. Levy was reversed, the grant of summary judgment regarding the first arteriogram was affirmed in an unpublished opinion. In relevant part this Court held that Bar-ham had produced no evidence that the first arteriogram caused her any injury because her own evidence negated her claim that the first procedure led to her stroke.

Upon remand the trial court granted Dr. Levy’s motion in limine excluding evidence of alleged malpractice in the first arteriogram because that procedure had been determined as a matter of law not to have caused Barham’s stroke. Evidence was introduced, however, regarding the facts surrounding the first procedure.

After a jury trial, a defense verdict resulted. Upon the denial of Barham’s motion for ¡a new trial, these appeals followed.

In Case No. A97A1622, Barham contends the trial court erred by instructing the jury that Dr. Levy could not be held liable for medical complications, by excluding evidence that Dr. Levy participated in an improper medical procedure that allegedly contributed to Barham’s injury, and by refusing to charge on concurrent negligence. In Case No. A97A1623, Barham appeals the trial court’s order denying her affidavit of indigence. She contends the trial court erred by doing so because she is permanently disabled in a nursing home, has no assets, and is unable to pay the costs and expenses of an appeal because of her indigence. Dr. Levy did not contest Barham’s affidavit and has not filed a traverse. Nevertheless, the trial court denied her affidavit, and Barham contends the trial court had no authority to do so sua sponte without conducting a hearing, without stating factual findings, and without traverse or challenge by the other party. Held:

Case No. A97A1622

1. Barham contends the trial court erred by giving the following charge: “I charge you that in the event a patient develops a certain condition, or an event occurs which is recognized to be an accepted risk or known complication of medical treatment, that alone is not proof of negligence. I charge you that a stroke is a recognized complication of an arteriogram procedure.” Barham does not contest the first sentence of this charge, and it is a correct statement of the law. See Chavous v. Richmond County Hosp. Auth., 169 Ga. App. 473, 474 (313 SE2d 492); Smith v. Luckett, 155 Ga. App. 640, 641 (271 SE2d 891).

Instead, Barham focuses on the trial court’s failure to charge the jury that a stroke was a possible complication of an arteriogram. It is a fundamental rule that jury instructions must be considered as a whole in determining whether there was error in the charge. Hambrick v. State, 256 Ga. 688, 690 (353 SE2d 177); Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (385 SE2d 746). When the charge is considered in that manner, we find no error in giving the charge to which Barham objects. The trial court fully charged the jury on the law concerning an allegation of professional negligence and, in particular, charged on the standards of care and what must have been established in order to hold Dr. Levy liable. Examination of the charge shows that the jury was not charged that Dr. Levy could not be found liable merely because Barham suffered a known complication of the procedure. Thus, the fact that “possible” was not used to describe “complication” is not fatal. It is understood that complications are themselves possibilities inherent in medical procedures. The effect of the charge given was to instruct the jury that Dr. Levy could not be held liable merely because the jury found that Barham suffered a complication of the procedure. This also was a correct statement of the law. Accordingly, the trial court did not err.

2. We also find no error in the trial court’s excluding the evidence regarding the first arteriogram procedure. The trial court had earlier concluded that there was no proof that this procedure caused Bar-ham’s injury, and this decision was affirmed by this Court on appeal. Therefore, this evidence was not relevant to the jury’s determination of whether Dr. Levy should be held liable for his alleged negligence in the second arteriogram.

Because of the law of the case rule (OCGA § 9-11-60 (f)), the earlier decision of this Court affirming the trial court concerning the lack of causation was binding on the trial court on this issue, and it is also binding on this Court. Eastgate Assoc., Ltd. v. Piggly Wiggly Southern, 200 Ga. App. 872 (410 SE2d 129). Therefore, evidence that anyone was negligent in performing the first procedure was not relevant to the issues in this case because such negligence did not cause Barham’s injury.

Further, as a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). As Barham has shown no abuse of discretion, this enumeration of error is without merit.

3. We also find no error in the trial court’s refusal to charge on concurrent negligence. This charge is based on the allegation that the negligence in the first procedure operated in combination with Dr. Levy’s concurrent negligence to produce Barham’s injury. Because the first procedure was determined as a matter of law not to cause any injury to Barham, that negligence could not have been concurrent negligence with the negligence alleged in the second arteriogram. Therefore, a charge on concurrent negligence was not authorized by the evidence. “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Punctuation omitted; emphasis in original.) Mattox v. MARTA, 200 Ga. App. 697, 699 (409 SE2d 267). Accordingly, this enumeration of error is also without merit.

