text:
    A00A0721.
    LOVELL v. ANDERSON.
    (530 SE2d 233)
   McMURRAY, Presiding Judge.

This dispute arose over a dirt road located on land in Cherokee County owned by Jeremiah Earle Field, who died on August 12, 1997. Field’s nephew, Earle Lovell, uses the dirt road to access his adjoining 3.66-acre tract of land as well as a 31-acre parcel he owns. The 3.66-acre tract is also accessible from Highway 20, while Lovell avers that the 31-acre tract is accessible only from the dirt road.

On April 29, 1989, Field gave Lovell the following written statement:

Earle Lovell has permit to go on any of my land, has the right to tell anyone without written permit to leave.
Jerry E. Field R.F.D 6.
Canton Ga.

After Field died, Wendell Anderson, Sr., the executor of Field’s estate, demanded that Lovell cease traversing the dirt road and abandon all use of the estate’s property. Lovell refused. Anderson, as executor, then filed an eight-count complaint against Lovell, alleging claims for injunctive relief, specific performance, trespass, private nuisance, conversion, and punitive damages. Anderson’s claims for damages derive from Lovell’s use of the property to grow and sell Christmas trees, among other things. Lovell counterclaimed for a declaratory judgment that he had been granted an easement to utilize the dirt road or a license which ripened into an easement.

The executor moved for partial summary judgment on the main claim as to liability and on Lovell’s counterclaim, arguing that Lovell’s license to traverse the dirt road was revoked upon Field’s death. In support of his motion, the executor submitted the affidavit of a title expert who averred that the land records of Cherokee County reflected that no easements had been granted to Lovell to use the dirt road. Lovell filed no response to the executor’s motion but argued at the hearing that the 1989 written statement constituted an express easement or a license which had ripened into an easement.

The trial court granted the executor’s motion, reserving the issue of damages for trial. Lovell appeals. Held:

1. We reject Lovell’s argument that questions of fact remain as to whether his license to traverse Field’s property became an easement running with the land.

Pursuant to OCGA § 44-9-4,

[a] parol license to use another’s land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such a case, it becomes an easement running with the land.

As our Supreme Court has explained,

[t]his Code section is based on the principle that a license becomes an agreement for a valuable consideration, and the licensee a purchaser for value, where the enjoyment of the license must necessarily be preceded by the expenditure of money. Miller v. Slater, 182 Ga. 552, 558 (186 SE 413) (1936); Woodruff v. Bowers, 165 Ga. 408 (140 SE 844) (1927).

Lovell deposed that he installed a gate upon the dirt road in 1986 or 1987. Lovell also testified that the road “always had a gate on it at one time or another.” His deposition further revealed that he has used the road to access both of his tracts of land since he acquired the properties in approximately 1970.

Two salient facts emerge from Lovell’s deposition: Lovell traversed the road for at least sixteen years before he put up the gate, and he installed the gate at least two years before Anderson gave him the written statement. “Thus, it is clear that it was not necessary for [Lovell] to expend any money preceding [his] use of the [road] .” Accordingly, the license never ripened into an easement and was revoked upon Field’s death.

Moreover, Lovell’s argument on appeal that the dirt road is his only avenue of ingress and egress to his 3.66-acre tract contradicts his deposition testimony that the tract is accessible from Highway 20. It is well established that facts asserted in appellate briefs which are not supported by the record will not be considered on appeal.

2. Lovell’s contention that fact issues remain concerning whether Lovell was granted an easement in gross is likewise without merit.

An easement in gross is defined as “a right to pass over land which is not given for the purpose of ingress or egress to and from other land. . . .” It is “a personal right and [one] not running with the land on the benefit side.” It may be created by express grant. “Since an easement is an interest in land, however, a grant of an easement should be drawn and executed with the same formalities as a deed to real estate. . . ,”

Decided February 29, 2000.

Robert M. Dyer, for appellant.

Moore, Ingram, Johnson & Steele, Robert D. Ingram, Susan S. Stuart, for appellee.

The agreement did not constitute a grant of an easement within OCGA § 44-9-1. “An express grant of an easement must contain language sufficient to designate with reasonable certainty the land over which it extends. It is generally sufficient to identify the whole tract of land owned by the grantor over which the easement passes.” (Citation and punctuation omitted.) Macon-Bibb County Indus. Auth. v. Central of Ga. R. Co., 266 Ga. 281, 283 (466 SE2d 855) (1996). . . . [T]he agreement was neither a deed nor in a form that could be recorded with the Clerk of the Superior Court on the deed records. . . . [I]t had no legal description to identify the property or easement. . . ,

So too, the writing in the case sub judice did not create an easement. Pretermitting whether it could be deemed a contract, the writing contained no legal description. At best, it was merely a revocable license.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       Title to Field’s property has vested in his executor, Wendell Anderson, Sr., pending resolution of litigation concerning Field’s will.

       The Supreme Court transferred the case to this Court, finding equitable relief was ancillary to the issue of whether Lovell had an easement. See Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328); Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208); Stutts v. Moore, 218 Ga. App. 624 (463 SE2d 30).

       (Emphasis in original.) McCorkle v. Morgan, 268 Ga. 730, 731 (492 SE2d 891).

       Lovell was deposed on November 2, 1998, when he was 49 years old. He testified that he had received title to his property at the age of 21.

        McCorkle v. Morgan, 268 Ga. at 731, supra.

       See Cook v. Pridgen, Stapler & Dunn, 45 Ga. 331.

       Counsel also conceded during the summary judgment hearing that such access exists.

        Trevino v. Flanders, 231 Ga. App. 782 (501 SE2d 13).

       (Emphasis supplied.) Pindar, Ga. Real Estate Law & Procedure, § 8-4 (5th ed. 1998).

        Barton v. Gammell, 143 Ga. App. 291, 293 (2) (b) (238 SE2d 445).

       25 AmJur2d, Easements & Licenses, § 18.

        Central of Ga. R. Co. v. DEC Assoc., 231 Ga. App. 787, 790-791 (1) (b) (501 SE2d 6).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1654.
    MUHAMMAD v. THE STATE.
    (529 SE2d 418)
   Miller, Judge.

A jury found Yahya Muhammad guilty of burglary, and the court sentenced him to the maximum of 20 years without parole pursuant to the sentencing provisions for recidivist offenders under OCGA § 17-10-7 (c). On direct appeal, this Court affirmed Muhammad’s conviction in an unpublished opinion, Muhammad v. State, 217 Ga. App. XXXI (1995), while the Sentence Review Panel affirmed the recidivist sentence imposed by the trial court. This instant appeal arises from the denial of Muhammad’s subsequent “Motion to Correct a Vacated Case for Resentencing.” Although a trial court cannot modify a sentence after the term in which it was rendered, the court may nevertheless resentence a defendant whose original sentence was illegal, at any time. Accordingly, Muhammad’s appeal is properly before us.

1. In felony cases where the jury returns a guilty verdict, OCGA § 17-10-2 (a) requires the trial court to conduct a presentence hearing to determine the punishment to be imposed. The record reflects that such a hearing was held in this case, where the court heard evidence in extenuation, mitigation, and aggravation of punishment, including Muhammad’s prior convictions. Thus, Muhammad’s fourth enumeration is without merit.

2. Muhammad contends that the court failed to consider probating or suspending a portion of his sentence. Muhammad correctly argues and Banks v. State clearly explains that although OCGA § 17-10-7 (c) prohibits parole, that Code section does not take away the discretion given to the trial court by OCGA § 17-10-7 (a) to probate or suspend part of a sentence.

After the verdict was rendered and prior to the presentencing hearing, the colloquy between the court and counsel was as follows:

Co-defendant’s Counsel: Judge, we want to request a presentence investigation with the Court’s permission.
Defendant’s Counsel: And I would make the same request, Your Honor.
Prosecuting Counsel: Your Honor, both Defendants have received recidivist notice and I believe that would basically be pointless in this case inasmuch as the Court has to sentence them to the maximum amount provided by law. However, if they have a right to have one there is I guess nothing we can do about that.
Court: They have one if I would consider probation, but under this notice I probably can’t, but I’ll resolve that. . . .

Decided February 9, 2000 —

Reconsideration denied March 1, 2000

Yahya B. Muhammad, pro se.

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

But the record reflects that during the presentencing hearing, the court discussed Muhammad’s prior convictions with counsel and asked, “[l]et me see that code, please,” which defendant’s counsel explained was OCGA § 17-10-7. And in sentencing Muhammad, the court stated:

the State having given [Muhammad] due notice of his recidivist status and proved such status under 17-10-7 (b), and the Court having considered the information given to the Court regarding his sentencing and what the sentence should be, I impose a sentence of twenty years.

Moreover, on the denial of Muhammad’s motion to vacate his sentence, the court reviewed the motion and the record in its entirety and found no basis on which to vacate the sentence.

The record shows that the court reviewed OCGA § 17-10-7 during the presentencing hearing and reviewed Muhammad’s sentence following his motion to vacate. And in the absence of any affirmative showing to the contrary, the court is presumed to have exercised its discretion in imposing sentence. Muhammad has no cause for complaint that the court, in the exercise of its discretion, declined to probate or suspend a portion of the recidivist sentence.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Mullins v. State, 134 Ga. App. 243 (1) (214 SE2d 1) (1975).

        Howard v. State, 234 Ga. App. 260, 261 (1) (506 SE2d 648) (1998).

       225 Ga. App. 754 (484 SE2d 786) (1997).

       OCGA § 17-10-7 (c) states that any person who, after being convicted of three felonies, is convicted of a fourth felony shall serve the maximum time provided in the sentence of the judge and shall not be eligible for parole until the maximum sentence has been served.

       OCGA § 17-10-7 (a) provides that any person who, after being convicted of a felony, is convicted for another felony shall be sentenced to the longest period of time prescribed for the punishment but that the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

        Banks, supra, 225 Ga. App. at 757 (5); State v. Carter, 175 Ga. App. 38, 39-41 (332 SE2d 349) (1985); accord Bradshaw v. State, 237 Ga. App. 627, 630 (2) (516 SE2d 333) (1999).

        Hunter v. State, 237 Ga. App. 803, 806 (3) (517 SE2d 534) (1999).