Case No. A97A1623

4. Although the trial court’s ruling on all issues of fact concerning the ability of a party to pay costs is not subject to review (OCGA § 9-15-2 (b)) and a hearing is not required (Morris v. Dept. of Transp., 209 Ga. App. 40 (432 SE2d 638)), in this instance no issue of fact was presented because the affidavit of indigence was not contested and there is no evidence in the record showing that Barham was not indigent. Moreover, although the trial court had authority to inquire into the validity and truthfulness of the affidavit even in the absence of a traverse by the other party (Walker v. Crane, 216 Ga. App. 765, 767 (455 SE2d 855)), the court did not do so, and there is no evidence supporting the trial court’s ruling. Accordingly, the trial court’s order denying Barham’s pauper’s affidavit is reversed, and the case, is remanded with instruction to grant indigent status to Barham. Although we appreciate the trial court’s obvious concern for financial resources of the county, especially in cases such as these in which as Dr. Levy states, “whether the appellant is granted indigence status and permitted to proceed in forma pauperis is of no consequence to Dr. Levy,” nevertheless, the denial of indigent status must be made upon matters in the record.

Decided September 23, 1997

James W. Howard, for appellant.

Love & Willingham, Daryll Love, Traci G. Courville, Richard H. Hill II, for appellee.

Judgment affirmed in Case No. A97A1622. Judgment reversed with direction in Case No. A97A1623.

Ruffin and Eldridge, JJ, concur.


author: Pope, Presiding Judge.

text:
    A97A1643.
    WHISBY v. BRUNO’S FOOD STORES, INC.
    (492 SE2d 338)
   Pope, Presiding Judge.

In this slip and fall case, plaintiff Mattie Whisby appeals the trial court’s grant of summary judgment for defendant grocery store. Because plaintiff cannot show that defendant had superior knowledge of the hazard which caused her fall, we affirm.

Viewed in a light favorable to plaintiff as the non-movant, the record shows that plaintiff slipped in a puddle of liquid which contained red, yellow, and green food particles. She fell in the bread aisle of defendant’s store, where the floor was off-white. Plaintiff testified that she was not looking at the floor as she shopped; that she did not see the puddle until she fell; and that she is not sure whether she would have seen it if she had been looking. One of defendant’s managers was in the bread aisle when plaintiff fell, facing the direction of the puddle, about fifteen to twenty feet away.

To recover, a plaintiff in a slip and fall case must show that the defendant had actual or constructive knowledge of the hazardous condition causing the fall, and that the plaintiff did not. See, e.g., Drake v. Kroger, 213 Ga. App. 72 (1) (443 SE2d 698) (1994). In the absence of actual knowledge, a plaintiff can show constructive knowledge either by showing that the hazard had been there so long the defendant should have discovered it, or by showing that an employee of the defendant was in the immediate area of the hazard and could have easily seen it. Id. at 73-74.

Decided September 24, 1997.

Adams & Jordan, Virgil L. Adams, for appellant.

Jones, Cork & Miller, Wendell K. Howell, Timothy Harden III, for appellee.

In this case, there is no evidence of actual knowledge on the part of defendant; nor is there any evidence indicating how long the puddle was there. Thus, plaintiff must show that the department manager could and should have seen the puddle from his position 15 to 20 feet away. Yet at the same time, she must show that she was being careful and still failed to see the puddle as she approached and entered it. As this is a logical impossibility, the trial court did not err in granting summary judgment for defendant. Cf. Moore v. Kroger Co., 221 Ga. App. 145, 147 (470 SE2d 529) (1996) (if a grape on the floor should have been visible to a store employee six to eight feet away, it should have been visible to the plaintiff). Neither plaintiff’s shopping cart nor the bread on the shelf were distractions which could excuse plaintiff from the duty of looking where she was going. See Moore v. Kroger Co., 221 Ga. App. 520, 522 (471 SE2d 916) (1996); Minor v. Super Discount Markets, 211 Ga. App. 123 (438 SE2d 384) (1993).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Blackburn, Judge.

text:
    A97A1406.
    BOGGS v. BOSLEY MEDICAL INSTITUTE, INC. et al.
    (492 SE2d 264)
   Blackburn, Judge.