       See id.


author: Andrews, Presiding Judge.

text:
    A99A1770.
    HYATT CORPORATION v. COOK.
    (529 SE2d 633)
   Andrews, Presiding Judge.

Hyatt Corporation appeals the denial of its motion for summary judgment in Cook’s suit alleging a number of tort claims arising from Cook’s arrest by Officer Thran for disorderly conduct. The arrest occurred in the Savannah Hyatt during the 1993 New Year’s eve festivities for which Officer Thran had been retained by Hyatt for security.

The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). Further, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

Clark v. Cauthen, 239 Ga. App. 226, 227 (1) (520 SE2d 477) (1999).

Although the evidence in many respects was conflicting, the crucial facts are without material dispute. Viewed in favor of Cook, the evidence showed that he, his wife, and Mr. and Mrs. Froelich had purchased New Year’s eve packages at the Savannah Hyatt. The packages included a room for the evening, a dinner buffet, live bands, and midnight celebrations at the hotel. Additionally, guests purchased drink tickets to be used during the evening. Cook and Mr. Froelich had met and become friends while both were career Army noncommissioned officers. Cook was off duty during New Year’s, while Froelich, retired, was a private investigator in Savannah. Cook had received military police training during his service.

Officer Thran had been with the Savannah police since 1988 and was also a former military policeman. He was working an off-duty job during this holiday, as he had done every New Year’s eve since 1989. While working the Hyatt job, Thran testified that it would be reasonably anticipated that he might have to use his law enforcement powers and that he wore his uniform while working. Thran came on duty at the Hyatt at noon on New Year’s eve and was to work until closing New Year’s day at 3:00 a.m. He was to be paid $15 per hour by Hyatt for these services.

After the Cooks and Froelichs had dinner, listened to the bands, and watched the balloon drop in the lobby, they went to MD’s, the lounge in the atrium of the Hyatt. Mr. Froelich had several unredeemed drink tickets which he wanted to use. Cook acknowledged consuming approximately six beers and two mixed drinks during the evening. Mr. Froelich at that point, according to Mrs. Cook, was “feeling no pain.” The group sat at a table near the window, farthest from the entrance. When the bartender would not redeem Froelich’s tickets, Froelich called her a b — h and returned to the group’s table. The bartender approached the table and told them to leave. At that point, around 12:30 a.m., a hotel employee, apparently the manager, announced that the bar was closing.

The manager then approached Officer Thran in the lobby and advised him that there was a problem in the bar, and Thran proceeded to the bar. He spoke to the bartender who told him that no one was paying attention to her direction to leave and that someone had been nasty to her. Thran then began directing the crowd to leave, and people began to go. As the Cooks were following the Froelichs out of the bar, Thran placed his hand on Cook’s back and told them to get going and that it was time to go. Although Cook did not hear the statement, he did receive a push from behind from the officer. Cook told Thran, “Don’t touch me.” A few steps later, Thran took Cook’s arm, attempting to guide him from the bar. At that point, Cook jerked his arm and again told Thran not to touch him.

Officer Thran described the arm movement as looking “like an aggressive move to me,” and as being “back towards me.” Thran believed that if he did not take action, Cook “would have been acting violent.” At that point, Thran grabbed Cook by the neck, took him to the ground, and handcuffed him. Both Mr. and Mrs. Cook deposed that they heard Thran say “[y]ou’re going down” immediately before grabbing Cook. Other officers helped escort Cook outside the hotel while a police van was called to pick him up. The decision was made, either due to the anticipated long delay in the van’s arrival because of New Year’s eve activities (Officer Thran) or due to the intervention of another hotel guest (the Cooks), to issue Cook a subpoena for his court appearance and allow him to remain at the hotel that evening. Thran left his shift at the Hyatt early in order to fill out an arrest report and a use-of-force report. As he stated, “it’s our job, I mean, as a police officer, you have to file reports, and so I had no choice in the matter.”

The criminal case was set three times. The first time, Cook asked for an opportunity to get counsel; the second time, the officer was unable to appear; and the third time, the matter was dismissed because Thran did not receive a subpoena for that appearance.

The question arises, was [Thran], the policeman, the agent of the city exclusively; or was he the agent of the company, with super-added police powers; or was he acting in a dual capacity? If a man is a policeman, and he has no duties to discharge except police duties proper for the public, — if he is acting as a public policeman and nothing else, — the mere fact that the company pays for his services does not make him the agent of the . . . company. The company may become liable for his torts by directing them, even though he be a public officer. . . . He may occupy a dual position of exercising functions for the public and the company; in which case, where he is in the discharge of duties for the company, and the tort is committed under such circumstances as not to justify it, the company is liable. But[,] if he commits a tort merely as a police officer, the company would not be liable, unless it was done at the direction of the company. The mere fact that a . . . company pays for the services of a certain police officer, who does nothing but perform the duties of a police officer proper, does not make the company liable.

Decided February 11, 2000 —

Reconsideration denied March 1, 2000

Ladson & Suthers, M. Brice Ladson, Jeffrey M. Rutledge, Chris topher J. Thompson, for appellant.

Pounds v. Central of Ga. R. Co., 142 Ga. 415, 416-418 (83 SE 96) (1914).

Here, all that Thran had been told by the hotel employees, the manager and the bartender was that there was trouble in the bar because the patrons would not leave when asked. The bartender then asked him to have the patrons leave the lounge. There is no evidence that there had been any direction given to Thran as to how he should empty the bar or that the Hyatt had given him instructions regarding his security duties in general.

This case is factually similar to and controlled by Wilson v. Waffle House, 235 Ga. App. 539 (510 SE2d 105) (1998) and Rembert v. Arthur Schneider Sales, 208 Ga. App. 903 (432 SE2d 809) (1993). In both cases, off-duty officers in uniform had been retained by businesses, a restaurant and a shoe store, to maintain security. In Rembert, the store owner had asked an irate customer to leave, and the customer was told to do so by the officer. Instead, the customer headed back into the center of the store, and a scuffle ensued between her and the officers. As a result, Rembert was handcuffed and taken away in a patrol car. In Wilson, the officer saw a customer go behind the counter near the cash register and directed the man to get away from the counter. An argument ensued, and the officer took Wilson’s arm to escort him from the restaurant. A struggle ensued outside, resulting in Wilson’s arrest.

In both cases, summary judgment for the two companies employing the officers was appropriate, as it is here.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

Douglas G. Andrews, for appellee.

       The trial court granted a certificate of immediate review, and this Court granted Hyatt’s application for appeal.


text:
    A99A1935.
    In the Interest of B. G. et al., children.
    (530 SE2d 473)
    Decided February 3, 2000 —
    Reconsideration denied March 1,2000.
   Andrews, Presiding Judge.

This is the fourth appearance of this case before this Court. In the last appeal, we reversed the juvenile court’s order finding that the children were deprived and remanded the case for transfer proceedings to Banks County. In the Interest of B. G., 238 Ga. App. 227, 229 (518 SE2d 451) (1999). In that case, we found venue was improper under OCGA § 15-11-15 (a) because the petitions alleging deprivation were filed in Gwinnett County and the children lived in Banks County. Id.

While the appeal of the deprivation order was still pending, the Gwinnett County Juvenile Court held a hearing on the petition to terminate parental rights and later granted that petition.

As stated above, this Court has already determined that venue was improper in Gwinnett County and has remanded the case for transfer to Banks County. Therefore, that holding is the law of the case, and venue was also improper in the termination proceeding in Gwinnett County. Moreover, the Department of Family & Children Services agrees that the prior reversal rendered the termination proceeding a nullity. Accordingly, the juvenile court’s order terminating the parent’s rights must be reversed, and the case remanded for transfer proceedings to Banks County. In the Interest of B. G., 238 Ga. App. at 229.

Judgment reversed and remanded.

Ruffin and Ellington, JJ, concur.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Cheeley & King, Joseph E. Cheeley III, for appellee.

       See In the Interest of B. G., 225 Ga. App. 492 (484 SE2d 293) (1997); In the Interest of B. G., 231 Ga. App. 39 (497 SE2d 572) (1998); In the Interest of B. G., 238 Ga. App. 227 (518 SE2d 451) (1999).

       OCGA § 9-11-60 (h) provides that the law of the case rule is abolished, provided, however, that any ruling by the Supreme Court or Court of Appeals in a case shall be binding on all subsequent proceedings in that case in the lower court, the Supreme Court or the Court of Appeals. Macon-Bibb County Hosp. Auth. v. Reece, 236 Ga. App. 669, 672 (513 SE2d 243) (1999).


text:
    A99A2275.
    JORDAN v. THE STATE.
    (528 SE2d 858)
   Miller, Judge.

Doretha Jordan, also known as Doretha Johnson or Barbara Carol Hall, was found guilty of thirty-seven counts of forgery in the first degree, one count of theft by taking, and five counts of financial transaction card fraud. The trial court ultimately granted defendant’s motion for directed verdict with respect to six forgery counts. Defendant appeals from the judgment of conviction and sentence entered on the jury’s verdicts. In two related enumerations of error, she challenges the sufficiency of the evidence to convict. Viewed in the light most favorable to the jury’s verdicts, the evidence adduced at trial revealed the following:

Patricia P. Parlato hired defendant under the name Doretha Johnson to be the office manager for Parlato’s pediatric speech therapy practice in DeKalb County. Defendant’s responsibilities included payroll, client billing, payment of bills, purchase of supplies, and banking. Defendant’s authorized salary was never more than $368 for a 32-hour week. For the last ten years, Parlato had a business checking account with Tucker Federal Savings & Loan, whose main branch is in DeKalb County, using exclusively the Doraville branch in DeKalb County, a mile from her business. Parlato was the only authorized check signer on this account. During the five months that defendant was office manager, Parlato continued her earlier practice of signing up to ten blank business checks at a time, and defendant would draw them to pay for business expenses, as needed. Defendant persuaded Parlato to rent a post office box in Doraville, for which defendant held the only key.

Parlato, who authorized defendant to make out a check only if she recorded it in the ledger, identified the authorized payroll checks to defendant from carbon copies in the check register. She further identified unauthorized payees and purchases made with presigned checks, drawn by defendant in her handwriting or else typed, and for which there was no corresponding ledger entry. For example, on September 19, 1997, defendant drew a check to herself for $3,500 and deposited this in her personal checking account. On September 26, 1997, the same day she drew her regular salary of $368, defendant also made out another check to herself in the amount of $2,000, which was deposited in defendant’s personal checking account. Hendriette Thomas, defendant’s self-described cousin, was the payee on checks for $2,100, $2,500, and $2,750. Art Ewing, defendant’s fiancé, was the payee on a check for $525, although Parlato had paid him $100 in cash for the one time Ewing performed chores for her.

Parlato has never had a business credit card, and she never authorized defendant to apply for a credit card in the name of Parlato’s business. But over the 1997 Christmas holidays, while defendant was in Texas visiting her mother, Parlato received bills from American Express, Office Max, and First USA for accounts in the name of her business. Also, Tucker Federal returned three deposited checks, purportedly drawn by Hendriette Cotton to the order of Parlato’s business, with the notation “ACCOUNT CLOSED.” When Parlato telephoned defendant in Texas to demand an explanation, defendant “said, well, I [defendant] must have made a mistake. That’s my cousin.” Defendant begged Parlato not to cancel the credit card, told her that she would repay everything on the card, and apologized for being out of control.

Parlato immediately contacted the various creditors in order to cancel the accounts. She also closed her business checking account, but by then, defendant had issued unauthorized checks totaling more than $50,000 from the account. Ron Fosia, assistant vice president and custodian of records for Tucker Federal, identified State’s Exhibits 1 through 37 and 133 as checks drawn on Parlato’s business accounts that were negotiated and honored by the bank. Three were cashed at the Doraville branch of Tucker Federal in DeKalb County. At the end of September 1997, Parlato’s business checking account had a balance of $67,000. At the end of November, the balance was $43,500, but by the end of December, the balance was only $16,274.

Parlato identified defendant’s handwriting on the credit card applications, including what purports to be Parlato’s signature. Defendant typically requested a second card in the name of Doretha Johnson. No charges were incurred by Parlato, who typically pays cash for her purchases.

1. (a) Regarding the general grounds, a person commits the offense of forgery in the first degree when, “with the intent to defraud he knowingly makes ... or possesses any writing ... in such manner that the writing as made . . . purports to have been made ... by authority of one who did not give such authority and utters or delivers such writing.” Parlato identified as unauthorized certain checks defendant made out to herself, her fiancé, her cousin, and her mortgagee. Each check left defendant’s possession to be negotiated and honored by Parlato’s bank. This is sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdicts that defendant is guilty, beyond a reasonable doubt, of forgery in the first degree by possessing, uttering, and delivering the unauthorized checks with the intent to defraud, as alleged in the indictment. At the very least, she is guilty as a party to the crime of forgery in the first degree under OCGA § 16-2-20 (a).

(b) Proof that defendant cashed or deposited into her own account more than $500 worth of unauthorized checks is sufficient to support the jury’s verdict that defendant committed theft by taking as alleged in Count 38 of the indictment, in violation of OCGA § 16-8-2.

(c) Proof that defendant Jordan used the alias Doretha Johnson on the business account credit card applications is sufficient to authorize the jury’s verdicts that she committed financial transaction card fraud as alleged in Counts 39 through 43, in violation of OCGA § 16-9-33 (d).

2. Defendant’s motion for direct verdicts of acquittal on all counts specifically challenged the evidence of venue. The denial of that motion is enumerated as error.

Generally, all criminal cases shall be tried in the county where the crime was committed. Venue is a jurisdictional fact which must be proved by the prosecution beyond a reasonable doubt. Circumstantial as well as direct evidence may establish venue.

Defendant lived in DeKalb County. Parlato’s therapy practice is in DeKalb County. The post office box was in DeKalb County. If defendant fraudulently drew unauthorized checks at some place other than her place of work, the two most likely locations were her home or the post office, all in DeKalb County. It is entirely reasonable that evidence that a forged instrument was forged in a given county would, in the absence of evidence to the contrary, authorize the inference by the jury that the uttering was committed in that same county. The evidence that defendant committed forgery in DeKalb County, although circumstantial, is uncontradicted and is sufficient to support the verdict. Three of the unauthorized business checks were cashed or negotiated at the Doraville branch of Tucker Federal, in DeKalb County. This is sufficient proof of venue for theft by taking under OCGA § 16-8-11. The unauthorized credit cards were issued to Parlato’s DeKalb County business, authorizing the rational inference that the fraudulent application process was commenced in DeKalb County, as required by OCGA § 16-9-33 (g). The trial court correctly denied defendant’s motion for directed verdicts on the ground that venue was not proven for any offense.

Decided January 27, 2000 —

Reconsideration dismissed March 1,2000.

Jerome C. McKee, for appellant.

Doretha Jordan, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Benjamin M. First, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       OCGA § 16-9-1 (a).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Crowder v. State, 218 Ga. App. 630, 632 (2), (3) (462 SE2d 754) (1995).

        Jenkins v. State, 217 Ga. App. 655, 656 (2) (458 SE2d 497) (1995).

       See Miller v. State, 233 Ga. App. 814, 816 (2) (506 SE2d 136) (1998).

       See Goswick v. State, 201 Ga. App. 799, 800 (412 SE2d 293) (1991).

       Ga. Const. of 1983, Art. VI, Sec. II, Par. VI.

        Graves v. State, 269 Ga. 772, 773 (1) (504 SE2d 679) (1998).

        Loftin v. State, 230 Ga. 92, 94 (195 SE2d 402) (1973).

        Howard v. State, 181 Ga. App. 187, 189-190 (351 SE2d 550) (1986) (whole court), citing Goldstein v. State, 94 Ga. App. 437 (3) (95 SE2d 47) (1956).

        Womble v. State, 107 Ga. 666, 669 (3), (4) (33 SE 630) (1899).


text:
    A99A2440.
    A99A2441.
    HAMBRICK v. THE STATE. WILLIS v. THE STATE.
    (530 SE2d 471)
   Miller, Judge.

A jury convicted Sherman Hambrick and Eric Willis of felony obstruction. Hambrick was convicted on one count and Willis on two counts. Following the denial of the appellants’ motions for new trial, they appeal, citing as error the trial court’s jury instruction on the offense of obstruction, and the court’s response to a question from the jury during deliberation.

Evidence showed that a fight broke out at Ware State Prison, after which prison guards attempted to regain order. Hambrick and Willis both admitted that they refused to be handcuffed, and several guards testified that the men threatened them. Two guards testified that Willis hit them in the face, and one testified that Hambrick pushed him against a fence.

1. The court instructed the jury that offering to do or doing violence to a correctional officer discharging his duties constitutes obstruction of an officer.* Hambrick and Willis argue that the instruction allowed the jury to convict based on offering to do violence (threats and refusal to be handcuffed) even though the indictment charged them only with doing violence (striking and pushing officers).

Decided January 11, 2000 —

Reconsideration denied March 1,2000.

Little & Joyner, Charles D. Joyner, for appellant (case no. A99A2440).

McGee & McGee, James B. McGee III, for appellant (case no. A99A2441).

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

Count 1 of the indictment stated that Willis committed obstruction “by offering and doing violence” to an officer “by hitting him on his face.” Although the court charged both means of committing obstruction under the statute, any error in doing so is harmless due the court’s curative instruction as explained in Division 2.

2. During deliberation, the jury inquired whether “the obstruction-of-justice charge for Mr. Willis and Mr. Hambrick consistís] of only the hitting of the officers, or does it include the hitting offenses along with the failure to cuff up and the threats?” Hambrick and Willis contend that the trial court erred in instructing the jury on the crime of obstruction in answer to the question. But the court also instructed that “[t]he charge that you ask about is contained in the indictment, so all you have to do is read the indictment for the language of the charge.” The court then reread Count 1 of the indictment and farther charged the jury to carefully read each of the charges. Finally, the court again instructed the jury on OCGA § 16-10-24 (b).

The court clearly limited the jury’s consideration to the offenses alleged in the indictment. As read by the court, Count 1 of the indictment included the language of OCGA § 16-10-24 (b), which referenced both methods of committing the offense. Thus, the court’s response did not suggest that the jury could convict for obstruction in any way other, than by finding that they committed the offenses as specified in the indictment. The court did not err in its response to the jury’s question.

Judgments affirmed.

Pope, P. J., and Smith, J., concur.

       See OCGA § 16-10-24 (b).


author: Ruffin, Judge.

text:
    A98A1828.
    BOLDEN v. THE STATE.
    (530 SE2d 254)
    Decided March 1, 2000.

      William C. Head, for appellant.

      Joseph J. Drolet, Solicitor, for appellee.
   Ruffin, Judge.

In Bolden v. State, the Supreme Court reversed the judgment of this Court in which we affirmed Bolden’s conviction for driving under the influence. Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Pope, P. J., and Ellington, J., concur.

       272 Ga. 1 (525 SE2d 690) (2000).

        Bolden v. State, 237 Ga. App. 195 (514 SE2d 32) (1999).


text:
    A98A2218.
    EDWARDS et al. v. DEPARTMENT OF CHILDREN & YOUTH SERVICES.
    (530 SE2d 254)
    Decided March 1, 2000.

      Watkins, Lourie & Roll, Joseph W. Watkins, Lance D. Lourie, Langdale, Vallotton, Linahan, Threlkeld & Wetherington, William P. Langdale, Jr., William P. Langdale III, for appellants.

      Thurhert E. Baker, Attorney General, Patricia Guilday, Assistant Attorney General, Capers, Dunbar, Sanders & Bruckner, Paul H. Dunbar III, Ziva P. Bruckner, for appellee.
   Andrews, Presiding Judge.

In Edwards v. Dept. of Children & Youth Svcs., 271 Ga. 890 (525 SE2d 83) (2000), the Supreme Court reversed this Court’s opinion in Edwards v. Dept. of Children & Youth Svcs., 236 Ga. App. 696 (512 SE2d 339) (1999). Therefore, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and remand the case to the trial court for proceedings not inconsistent with the opinion of the Supreme Court.

Judgment reversed and case remanded.