James Boggs appeals the trial court’s grant of summary judgment to Bosley Medical Institute, Inc. (Bosley) and David Phillips, M.D., on Boggs’ claims for fraud and medical malpractice, contending that the trial court erroneously held such claims to be barred by the statute of limitation. For the reasons discussed below, we reverse the grant of summary judgment with respect to the fraud claim, but affirm the grant of summary judgment with respect to the medical malpractice claim.

Bosley operates medical offices throughout the United States specializing in hair restoration and hair transplant services. In or around February 1989, Boggs contacted Bosley regarding treatment for his hair loss problem. Boggs claims that, during his initial consultation, it was represented that only two surgical treatments would be required to correct his problem. However, after the two surgical procedures on February 21, 1989, and July 17, 1989, Boggs claims that his scalp was badly scarred and his hair density was not as promised. Boggs returned to Bosley and claims he was told that one more surgical “touch-up” procedure was required. Following surgery on April 25, 1990, however, he still had not achieved the promised results. Between June 18, 1990, and November 11, 1993, five more surgical procedures were performed by Bosley physicians. Boggs claims that, prior to each such surgery, he was informed that only one more treatment was required to correct the problem.

On March 14, 1994, Boggs consulted Dr. Marc Pomerantz, a hair replacement surgeon and former associate medical director for Bosley. Pomerantz informed Boggs that it was Bosley’s standard practice to intentionally underestimate the number and the cost of treatments required to correct prospective patients’ hair loss problems, knowing that additional treatments would be required.

On February 23, 1996, Boggs sued Bosley for fraud, claiming that it had intentionally misrepresented the number of procedures required to correct his hair loss problem. He also asserted a malpractice claim against Bosley and Phillips, the physician who performed one of his surgical procedures, alleging that such procedure was negligently performed. Bosley and Phillips moved for summary judgment, contending primarily that Boggs’ claims were barred by the two-year medical malpractice statute of limitation. The trial court granted summary judgment to both defendants, and Boggs appeals from that ruling.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

1. (a) Boggs contends that the four-year statute of limitation for fraud, rather than the two-year statute of limitation for medical malpractice claims, is applicable to his fraud claim. We agree.

OCGA § 9-3-71 (a) states that, “[ejxcept as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” The term “action for medical malpractice” includes “any claim for damages resulting from the death of or injury to any person arising out of. . . [hjealth, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person.” OCGA § 9-3-70.

Boggs’ fraud claim states a cause of action separate and distinct from any claim of medical malpractice. Boggs does not contend that Bosley negligently misdiagnosed his condition. Rather, he contends that Bosley, as part of its standard procedure and without regard to its medical opinion, intentionally and repeatedly understated the number of treatments required in order to induce Boggs to undergo a series of costly treatments. Boggs argues that this constitutes ordinary fraud and is therefore not subject to the medical malpractice statute of limitation.

“Not every claim which calls into question the conduct of one who happens to be a [professional] is a professional malpractice claim requiring expert testimony or an OCGA § 9-11-9.1 affidavit. It is only where the claim is based upon the failure of the professional to meet the requisite standards of the subject profession that the necessity to establish such standards and the violation thereof by expert testimony for the guidance of the jury arises.” Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508 (451 SE2d 66) (1994). Although a physician does indeed have a duty not to defraud his patient by intentionally misrepresenting the number of required treatments, such duty does not arise by virtue of the physician’s specialized expertise or his status as a professional. “ ‘Thou shall not defraud,’ is a proposition that is understood by even the most uneducated layman. Indeed, what professional could deny its propriety? It follows therefore that no expert testimony is required to establish that it is improper for [physicians] to defraud their clients. It is improper for any person to defraud another as that is a standard of society, from which no one is excepted.” (Emphasis in original.) Id. at 509.

Accordingly, since Boggs’ fraud claim does not arise out of the violation of a standard of care peculiar to a professional, it does not constitute a medical malpractice claim and is not subject to the two-year medical malpractice statute of limitation.

(b) Boggs also argues that the statute of limitation on the fraud claim was tolled by Bosley’s fraud and did not begin running until March 14, 1994, when he consulted with Dr. Pomerantz and was advised that it was Bosley’s standard practice to underestimate the amount of treatment required for prospective patients. For the reasons discussed below, there is a jury question as to whether or not the statute of limitation was tolled by defendant’s conduct.

“[I]f the defendant is guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud. . . . The confidential relationship between doctor and patient creates a duty to inform the patient of his or her condition. Failure to fulfill this duty would constitute fraud, which would toll the statute of limitation.” (Punctuation omitted.) Hendrix v. Schrecengost, 183 Ga. App. 201, 202 (1) (358 SE2d 486) (1987).

In a recent legal malpractice case, this Court held that a law firm’s continued relationship with its former client, while assuring the client that he had no exposure to liability as a result of the firm’s actions, was sufficient to authorize a finding that the statute of limitation was tolled. Frame v. Hunter, Maclean, Exley &c., P.C., 227 Ga. App. 169 (488 SE2d 713) (1997). See also Bynum v. Gregory, 215 Ga. App. 431, 433-434 (450 SE2d 840) (1994).

There is evidence from which the jury could conclude that the statute of limitation was tolled. According to Boggs’ allegations, Bosley did more than merely continue to treat Boggs — it affirmatively and repeatedly misrepresented his condition in order to induce him to continue treatment and to conceal its prior misrepresentations. Under these circumstances, there is a jury question as to whether the statute of limitation was tolled by Bosley’s continuing fraud. Accordingly, the trial court erred in granting Bosley’s motion for summary judgment on the fraud claim based on expiration of the statute of limitation.

(c) Bosley also contends that it was entitled to summary judgment on the fraud claim because, prior to each surgical procedure, Boggs signed a form acknowledging that “no guarantee or promise regarding the eventual appearance or permanence of results has been made” and that “no guarantee or assurance of results has been made by anyone regarding the operation which I have herein requested and authorized.” Bosley contends that Boggs thus could not have reasonably relied on Bosley’s representations.

This argument is without merit with respect to Boggs’ fraud claim, as the acknowledgments in the forms relate to the appearance or permanence of results of the particular operations, and not to Bosley’s representations regarding the number and cost of expected procedures. Accordingly, such acknowledgments do not preclude Boggs from asserting a fraud claim based upon Bosley’s alleged intentional misrepresentations regarding such matters.

2. In addition to his fraud claim, Boggs asserted a medical malpractice claim against Bosley and Phillips, alleging that a surgical procedure on June 15, 1993, was negligently performed, resulting in complications including a hematoma on Boggs’ scalp. Boggs claims that he was required to undergo surgery by another Bosley physician on November 11, 1993, in an attempt to correct this problem.

Decided September 11, 1997

Reconsideration denied September 29, 1997

Salter & Richards, Katharyne C. Johnson, for appellant.

Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., Kevin P. Race, for appellees.

The statute of limitation in a medical malpractice case generally begins running on the date of injury. OCGA § 9-3-71 (a). It is undisputed that notwithstanding any conduct by Bosley or its agents, Boggs’ injuries from such procedure manifested themselves no later than November 11, 1993, when he underwent a subsequent procedure to correct the hematoma caused by the previous surgery. Boggs did not file suit until February 23, 1996, well outside the statute of limitation. Accordingly, the trial court did not err in granting defendants’ motion for summary judgment on this claim.

' Judgment affirmed in part and reversed in part.

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


author: Beasley, Judge.

text:
    A97A1067.
    WHATLEY v. NATIONAL SERVICES INDUSTRY, INC. et al.
    (492 SE2d 343)
   Beasley, Judge.

Joann Whatley tripped on a wrinkled mat located at an unlit entrance to Max Fuller’s Amoco Food Store. National Services Industry, Inc. (“NSI”) provided the mat to Fuller. Whatley sued Fuller and NSI for negligence, and the court granted summary judgment to both. We reverse in part and affirm in part.

Construed in favor of Whatley, the evidence shows that Fuller contracted with NSI for NSI to provide commercial mats to Fuller’s store, which NSI replaced with freshly laundered mats each week. The 3' x 5' mat for the store entrance was placed lengthwise on the raised sidewalk immediately outside the door so that about one foot lay on the sidewalk and about two feet lay on the wheelchair ramp leading up to the sidewalk. Between the sidewalk and the ramp was a discontinuity, which the mat covered. The mat was not fastened down.

At about 9:45 p.m. on the evening of October 2, 1993, Whatley was a passenger in a car that stopped for gas at Fuller’s store where she had not been before. She went in to make a purchase. As she ascended the ramp at the entrance, her right foot, clad in a tennis shoe, caught on the wrinkled-up edge of the mat, and she fell forward into the steel door frame, sustaining serious injuries.