Pope, P. J., and Ruffin, J., concur.


author: Phipps, Judge.

text:
    A99A1775.
    SCOTT v. THE STATE.
    (530 SE2d 257)
   Phipps, Judge.

A jury found Jami Scott and his co-defendant, Jacob Jordan, guilty of burglary, two counts of aggravated assault, and possession of a firearm during the commission of a crime. Scott appeals, challenging the sufficiency of the evidence and the trial court’s denial of his motion for a new trial on the bases of ineffective assistance of counsel and prosecutorial misconduct. Because we find no reversible error, we affirm.

On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. We determine whether the evidence is sufficient under the standard of Jackson v. Virginia and do not weigh the evidence or determine witness credibility. Conflicts in the evidence are for the jury to resolve.

At trial, the State presented the testimony of B. H., who testified that on March 14, 1997, he heard Scott and Jordan discussing plans to rob his cousin, Henry Patterson. Scott and Jordan asked B. H. to join them. He agreed, although he later claimed he did so only because he was afraid that they would harm him if he refused. B. H. immediately went to Patterson’s home to warn him of the planned robbery. But when he arrived, Patterson was on the telephone, and B. H. was not able to warn him.

Patterson testified that on that evening B. H. arrived at approximately 9:00 p.m. and, within moments, two men wearing black clothing and ski masks pushed open his front door. Armed with a baseball bat and a gun, the men ordered B. H. to get on the floor and demanded money from Patterson. When Patterson responded that he had no money, one assailant hit him with the baseball bat, and the other shot him in the chest. Then the two men fled.

Patterson testified that later that night he told an investigator that when the assailants demanded money from him, he recognized Scott’s voice. And he told the investigator that it was Scott who hit him with the baseball bat.

Scott’s ex-girlfriend testified that shortly after 9:00 p.m. that evening, Scott, wearing black clothing, came to her home and asked her to tell any inquiring police officers that he had been at her house all day because “something had happened cross town.” She testified that Scott had not been at her house at all that day before his evening visit.

1. Scott challenges the sufficiency of the evidence, specifically contending it is based on the uncorroborated testimony of B. H., an accomplice. He points out that on the night of the incident, B. H. gave a statement to the investigator, identifying Scott and Jordan as Patterson’s assailants. Scott claims that Patterson failed to identify him until after B. H. supplied his name to the investigator.

But the rule that a felony conviction may not be based upon the uncorroborated testimony of an accomplice applies only when the accomplice is the sole witness upon whose testimony the State relies. Here, the State introduced other evidence, including the victim’s testimony of his pretrial identification of Scott and the ex-girlfriend’s testimony of Scott’s attempt to fabricate an alibi. The credibility of Patterson’s identification of Scott’s voice is bolstered by Scott’s testimony that he met Patterson in 1996 and had talked to him on several occasions before March 14, 1997. Such evidence, independently of the accomplice’s testimony, directly connects Scott to the crimes.

The evidence is sufficient to support Scott’s conviction for burglary, two counts of aggravated assault (with a baseball bat and with a gun), and possession of a firearm during the commission of a crime.

2. Scott contends that the trial court erred in finding that his trial counsel rendered effective assistance. To establish ineffectiveness, an appellant must show that (1) counsel’s performance was deficient and (2) the deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency. We need not address both prongs of this test if the showing on one prong is insufficient, nor must we address them in any particular order. We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard.

(a) Scott complains that trial counsel was ineffective by failing to timely object to the admission of a document, labeled Exhibit 10, on the basis that the State had not previously provided it to the defense. The prosecuting attorney asked B. H. to identify the document. B. H. testified that Scott had written the document and that Scott’s sister brought the document to him with instructions for him to copy the document by hand, sign it before a notary public, and take the notarized copy to Scott’s lawyer with an explanation that Scott was not involved in the incident. Instead of following those instructions, B. H. gave the document to his mother who gave it to someone “up here at the courthouse.” B. H. testified that the document did not depict what actually happened on March 14, 1997. The State sought to introduce the document to show that Scott had attempted to influence B. H.’s testimony. When the prosecuting attorney tendered Exhibit 10 into evidence, Scott’s counsel raised a hearsay objection, which the trial court overruled. B. H. read the document to the jury:

I, [B. H.], submit this statement. . . . On March the 14th 1997,1 left Jami Scott... [to go] to my cousin’s house. . . . When I got to my cousin’s house, he let me in, and I sat down on the sofa because he was talking on the phone. Then all of a sudden these two guys came into the house with ski masks on and told us to get down on the floor. So I laid down on the floor while my cousin began to struggle with the guy with the gun. I don’t know how Jami Scott’s name came up in all of this, but I know that he couldn’t have been one of the guys who came into my cousin’s house. . . . I’m giving this statement on my own free will, and I will testify that everything I just said in this statement is the truth. Jami Scott was not one of the guys.

Both Scott’s and Jordan’s attorneys cross-examined B. H., but neither questioned him about Exhibit 10. At the conclusion of B. H.’s testimony and outside the presence of the jury, Scott’s counsel moved for a mistrial, or alternatively for a continuance, arguing that the prosecuting attorney did not provide Exhibit 10 in discovery. The prosecuting attorney responded that the document had not been produced because it had been in the investigator’s file until the morning of trial. After hearing testimony from the investigator, B. H., and Scott’s sister, the trial court noted that the motion was untimely, denied the motion for mistrial, then proceeded with the trial.

Scott maintains that his trial counsel’s failure to timely object to the admission of Exhibit 10 on the ground that the State had not previously produced the document rendered his representation ineffective. Even assuming that trial counsel’s performance was deficient, Scott has failed to show a reasonable probability that the outcome of his trial would have been any different but for the alleged deficiency in view of the totality of other incriminating testimony provided by the State’s witnesses. The trial court’s ruling was not clearly erroneous.

Decided March 1, 2000.

Ellis R. Garnett, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

(b) Scott complains that trial counsel was ineffective by failing to advise the trial court of improper contact between a juror and the victim. He claims that during the trial he reported to his lawyer that Patterson conversed with a juror but his lawyer did nothing.

At the hearing on the motion for new trial, Scott’s sister testified that she saw Patterson and a juror in a “friendly conversation,” but testified that the only words she heard were the juror’s statement to Patterson, “I’ll talk to you later.” Scott produced no other evidence concerning the conversation. This statement, without more, fails the prejudice prong of the Strickland test. Because Patterson failed to show that the allegedly improper communication prejudiced him, the trial court did not clearly err in finding Scott received effective assistance of counsel.

3. Scott claims that the admission of Exhibit 10 resulted from prosecutorial misconduct and argues that the trial court erroneously denied his motion for new trial. Scott has not shown, and the transcript does not reveal, that he made a timely objection on that basis at trial. Consequently, this allegation of error is not preserved for our review. The contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.*

Moreover, Scott has shown no prosecutorial misconduct. At the hearing on Scott’s motion for mistrial, the investigator stated that he did not notify the prosecuting attorney of the existence of the document until the morning of trial. There is nothing in the record indicating otherwise.

Judgment affirmed.

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

        Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Patterson, supra, 225 Ga. App. 515.

       Id.

       OCGA § 24-4-8; Telfair v. State, 234 Ga. App. 444, 445 (507 SE2d 195) (1998).

        Jackson, supra, 443 U. S. 307.

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Etheridge v. State, 228 Ga. App. 788, 789 (2) (492 SE2d 755) (1997).

        Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991).

        Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).

        Kollman v. State, 231 Ga. App. 630 (1) (498 SE2d 745) (1998).

        Ledford v. State, 264 Ga. 60, 67 (18) (a) (439 SE2d 917) (1994); see Kapua v. State, 228 Ga. App. 193, 196 (2) (491 SE2d 387) (1997).


author: Smith, Judge.

text:
    A99A1994.
    MOUNTAIN BOUND, INC. et al. v. ALLIANT FOODSERVICE, INC.
    (530 SE2d 272)
   Smith, Judge.

Alliant Foodservice, Inc. sued Mountain Bound, Inc. d/b/a River Walk Grill, Paul B. Moye, and Fred R. Johnson for the value of goods allegedly provided on an open account. After considering the pleadings, briefs, and the applicable law and finding no genuine issues of disputed material fact, the trial court granted summary judgment to Alliant. Because Mountain Bound’s evidence raised a disputed issue of material fact as to whether the goods for which Alliant billed were actually delivered, we reverse. See Huntington v. Fishman, 212 Ga. App. 27, 30 (441 SE2d 444) (1994) (summary judgment foreclosed when material factual issue in dispute).

Mountain Bound was organized for the sole purpose of operating River Walk Grill, a restaurant. In January 1997, Mountain Bound submitted an application for credit to Alliant, a food products supplier. Part of this credit application included a personal guaranty purportedly signed by Moye and Johnson. After several months of activity, River Walk Grill ceased operation in October 1997. Alliant filed this suit in April 1998 to recover the balance allegedly remaining on the account.

Moye answered the complaint separately from the other defendants by sending a letter directed to Alliant’s counsel, which Moye requested counsel to file with the court. In this unverified response, Moye asserted that Mountain Bound and Johnson were the ones indebted to Alliant. He claimed that although his name appeared on the credit application and personal guaranty, he was not an actual guarantor of the debt.

Mountain Bound and Johnson filed an answer that was verified by Johnson, individually, and by Homer Mathis, as corporate president of Mountain Bound. The answer denied any indebtedness to Alliant. Johnson, on deposition, explained that as an investor and the corporate secretary, he had not participated in the day-to-day operation of the restaurant. Johnson testified that Moye, as the president or chief executive officer, had been responsible for managing the business. Speaking only for himself and not on behalf of the corporation, Johnson added, “I don’t know whether there is a debt owed or not.”

In opposition to Alliant’s motion for summary judgment, Mountain Bound and Johnson submitted the affidavit of Mathis. Mathis, who testified that he made the affidavit based upon his personal knowledge, represented that “I am the President of Mountain Bound, Inc.” According to Mathis’s testimony, he had reviewed the business records of Mountain Bound as well as the records submitted by Alliant that Alliant claimed constituted proof of the delivery of goods. Mathis testified that “[t]he goods were not delivered to or accepted by Mountain Bound, Inc.” Mathis further testified that Mountain Bound did not owe any amount to Alliant.