Whatley testified that although she saw the ramp and mat as she approached, she did not notice anything hazardous about them, for it was dark outside and the lights over the door entrance were not on. Her companions confirmed that the area near the store entrance was very dark. One companion came to assist Whatley and testified that when she stooped down to help Whatley, she saw horizontal wrinkles throughout the mat which were not visible from a standing position.

1. Whatley contends that because there are issues of material fact, the court erred in granting summary judgment to proprietor Fuller and mat-provider NSI. We will first address Fuller.

‘Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. “In general, ‘negligence issues are susceptible to summary adjudication only in plain, palpable and indisputable cases; the evidence must be construed most favorably to the party opposing the motion, and he must be given the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. Summary judgment may be granted only where, construing all inferences against the movant, it yet appears without dispute that the case can have but one outcome and that outcome must be in the movant’s favor.’ [Cit.]” Sykes v. Colony Regency Partners, Ltd., 226 Ga. App. 804, 806 (487 SE2d 408) (1997).

Alleging that Fuller negligently maintained the mat, Whatley presented evidence that it was wrinkled and posed a hazard to invitees. Fuller himself testified that the mat occasionally would get wrinkled up, and that he instructed his employees, who could see the mat from the cashier’s desk, to look for and straighten out any wrinkles. Because the lights over the mat were not on, the area around the mat was dark, which prevented Whatley from discerning the danger.

This evidence precludes summary judgment in favor of Fuller. Floor mats “subject to periodic folding, bunching, rolling, and shifting” can constitute hazards for which landowners may be liable. Jet Food Stores v. Kicklighter, 226 Ga. App. 552 (487 SE2d 120) (1997). See Best v. Dublin Eye Assoc., P.C., 188 Ga. App. 225 (372 SE2d 495) (1988) (landlord liable for placement and maintenance of defective mat). Poor lighting along a path intended for use by invitees can make it difficult for an invitee to discern a hazard. Sykes, supra (nonworking light fixture prevented plaintiff from seeing sidewalk construction); Brennan v. The Freight Room, 226 Ga. App. 531 (487 SE2d 109) (1997) (poorly illuminated walkway prevented plaintiff from seeing curb and drop in elevation); Sacker v. Perry Realty Svcs., 217 Ga. App. 300 (457 SE2d 208) (1995) (poor lighting in parking lot prevented plaintiff from seeing out-of-place railroad tie).

“ ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ [Cit.]” Brennan, supra, 226 Ga. App. at 533 (1). See Restatement (Second) of Torts, § 343 (1965).. “The principle of equal or superior knowledge applies to static defective or dangerous conditions on property. [Cit.]” Jet Food Stores, supra, 226 Ga. App. at 553 (1); Newell v. Great A & P Tea Co., 222 Ga. App. 884, 885 (2) (476 SE2d 631) (1996). The defendant must show that no genuine issue of fact exists as to its lack of actual or constructive knowledge of the hazard. Hilsman v. Kroger Co., 187 Ga. App. 570, 571 (2) (370 SE2d 755) (1988).

Fuller’s liability could be based on constructive knowledge alone. Newell, supra, 222 Ga. App. at 886. “Constructive knowledge may be established by showing either that: (1) an employee of the proprietor was in the immediate area of the hazard and had the means and opportunity to easily see and remove it; or (2) the proprietor failed to exercise reasonable care in inspecting the premises. [Cit.]” Id.

Fuller admitted the mat was visible to his employees at the cashier’s desk. They were responsible not only for straightening it out when wrinkled, but also for activating the lights over the mat when it became dark.

There is also evidence of constructive knowledge under the reasonable inspection prong. To show the evidence precluded a finding of negligence, Fuller had to establish that he and his employees exercised reasonable care in inspecting the premises, such as by compliance with reasonable inspection procedures. Newell, supra, 222 Ga. App. at 886. But he testified that there was no regular inspection procedure other than employees generally inspecting the premises at shift changes every eight hours. Even these infrequent inspections followed no written checklist or guidelines, and there is no record kept of them. Fuller had no specific recollection of any inspection done on the day in question. Such evidence fails to require a conclusion of due care. See Newell, supra, 222 Ga. App. at 885-887 (2) (no records of inspections and no recollection of inspections that day); Burke v. Bi-Lo, 212 Ga. App. 115, 117 (441 SE2d 429) (1994) (no recollection of inspections on evening in question); Boss v. Food Giant, 193 Ga. App. 434, 435-436 (388 SE2d 37) (1989) (no recollection of any inspection on day in question).