In finding no material issues of disputed fact, the trial court implicitly ignored the affidavit of Mathis and yet considered the unverified answer of Moye, which stated that Mountain Bound and Johnson were indebted to Alliant in the amount of $22,252.32. Mountain Bound and Johnson appeal the judgment entered against them. Moye is not a party to their appeal.

1. Mountain Bound and Johnson contend that the trial court erred in considering Johnson’s deposition because the original sealed deposition had not been filed with the court prior to the court’s consideration of that testimony.

In granting summary judgment, the trial court considered a copy of this deposition that was attached to Alliant’s motion. Even assuming that the original sealed deposition had not yet been filed, the trial court could properly consider this evidence. Anderson v. Hendrix, 175 Ga. App. 720, 721 (1) (334 SE2d 697) (1985); see OCGA § 9-11-29.1 (a) (5); Gen. Motors Corp. v. Walker, 244 Ga. 191 (259 SE2d 449) (1979). In any event, the failure to assert this issue and elicit a ruling by the trial court resulted in the waiver of this objection. Glisson v. Morton, 203 Ga. App. 77, 78 (2) (416 SE2d 134) (1992); see Carter v. Myers, 204 Ga. App. 498, 500 (1) (419 SE2d 747) (1992).

2. Mountain Bound and Johnson assert that the trial court improperly considered a defendant’s unverified response to Alliant’s complaint.

With certain statutory exceptions, a party may avail himself of admissions made in the pleadings. OCGA § 24-3-30; Greene v. Gulf Oil Corp., 119 Ga. App. 87, 89-90 (2) (166 SE2d 626) (1969). An admission against interest made by one defendant as to matters of fact may be binding upon other defendants when their interests are joint but not when their interests are adverse. Batchelor v. State Farm &c. Ins. Co., 240 Ga. App. 366, 367 (526 SE2d 68) (1999). An admission of one party does not necessarily bind other parties unless and until a joint interest is proven by other independent evidence. Kirk v. Barnes, 147 Ga. App. 423-424 (1) (249 SE2d 140) (1978); see OCGA § 24-3-31 (2). Moreover, this rule as to admissions in judicio does not apply to opinions or legal conclusions, but only to statements of fact. Aycock v. Calk, 228 Ga. App. 172, 173-174 (491 SE2d 383) (1997); see Sommerfield v. Blue Cross &c., 235 Ga. App. 375, 377 (2) (509 SE2d 100) (1998); Gunter v. Hamilton Bank &c., 201 Ga. App. 379, 380 (411 SE2d 115) (1991).

In this case, in paragraph IV of his pro se answer to the complaint, Moye stated:

The corporation, Mountain Bound Inc., and defendant, Fred R. Johnson, Jr., are indebted to the plaintiff for the estimated sum of $22,252.32. The defendant, Paul Moye, whose name appears upon the credit application and personal guarantee is for the purpose of the issuance of checks by the corporation to the plaintiff.

Moye further claimed: “Defendant, Paul Moye, is not the actual guarantor of the debt to Alliant Foodservice based upon the plaintiff’s own business actions and policies. That the sum of $22,252.32, attorney fees and interest are not attachable to the plaintiff, Paul Moye.” Moye’s conclusion that the corporation and Johnson are the parties indebted to Alliant and that he is not likewise indebted is a legal conclusion or Moye’s own opinion. Similarly, Moye’s claim that he is not an “actual guarantor” is merely his opinion. Since Moye’s pleading is replete with his legal conclusions and opinions, it cannot be considered an admission in judicio that would be effectively binding upon Mountain Bound and Johnson. Ay cock, supra. In filing this answer, moreover, Moye’s interest was directly adverse to that of Mountain Bound and Johnson. To the extent that Moye’s assertion in his responsive pleading that the other defendants “are indebted to the plaintiff for the estimated sum of $22,252.32,” could be considered an admission of a fact, see Greene v. Gulf Oil, supra, it is not binding upon the others because Moye’s position in his answer was clearly adverse to both Mountain Bound and Johnson. For these reasons, the trial court should not have considered it in awarding summary judgment to Alliant.

3. Mountain Bound and Johnson contend that the trial court erred in refusing to recognize that the affidavit of Mathis raised a disputed issue of material fact. They argue that the remaining evidence precluded the award of summary judgment.

A crucial rule of summary judgment procedure is that a trial court cannot resolve facts or reconcile issues but can only ascertain if a material factual issue remains in dispute. Bagley v. Firestone Tire &c. Co., 104 Ga. App. 736, 739 (123 SE2d 179) (1961). When there are conflicting affidavits as to material facts, summary judgment is properly denied. W. J. Bremer, Inc. v. United Bonding Ins. Co., 122 Ga. App. 183, 184 (176 SE2d 633) (1970).

Proof of delivery is an essential element of Alliant’s entitlement to recovery on the account. Stalvey v. Osceola Indus., 124 Ga. App. 708 (185 SE2d 629) (1971). But that element was not established without dispute. While the affidavit of Mathis is not dispositive of the factual question of whether the goods were actually delivered, neither is the competing affidavit of W. Scott Griffin, Jr. offered by Alliant.

Business records, when appropriate, must accompany an affidavit purporting to establish the amount of a debt. Casey v. North Decatur Courtyards &c. Assn., 213 Ga. App. 190, 191-192 (2) (444 SE2d 361) (1994). When records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record, the affidavit is insufficient. Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991); Watson v. Ga. State &c. Credit Union, 201 Ga. App. 761 (1) (412 SE2d 286) (1991).

In this case, Griffin, Alliant’s credit manager, testified in his affidavit that he was familiar with the business records involved in the transaction as shown “by the true and accurate copies attached hereto.” But no records appear to have been attached to this affidavit. Griffin’s affidavit also attests that “[t]rue and correct copies of the proofs of deliveries are attached to plaintiff’s motion for summary judgment.” But the only document attached to the motion is a computer printout of certain billings, payments, and credits. This printout does not prove that the goods were delivered, but only that Alliant billed for them. See Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 558-559 (254 SE2d 881) (1979). An affidavit lacking in the needed supporting documentation is not sufficient to prove an amount of indebtedness. Trico Ins. Agencies v. Selective Ins. Co., 213 Ga. App. 138, 139 (1) (444 SE2d 119) (1994). Consequently, this affidavit without its referenced documentation was not sufficient within the meaning of Taquechel, supra, and Watson, supra.

Although Alliant now claims that Mathis “was not qualified to make the affidavit” because Moye, not Mathis, was corporate president, the record does not indicate that Alliant first moved to strike this testimony and then obtained a ruling from the trial court on that basis. Fed. Ins. Co. v. Oakwood Steel Co., 126 Ga. App. 479, 481 (191 SE2d 298) (1972); see Vaughn & Co. v. Saul, 143 Ga. App. 74, 78 (237 SE2d 622) (1977) (motion to strike must be timely made or it is waived). Alliant’s failure to procure a ruling by the trial court on the admissibility of this affidavit resulted in waiver of this issue on appeal. Glisson, supra.

A verified pleading may serve as the functional equivalent of an affidavit and suffice to create an issue of fact. Foskey v. Smith, 159 Ga. App. 163 (283 SE2d 33) (1981). Here, Mountain Bound and Johnson’s verified answer and the sworn denials set forth in Mathis’s affidavit when contrasted to the averments made by Griffin demonstrate the existence of disputed questions of fact. Hopkins v. Garner & Glover Co., 233 Ga. App; 264, 268 (2) (a) (504 SE2d 78) (1998). When viewed in the light most favorable to the nonmovants, we find that the opposing evidence indicates a factual dispute as to whether the goods for which Alliant sought payment were received. King v. Amoco Oil Co., 182 Ga. App. 838, 839 (1) (357 SE2d 291) (1987). Since the sufficiency of the competing evidence cannot be weighed, the conflicting assertions in the parties’ competing affidavits necessitate jury resolution. Shalom Farms v. Columbus Bank &c. Co., 169 Ga. App. 145, 148 (2) (312 SE2d 138) (1983). In light of . the conflicting evidence, a justiciable issue remains unresolved, and summary judgment must be reversed. Stalvey, supra at 709; Foskey, supra.

Decided March 1,2000.

Frank H. Jones, for appellants.

Howe & Associates, Sandra M. Torres, Mark A. Moore, William L. Henderson, for appellee.

Judgment reversed.

Pope, P. J., and Miller, J., concur.


text:
    A99A2212.
    MULLINAX v. THE STATE.
    (530 SE2d 255)
   Smith, Judge.

Jack Douglas Mullinax was indicted on charges of speeding and theft by receiving a stolen truck. He pled guilty to speeding and was tried by a jury and found guilty on the charge of theft by receiving. He was sentenced as a recidivist. He appeals, contending that the trial court erred in ruling certain evidence admissible and in sentencing him as a recidivist. We find no merit in either contention, and we affirm.

Construed to support the jury’s verdict, the evidence presented at trial showed that three days after a 1967 Chevrolet truck had been reported stolen, Officer Jack Pinholster of the Henry County Police Department stopped Mullinax for speeding in that truck. He asked Mullinax for his driver’s license and proof of insurance, and Mullinax produced his driver’s license. Pinholster testified that Mullinax never produced any other documents, such as registration or insurance. Pinholster returned to his patrol car to write a citation for speeding, and while in his patrol car, he received a radio communication informing him that the truck was “possibly stolen.” Pinholster testified he then informed Mullinax that he was “going to be under arrest” and that if he could produce any type of document showing ownership, he could be released. The defense objected to this testimony as tantamount to a comment on the pre-arrest silence of Mullinax. The trial court overruled the objection.

Mullinax testified at trial that he had bought the truck from “Mr. McEvans” at a local arcade for $400 and a 350 Chevrolet engine on March 30 and that the seller told him it was a 1972 model. According to Mullinax, they drew up a bill of sale at the arcade and called a notary to witness the bill of sale. He then produced a notarized bill of sale, which was admitted into evidence. The bill of sale recites that it is for a “1972 Chevy pick up as is for 700 cash.” Mullinax testified that the bill of sale did not have the vehicle identification number on it because he could not find one anywhere on the truck. He wrote the engine serial number and tag number on the document the morning of trial because he “thought you needed the tag number on it.” He testified that he received a single key from the seller, and he later determined that “any General Motors key would turn it on.”