Fuller argues that because no one had fallen previously, he could have no actual or constructive knowledge of the danger. Yet he testified that he had instructed his employees to smooth out mat wrinkles, which they had done on occasion. We rejected this argument in Brennan. “The fact that there had been no prior incidents or complaints concerning the lighting does not absolve appellees of liability. An occupier of premises is under a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.” (Citations and punctuation omitted.) Brennan, supra, 226 Ga. App. at 533 (1). A prior fall is not a necessary precursor to knowledge that a wrinkled mat poses a hazard.

The question as to Whatley’s knowledge is whether she knew of the mat’s wrinkled condition, not merely the lighting. Id. She was a newcomer, the entrance was dark, and the wrinkles were obscured. See id. (change in elevation obscured due to poor lighting); Sykes, supra, 226 Ga. App. at 805 (darkness and shadows obscured sidewalk construction); Allen v. Roscoe Weston Motels Ga., 220 Ga. App. 402, 403 (469 SE2d 492) (1996) (poor lighting obscured one-inch rise in pavement). Contrary to Fuller’s contention, Whatley’s general awareness of the ramp and mat does not mean she could see the wrinkles. One witness testified the wrinkles were visible only from a stooping position. See Hillard v. Fed. Paper Bd. Co., 218 Ga. App. 699, 700 (1) (463 SE2d 494) (1995) (hazard not visible from where plaintiff was standing). Cf. Newell, supra (tear in mat only visible if plaintiff stared at the mat). “An invitee is not required to look for defects continuously and without interruption always. [Cits.]” Anderson v. Turton Dev., 225 Ga. App. 270, 272 (1) (483 SE2d 597) (1997). What constitutes a reasonable lookout is a question of fact for the jury. Id.

Citing Hosp. Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500 (402 SE2d 103) (1991), and Crenshaw v. Hogan, 203 Ga. App. 104 (416 SE2d 147) (1992), Fuller counters that “where there is nothing to obstruct or interfere with one’s ability to see a static condition, the owner or occupier of the premises is justified in assuming that the visitor will see it and realize the risk involved.” But darkness interferes with one’s ability to see and distinguishes this type of case on this ground. Marlowe v. Cabe, 207 Ga. App. 764, 765-766 (429 SE2d 151) (1993). See Newell, supra, 222 Ga. App. at 885 (defect must be “readily discernible” (emphasis in original)).

Fuller also argues that Whatley failed to exercise ordinary care because she approached the ramp from the side or corner instead of directly. Pictures show that Fuller intended customers to approach from all angles.

Decided September 29, 1997.

King & Croft, Terrence L. Croft, Charlotte H. Beltrami, for appellant.

McClain & Merritt, M. David Merritt, William S. Sutton, for appellees.

The court erred in granting summary judgment to Fuller.

2. But NSI was properly awarded summary judgment. Whatley claims that NSI negligently placed the mat over a discontinuity in the pavement, negligently placed the mat in an area trafficked by vendors with carts (which caused the mat to wrinkle), and negligently failed to warn Fuller of the dangers associated with placement of the mat there.

There must be evidence that the failure to warn proximately caused the accident. Powell v. Harsco Corp., 209 Ga. App. 348, 349-350 (2) (433 SE2d 608) (1993). Fuller testified he and his employees were fully aware of the propensity of the mat to wrinkle because of vendors’ carts and other circumstances. A further warning to them would have been superfluous.

Nor did the placement of the mat on the discontinuity cause the accident. Because Whatley tripped on the edge of the mat as she ascended the ramp, the discontinuity at the end of the ramp had nothing to do with her fall.

Finally, NSI is not liable for the placement of the mat in an area trafficked by vendors with carts. Fuller directed NSI where to place it. Where an independent contractor or supplier properly executes the directions of the owner, only the owner, not the contractor or supplier, may be liable for injury to a third party resulting therefrom. See David Allen Co. v. Benton, 260 Ga. 557, 558 (398 SE2d 191) (1990); Russell v. Cynwid Investments, 142 Ga. App. 410, 411 (236 SE2d 147) (1977). Not applicable here are the exceptions: where the completed work is inherently dangerous, a nuisance per se, or so defective so as to be imminently dangerous. David Allen Co., supra.

Judgment affirmed in part and reversed in part.

Smith, J., concurs. McMurray, P. J., concurs fully in Division 1 and concurs in the judgment only in Division 2.