1. Mullinax contends it was error for the trial court to overrule his objection to the testimony regarding his failure to come forward with proof of ownership. He argues that when combined with the State’s later questioning of the bona tides of the bill of sale produced by Mullinax at trial, Pinholster’s testimony violates the prohibition against commenting on an accused’s silence. Mallory v. State, 261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991). We do not agree.

In two cases, the United States Supreme Court held that the State may comment on the fact that a defendant did not voluntarily come forward, if the defendant’s silence was not induced by Miranda warnings and the defendant has waived his privilege against self-incrimination by testifying at trial. Mallory, supra at 629 (5). But although no U. S. constitutional provision exists prohibiting such comment, the Supreme Court of Georgia held in Mallory that such comment was too prejudicial ánd from the date of Mallory’s publication would not be permitted in this state. Id. at 630 (5).

This court has not interpreted Mallory, however, to bar evidence otherwise admissible as part of the res gestae of the crime. Boykin v. State, 240 Ga. App. 402, 403-404 (1) (523 SE2d 605) (1999). “As a general rule, all the circumstances connected with a defendant’s arrest are admissible as a part of the res gestae.” (Citation and punctuation omitted.) Anderson v. State, 236 Ga. App. 679, 682 (4) (513 SE2d 235) (1999). When such evidence is relevant for the purpose of showing the circumstances of the arrest, it need not be excluded simply because it is prejudicial. Id.

In this case, Mullinax was charged with receiving stolen property, and the fact that he did not have proof of ownership when arrested was very relevant to the issues at trial. This was not a matter of silence; a police officer conducting a traffic stop has a right to request and examine such documents as a driver’s license, proof of insurance, and registration of the vehicle and may run a computer check of these documents. Sutton v. State, 223 Ga. App. 721, 723 (478 SE2d 910) (1996); accord Williams v. State, 233 Ga. App. 70, 71 (1) (503 SE2d 324) (1998).

Decided March 1, 2000

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

Moreover, even if the trial court erred in overruling the objection, any error would be harmless because Mullinax’s objection was not timely. At the point in Pinholster’s testimony when the objection was interposed, Pinholster had already stated three times, without objection, that Mullinax had not provided him with any paperwork other than his driver’s license. The testimony to which Mullinax objected was therefore merely cumulative of that previous testimony, which had been admitted without objection. “Evidence is harmless where admissible evidence of the same fact is before the jury. Accordingly, any error in overruling defendant’s objection would have been harmless.” (Citation and punctuation omitted.) Tate v. State, 230 Ga. App. 186, 189 (3) (495 SE2d 658) (1998).

2. Mullinax also contends the trial court erred in sentencing him as a recidivist because the State did not give him written notice of its intent to use his prior convictions in aggravation of sentence. Defense counsel, at sentencing, conceded that the State had orally notified him of Mullinax’s prior convictions and its intent to introduce them under OCGA § 17-10-2. The statute provides that such prior convictions are admissible only if the State has made them known to the defendant prior to trial. OCGA § 17-10-2 (a). We have held that such notice must be “ ‘clear and not cloudy.’ ” Sanders v. State, 230 Ga. App. 176, 178 (4) (495 SE2d 653) (1998). Mullinax argues this indicates that the State must provide written notice. But we have held specifically that the statute does not require written notice; all that is required is “clear notice.” Graham v. State, 171 Ga. App. 242, 256 (17) (319 SE2d 484) (1984). Although written notice is preferable, it is not required as long as the notice is clear. Moss v. State, 206 Ga. App. 310, 312 (5) (425 SE2d 386) (1992). Given Mullinax’s acknowledgment in open court that the prosecution had disclosed his prior record and discussed with defense counsel “where he fell in the tier of a recidivist statute,” we conclude that he received adequate and clear notice, as required by OCGA § 17-10-2. The trial court did not err in sentencing Mullinax as a recidivist.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

        Fletcher v. Weir, 455 U. S. 603 (102 SC 1309, 71 LE2d 490) (1982); Jenkins v. Anderson, 447 U. S. 231 (100 SC 2124, 65 LE2d 86) (1980).


author: Miller, Judge. SMITH, Judge,

text:
    A99A2086, A99A2087.
    In the Interest of T. B., a child (two cases).
    (529 SE2d 620)
   Miller, Judge.

This is a tale of two parents: a 16-year-old mother whose parental rights the court terminated because she dropped out of high school and a 21-year-old father whose parental rights the court terminated because he was late in meeting some of the goals of his reunification plan. While it is important to receive an education, failure to complete school cannot be the primary reason to terminate parental rights, and thus we reverse the termination of the mother’s rights (Case No. A99A2086). Nor are delays in meeting some goals of a court-ordered reunification plan alone sufficient, and thus we also reverse the termination of the father’s rights (Case No. A99A2087).

The mother and father were 13 and 19 years old, respectively, when they conceived a boy, T. B. Because of the mother’s truancy from school, the Department of Family & Children Services took custody of her prior to T. B.’s birth. DFACS also took custody of T. B. upon his birth and placed both T. B. and his now 14-year-old mother in the same foster home, so she could help care for him.

DFACS developed a case plan to reunify the mother and T. B., which the mother generally followed until DFACS about a year later took T. B. from her care and placed him in a distant foster home. Distraught about the absence of her child, the mother nevertheless followed the case plan with the exception that she married a man and dropped out of high school to get a job in an effort to establish a stable residence for the hoped-for return of her child. In response, DFACS petitioned to have her parental rights terminated for her failure to meet the case plan goal of attending school.

Meanwhile, despite repeated demands from DFACS, the father delayed petitioning to legitimate T. B. for about a year until T. B. was placed in the distant foster home. Once this petition was filed, DFACS developed a case plan (to run for six months) to reunify the father with T. B., the goals of which the father for the most part met, although with some delay. He was delinquent in paying child support but then caught up; he procured somewhat stable employment; he worked on creating a stable home; and he completed parenting classes late in the six-month period.

Following a hearing, the juvenile court terminated the rights of both parents'. Both appealed, citing premature filing and insufficiency of the evidence.

1. Arguing that DFACS had prematurely filed the petition to terminate, both the mother and the father contend that T. B. had not yet been in foster care for the 15 months specified in OCGA § 15-11-41 (n). But OCGA § 15-11-41 (n) does not require that 15 months of foster care transpire before DFACS may file a petition; rather, it simply provides that after 15 months of foster care (of the most recent 22 months), DFACS shall file a petition to terminate, with certain exceptions. Regardless of whether T. B. met the 15-month definition, the statute did not preclude an earlier filing; it simply directed a filing if the definition was met. This enumeration is without merit.

2. We recently reiterated that “[a]s there is no judicial determination that has more drastic significance than the permanent severance of a natural parent-child relationship, the severance of that relationship must be exercised cautiously and scrutinized deliberately. [Cit.]” Moreover, in In the Interest of C. G., we emphasized that “[b]ecause the termination of parental rights has a final, ultimate, and significant result, that judgment must conclusively show compliance with the statutory criteria prescribed as a condition precedent.” Thus, no court can terminate a parent’s rights to his or her child unless there is clear and convincing evidence of present parental unfitness and of the termination being in the best interest of the child.

OCGA § 15-11-81 (b) (4) (A) (i)-(iv) prescribe that a court can find parental unfitness only if it finds all four of the following facts by clear and convincing evidence: (i) the child is deprived, (ii) lack of parental care caused the deprivation, (iii) such is likely to continue, and (iv) continued deprivation is likely to cause serious harm to the child. In reviewing the evidence, we construe it in favor of the juvenile court’s findings.

3. We review these factors first relative to the mother.

(a) Deprivation. The juvenile court had previously determined that T. B. was and continued to be deprived and entered deprivation and extension orders to that effect. Because the mother did not appeal any of these orders, for purposes of the termination hearing she was bound by this finding of deprivation.

(b) Lack of Proper Parental Care and Control. To determine whether the child is without proper parental care and control, the court considers, among other things, the physical, mental, or emotional deficiencies of the parent; excessive use of alcohol or drugs; felony convictions and imprisonment; egregious conduct toward the child or other children; neglect of the child; and abuse of siblings. DFACS does not allege that any of these factors were present here.

Where the child is not in the custody of the parent, the court also considers, among other things, whether the parent, for a period of one year or longer, failed significantly (i) to maintain a meaningful parental bond with the child, (ii) to pay required child support, or (iii) to comply with the reunification plan. DFACS does not contest the mother’s compliance with the first two, but rather places all its eggs in one basket: noncompliance with the reunification plan. As stated in its appellate brief, “[t]he Department simply decided to proceed with termination in the case at bar for one simple reason — Appellant failed to comply with her court-ordered reunification case plan which had been in effect for over one year.”

That reunification plan had five goals for the mother: (i) obtain parenting skills; (ii) learn to manage her behavior; (iii) maintain meaningful contact with T. B.; (iv) cooperate with DFACS; and (v) stay in school and make progress toward a high school diploma. As the following demonstrates, and as conceded by the DFACS representative at trial, the only goal she did not achieve was the educational goal.

(i) Obtaining parenting skills. The DFACS caseworker admitted that the mother attended three sets of parenting classes at the maternity home, at school, and at summer camp. She did very well in the school class, receiving grades of 93 and 100 (although she eventually stopped the class when she dropped out of school), exhibited a working knowledge of parenting techniques, and did so well at the summer camp that she was recommended to the advisory board. The caseworker conceded that through these classes the mother had acquired and applied parenting skills, although she was not consistent in her applications. Regarding examples of inconsistency, the mother once threw a toy at the child to get him to stop doing something and either she or her sister once “kind of” hit him on the head with a pot as a playing technique. She was also “verbally aggressive” with some children in a sample class. These isolated vague instances do not support clear and convincing evidence of parental unfitness.

(ii) Learning to manage behavior. The mother successfully completed an eight-week anger management course and received and cooperated in professional counseling about her behavior. The caseworker testified that although unsettled early on, since her marriage the mother had made improvements in managing her behavior. The anger counselor testified that she stood out as one of the positive leaders of the anger management group. Although she still needed some counseling, she had progressed and had become a nurturing mother in need simply of continued direction and guidance.

(iii) Maintaining meaningful contact with T. B. The caseworker readily admitted that the mother had maintained meaningful contact with T. B. and had not missed a visit. In fact, during the first year of T. B.’s life, even though he was in the custody of DFACS, the mother had lived with and cared for the child. Only after the decision to place T. B. in a distant foster home did that care end, which severely traumatized the 15-year-old mother. She pleaded for more visitation than the DFACS-supervised one hour a week, but to no avail.

4. Cooperating with DFACS. The caseworker conceded that the mother cooperated with DFACS. As a rule she followed through on DFACS’ requests. She consistently came in when asked, attended all reviews, and took requested drug screens.

5. Attending school. The only goal not achieved by the mother was attending school. Although during the first year she made progress in school attendance (except for absences due to gallbladder surgery and doctor appointments), during the second year the mother began missing more and more school. This absenteeism also violated the terms of her probation for truancy and unruly behavior. After T. B. was placed in a distant foster home, her attendance plummeted; she was suspended for fighting; she spoke aggressively to a teacher (and was required to wait for security to escort her away); and she began failing three of her four courses. She eventually dropped out of school to marry and get a job in the hope of establishing a home for T. B.

Because the caseworker felt attending school was “essential” to being a good parent and was the “biggest requirement” of the case plan, DFACS sought to terminate her parental rights on this ground. Significantly, her problems with keeping terms of probation (staying out past curfew and contacting child’s father) dissipated once she married, and she completed the terms of her probation with the exception of school attendance. Her probation was closed the month of the hearing.

Where the primary allegation of parental misconduct is failure to comply with a case reunification plan, and where the evidence is undisputed that the parent has complied with four of the plan’s five goals, where the only unmet goal is completing high school, and where the parent quit high school to marry and get a job to provide a home for the child, there is by no means clear and convincing evidence of parental misconduct under OCGA § 15-11-81. The other bases enumerated in the court order, which are not defended by DFACS on appeal, also do not withstand scrutiny. The facts that she had known her husband only four to five months before marriage, that he had lost a child to DFACS because he could not afford the child, and that he had held employment only for weeks prior to the hearing are hardly relevant to her parenting skills. Similarly irrelevant are her decision to stop taking depression medication once she felt better and her inability to work until she quit school.

We need not address the other factors of OCGA § 15-11-81 (b) (4) (A) (iii) and (iv) other than to say that they cannot be proven absent a showing of parental misconduct. “While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship.” In light of the undisputed evidence, we reverse the judgment terminating the mother’s parental rights and remand the case for the establishment of a new reunification plan, subject to whatever disposition is warranted by future events and those occurring since the termination hearing.

6. The father has a similar story. True, he delayed a year, despite repeated requests from DFACS, before petitioning to legitimate T. B. But once he received a case plan, the evidence is undisputed that during the six months of the plan he substantially met or worked toward the plan’s goals. Because his failure to meet these goals timely was the primary basis for terminating his rights, we reverse. We discuss the criteria of OCGA § 15-11-81 (b) (4) (A) seriatim.

(a) Deprivation. Like the mother, the father failed to appeal the orders finding deprivation and is therefore bound by same.

(b) Lack of proper parental care and control. As with the mother, DFACS pointed to none of the factors of OCGA § 15-11-81 (b) (4) (B) as a basis for termination. His single arrest for marijuana possession and the positive test of marijuana in his urine do not constitute clear and convincing evidence of an excessive use or history of chronic unrehabilitated abuse of narcotics under OCGA § 15-11-81 (b) (4) (B) (ii), particularly where DFACS presented no evidence that such rendered him incapable of providing adequately for the needs of T. B. The caseworker conceded that the father regularly visited T. B. and that he had caught up on his child support, so the only factor under OCGA § 15-11-81 (b) (4) (C) to justify termination was his alleged failure to comply with his reunification plan.

His plan had six goals to be achieved within six months: (i) address mental health and anger issues by completing a parenting assessment and parenting classes, (ii) create a stable living environment, (iii) keep a job for six months, (iv) pay child support, (v) have regular visits with T. B., and (vi) cooperate with DFACS. The undisputed evidence shows that he achieved or was well on his way to achieving most of these goals, although he was late in doing so.

(i) Addressing mental health issues. The father completed the parenting assessment as requested. He also attended counseling as requested. He attended and completed an entire sequence of parenting classes and received a certificate during the latter part of the six-month period.

(ii) Create a stable living environment. The father established a home for T. B., which DFACS found to be “fairly neat and clean.” The grandfather also lived there and had a drinking problem, which the father felt was undesirable. DFACS presented no evidence that the home was only temporary or was unsafe. Nor did DFACS feel that a home separate from the grandfather was required.

(iii) Keep a job for six months. Halfway through the six months of the case plan, the father obtained employment that he held for the three and one-half months preceding the termination hearing. DFACS presented no evidence that he was soon to be fired from this job. Thus, the father was complying with this goal of the case plan at the time of the hearing.

(iv) Pay child support. The father fell behind in child support, which he caught up after the panel review of his case. This was still within the six-month period of the plan. He was current at the time of the hearing.

(v) Have regular visits with T. B. As with the mother, the caseworker readily admitted that the father had regular visits with T. B. The father continuously asked for more visits, which led to friction between him and DFACS.

(vi) Cooperate with DFACS. As requested, the father attended all panel reviews regarding T. B. After initially refusing, he submitted to a urine drug screen, which tested positive for marijuana. His primary confrontation with DFACS was his demand for more visits with T. B.

The father is far from being a model citizen, but the above does not establish by clear and convincing evidence that he engaged in misconduct that caused T. B. to be deprived or that such misconduct was likely to continue. Case plans are significant factors, but delayed compliance with a minority of a plan’s goals cannot alone serve as the sole basis for terminating parental rights. We reverse the judgment terminating the father’s parental rights and remand the case for the establishment of a new reunification plan, subject to whatever disposition is warranted by future events and those occurring since the last termination hearing.

Decided February 4, 2000 —

Reconsideration denied March 2, 2000.

James E. Wilbanks, for appellant (case no. A99A2086).

Michael R. McCarthy, for appellant (case no. A99A2087). Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, for appellee.

Judgments reversed.

Pope, P. J., concurs. Blackburn, P. J., Ruffin and Ellington, JJ, concur in the judgment only. Andrews, P. J., and Smith, J., dissent.

SMITH, Judge,

dissenting.

I respectfully dissent. The mother’s rights were not terminated simply “because she dropped out of high school,” as the majority asserts. Substantial evidence was presented that the mother has serious unresolved problems, including unstable and violent behavior, refusal to take prescribed psychoactive medication, and continuing probation violations, even under the threat of pending termination of her rights. On appeal from a termination of parental rights, “this court neither weighs the evidence nor determines the credibility of witnesses; rather, we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.” (Citation and punctuation omitted.) In the Interest of W. M., 239 Ga. App. 319, 321 (1) (521 SE2d 230) (1999). We should not reweigh the evidence and substitute our judgment on the cold record for that of the judge who saw and heard the witnesses and evaluated their testimony in person.

I am authorized to state that Presiding Judge Andrews joins in this dissent.

        In the Interest of K. M., 240 Ga. App. 677, 679-680 (523 SE2d 640) (1999).

       235 Ga. App. 23 (508 SE2d 246) (1998).

       (Citation and punctuation omitted.) Id. at 24.

        K. M., supra, 240 Ga. App. at 679-680; see OCGA § 15-11-81 (a).

       See In the Interest of K. D. S., 237 Ga. App. 865 (1) (517 SE2d 102) (1999).

       Id.

       Id. at 865 (1) (a).

       OCGA § 15-11-81 (b) (4) (B) (i)-(vi).

       OCGA § 15-11-81 (b) (4) (C) (i)-(iii).

       Cf. C. G., supra, 235 Ga. App. at 24 (the crux of the DFACS case was the mother’s mental condition, which no evidence showed was likely to continue).

       Moreover, regarding the child’s best interest, we note the uncontradicted testimony that T. B. responded well to the mother and was upset when removed from her presence.

        K. M., supra, 240 Ga. App. at 680-681.

       Id. at 681.

        K. D. S., supra, 237 Ga. App. at 865 (1) (a).

       See K. M., supra, 240 Ga. App. at 681.


text:
    A00A0158.
    AL-MADINAH PETROLEUM, INC. v. MAHSA, INC. et al.
    (529 SE2d 662)
   Phipps, Judge.

Al-Madinah Petroleum, Inc. leased a gas station/convenience store to Mahsa, Inc. for 20 years. The lease obligated Mahsa to insure the property against casualty loss but also authorized Al-Madinah to obtain the insurance if Mahsa failed to comply with its leasehold obligation. Either party could cancel the lease if the building was destroyed to the extent of 50 percent or more of its value. Was Mahsa authorized to cancel the lease after a tornado damaged the store? Did an insurance policy obtained by Al-Madinah relieve Mahsa of its obligation to procure casualty insurance? These are the questions for decision.

This action was brought by Mahsa and its chief executive officer Hassanzadeh (collectively referred to as Mahsa) against Al-Madinah and its CEO Dhanani (collectively referred to as Al-Madinah). In the complaint, Mahsa sought rescission of the lease on the ground that Al-Madinah had fraudulently induced it to enter into the lease by failing to disclose that the leased premises would become the subject of a condemnation proceeding. By counterclaim, Al-Madinah charged Mahsa with breaching the lease by failing to pay rent and taxes.

After these pleadings were filed, the store was. substantially damaged by a tornado. Al-Madinah then amended its counterclaim to seek damages based on noncompliance with the lease provision requiring Mahsa to maintain casualty insurance. Mahsa later filed a motion for declaratory judgment that it had properly exercised the other lease provision authorizing lease cancellation upon destruction of the premises.

Finding that casualty insurance was procured by Al-Madinah rather than Mahsa, the trial court entered summary judgment in favor of Mahsa as to the amended counterclaim. Finding that the lease was effectively canceled by Mahsa because of the tornado damage, the court also granted summary judgment to Mahsa on the motion for declaratory judgment. Al-Madinah appeals. Held:

The construction of a contract is a question of law for the court. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.

1. The court did not err in granting summary judgment to Mahsa on its request for declaratory judgment.

The lease entitles either Al-Madinah or Mahsa to effect a cancellation upon the occurrence of any of a number of specified events. The lease may be canceled if, among other things, “the building of which [the leased premises are] a part. . . should be damaged to the extent of fifty percent (50%) or more of the then monetary value thereof. »

Al-Madinah’s own evidence showed that it will cost at least $163,020 to repair the building and that, for insurance purposes, the replacement cost of the building was $258,000. Nonetheless, AlMadinah argues that Mahsa was not entitled to cancel the lease because the leased premises also include improvements to the property consisting of underground structures (e.g., gas tanks) which are valued at approximately $500,000, so that there was damage to less than 50 percent of the total value of the leased premises. But the cancellation provision of the lease clearly distinguishes between the leased premises and the building of which the leased premises are a part and authorizes cancellation if the damages to the building exceed 50 percent of its value. The evidence shows without dispute that damage to the building exceeded the specified threshold.

There is no merit in Al-Madinah’s argument that in filing a motion for declaratory judgment, Mahsa in effect moved for summary judgment without complying with Uniform Superior Court Rule 6.5 (requiring statements of each theory of recovery and of each material undisputed fact to be annexed to the motion). Mahsa did not move for summary judgment until after the motion for declaratory judgment was filed and the statements required by Rule 6.5 were annexed to the summary judgment motion.

Documents submitted in support of the motion for declaratory judgment were not objectionable for any reason given by Al-Madinah. Contrary to Al-Madinah’s assertions, it appears that statements in Hassanzad'eh’s affidavit were made on his personal knowledge and other supporting documents were signed and authenticated by Mahsa’s attorney. There is no merit in Al-Madinah’s argument that OCGA § 9-11-56 (e) required Mahsa to obtain court permission to file affidavits in support of a supplement to its motion for declaratory judgment, as these affidavits did not supplement or oppose any earlier affidavits but rather concerned matters not previously addressed.

2. The court erred in granting summary judgment to Mahsa on Al-Madinah’s amended counterclaim.

The lease obligated Mahsa, at its sole cost and expense, to maintain various types of insurance on the property, including casualty insurance. If Mahsa failed to comply with its insurance obligations, the lease authorized Al-Madinah to procure the insurance and require payment of the premiums from Mahsa as additional rent.

It is undisputed that Mahsa did not purchase the required insurance, that Al-Madinah did procure an insurance policy listing the leased premises on its schedule of locations, that the insurer denied Al-Madinah’s claim for damages caused by the tornado on the ground that the leased premises were not covered by the policy at the time of the tornado, and that a resulting lawsuit by Al-Madinah against the insurer is currently pending.

Decided February 15, 2000 —

Reconsideration denied March 2,2000.

Higgins & Dubner, Michael W. Higgins, for appellant.

David C. Farshy, for appellees.

Al-Madinah asserts that it did not procure this policy in lieu of the insurance which Mahsa was obligated to obtain but simply made claim on the policy when it discovered that Mahsa had not insured the property against casualty loss. Mahsa does not dispute this assertion or otherwise claim that it failed to maintain the required insurance in reliance on actions taken by Al-Madinah. Under the circumstances, Mahsa was not entitled to summary judgment on the amended counterclaim because there is a genuine issue of material fact on the question of whether insurance coverage in fact exists.

Judgment affirmed in part and reversed in part.

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

        Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986).

       OCGA § 9-11-56 (c).


text:
    A99A1646.
    TUDOR v. FORD.
    (530 SE2d 474)
   Andrews, Presiding Judge.

Pursuant to the grant of an interlocutory appeal, we review the denial of summary judgment to Tudor in Ford’s premises liability case.

In reviewing the grant or denial of summary judgment, a de novo standard of review is applied, and we view the evidence with all reasonable inferences and conclusions in favor of the party opposing summary judgment. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996).

So viewing the evidence presented on summary judgment in favor of Ford, it was that, in July or August 1996, Tudor took over the duties of general contractor on the Tudors’ new home. While a large part of the work had been completed, additional brick work, painting, and some carpentry remained to be finished. Ford and Tudor orally agreed that he and his crew would complete the masonry work on the weekends. The Tudors had a construction dumpster on the premises, and, at least once a day, Tudor, her husband, and/or their sons visited the site and walked the premises, picking up debris. Also, the Tudors hired a man with a tractor to grade the land and dump trash into the dumpster twice, once before Ford was on the job.

According to Ford, he, his son, and two others worked on the Tudor property three weekends in August, the final weekend being August 17, 1996. Ford described the construction site as having bricks and debris, and “[n]ails [were] on the ground all the way around the house.” Ford also stated that there were nails in the carport and all around the house, some loose and some in boards. Howard, one of Ford’s co-workers on the project, described the area as containing nails in two-by-fours “like normally [would] be on any construction job,” and “like a regular normal construction site, guys step on nails all the time. . . .”

On his last day on the job, Ford came out of the carport to go to the front of the house and stepped on a finishing nail sticking out of a piece of fascia board, partially covered by grass. Ford was talking to one of his workers while wallring and did not see the nail before stepping on it. Ford acknowledged, however, that if he had stopped and looked, he would have seen the nail. Although he was wearing work boots with an inch to inch and a half soles, the nail penetrated the sole and the large toe of his left foot. Ford pulled the nail out of his foot and continued working. He did not mention the incident to anyone else, including the Tudors. He did not keep the piece of fascia board or the nail, and there is nothing in the record to indicate the condition of the board and nail at the time Ford stepped on it.

Ford’s foot began to throb on August 18, and he went to Dr. Thigpen on August 23. Dr. Thigpen, a family practitioner, had diagnosed Ford with diabetes in September 1995. Ford was on medication and was given a home glucose monitor. He returned to Dr. Thigpen on October 18, 1995, with his diabetes under control and was to return in four months. He did not return until his visit on August 23, 1996. At that time, Dr. Thigpen noticed that his left foot was swollen and red. Because diabetics often do not feel their feet and can damage them without being aware, Dr. Thigpen specifically asked Ford if the foot had experienced any trauma, and Ford denied any. Ford acknowledged that he had been out of his diabetes medication for the past couple of months, and, according to Dr. Thigpen, his diabetes was “out of control.”

Dr. Thigpen’s examination of Ford’s left foot revealed a small ulceration with discharge at the base of the second toe, not the large toe. According to Dr. Thigpen, there was no way to know if this ulcer was a blister that had ruptured or was secondary to trauma. Dr. Thigpen was unable to say, with any reasonable degree of medical certainty, that Ford’s problem was due to stepping on a nail. Ford was admitted to the hospital on August 24 with a diagnosis of “severe cellulitis of the left foot secondary to diabetic neuropathy.” Dr. Roth-well, a surgeon, examined Ford on August 25 and found an infected left foot and a draining sore on Ford’s right big toe which Ford said had been there several months. Ford denied any trauma to the left foot to Dr. Rothwell. The third toe of Ford’s left foot was dead and rotten. According to Dr. Rothwell, this was the probable source of the massive infection, which went to the bone and eventually required the amputation of the left leg below the knee. According to Dr. Roth-well, infection requiring amputation can occur in diabetics without any kind of trauma, and he could not say with any degree of medical certainty that the problems were due to a puncture wound in the left big toe. Additionally, gangrene can occur “amazingly rapidly” in a diabetic.

1. To recover,

“an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant established negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

Hopkins v. Kmart Corp., 232 Ga. App. 515, 516 (502 SE2d 476) (1998) (physical precedent only).

(a) Here, there is no evidence presented indicating that Tudor had actual knowledge of the presence of the board and nail.

(b) Regarding constructive knowledge, Tudor has presented evidence that she and members of her family engaged in a daily inspection and cleanup routine on the construction site. This satisfies the defendant’s initial burden of demonstrating the exercise of reasonable care in inspecting the premises and shifts the burden to Ford to demonstrate how long the hazard had been present. Hopkins, supra; Anderson v. Svc. Merchandise Co., 230 Ga. App. 551, 553 (496 SE2d 743) (1998); Gleaton v. APAC-Ga., 228 Ga. App. 52, 54 (2) (491 SE2d 138) (1997).

As set out above, the record is devoid of any evidence indicating how long the board and nail had been present on site, and therefore, Ford has failed to show Tudor’s constructive knowledge of the hazard which would prevent summary judgment.

Decided March 2, 2000

Gorby, Reeves, Peters & Burns, Michael S. Reeves, Terrell W. Benton III, for appellant.

Edwards & Youmas, Lonzy F. Edwards, for appellee.

2. Further, even assuming that Tudor’s knowledge had been shown, Ford’s knowledge of the condition of the premises and the hazards posed by a construction site was equal to Tudor’s. Ford, acknowledged that there were nails and boards with nails “all the way around the house.” Compare Gleason v. Hagemeister, 235 Ga. App. 389, 391-392 (509 SE2d 704) (1998) with Gateway Mgmt. Co. v. Sutton, 189 Ga. App. 296 (375 SE2d 462) (1988).

3. Additionally, upon de novo review, we conclude that, viewing the medical evidence presented in the light most favorable to Ford, there is another legal basis upon which the defendant was entitled to summary judgment. Neither of the doctors who treated Ford was able to conclude that the nail puncture was a causative factor in the condition of his left foot. Rather, both doctors concluded that Ford’s diabetes was out of control and was the primary cause of the loss of his lower leg.

The proximate cause requirement constitutes a limit on legal liability; it is a policy decision that for a variety of reasons, such as an intervening act, the defendant’s conduct and the [plaintiff’s] injury are too remote for the law to countenance recovery. [Cit.]

Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996).

Therefore, this is one of those “plain, palpable and undisputed cases” in which the defendant, Tudor, was entitled to summary judgment.

Judgment reversed.

Ruffin and Ellington, JJ., concur.

       Ford and the others worked as masons during the week for a contractor on another job.