text:
    A99A2334.
    CULLINGHAM v. THE STATE.
    (529 SE2d 199)
   Miller, Judge.

Following a bench trial, Sidney Cullingham was found guilty of driving with an unlawful blood alcohol level (Count 2) and driving under the influence of alcohol to the extent that it was less safe for him to drive (Count 1). The court merged Count 1 with Count 2 for sentencing. On appeal, Cullingham challenges the denial of his motion to suppress, the sufficiency of the evidence that he was a less safe driver, and the finding that he was properly advised of his implied consent rights. We discern no error and affirm the conviction.

1. Cullingham argues that the alco-sensor and blood test results should have been suppressed. We will not disturb a trial court’s findings on a motion to suppress if there is any evidence to support them.

The evidence showed that when officers responded to a domestic dispute call at Cullingham’s home, they were informed that Cullingham had recently left the premises. Police eventually located Cullingham at the community clubhouse, where an officer requested that he drive back to his home. The officer conducting the investigation at the home observed Cullingham pull into the driveway. As Cullingham entered the home, the officer smelled a strong odor of alcohol and noticed that Cullingham had sleepy, watery eyes. Based on these signs of intoxication, the officer inquired whether Cullingham had been drinking, to which he responded that he had not. At the officer’s request, Cullingham agreed to take an alco-sensor test, which indicated the presence of alcohol on his breath. The officer then asked Cullingham if he would perform some field sobriety tests. Once again Cullingham consented, but as they returned to the officer’s patrol car, Cullingham became hostile and refused. He was then placed under arrest. The officer testified that he then read Cullingham the implied consent warning, after which Cullingham consented to a blood test. The test verified the presence of alcohol and indicated a blood alcohol content of 0.10.

Cullingham argues that there was no basis on which to conduct a brief investigatory stop at the conclusion of the domestic dispute investigation. But assuming a “stop” occurred, no “stop” regarding driving while under the influence of alcohol took place until the officer had observed Cullingham drive and exit a vehicle while exhibiting distinct signs of intoxication (sleepy, watery eyes and a strong odor of alcohol), creating reasonable suspicion. Thus, there was evidence to support the trial court’s denial of the motion to suppress.

2. Cullingham argues that the court erred in finding that he was a less safe driver due to alcohol consumption. But this enumeration is moot in light of the trial court’s merging of that count into Count 2 for sentencing.

3. Cullingham contends that the officer’s testimony that he read the implied consent warning as required by OCGA § 40-5-67.1 (b) is insufficient to show that the officer in fact informed him of these rights. Miller v. State explained that an officer’s conclusory statement that he read a warning contained on a card was not enough evidence for the State to meet its burden of proving compliance with OCGA § 40-5-67.1 (b). In that case, the deputy did not testify as to what rights he described to the defendant or as to the content of the card from which he read the warning. But here the arresting officer testified that (1) he read the Georgia implied consent law from 1997; (2) he read the notice for suspects over 21; and (3) he read it twice because Cullingham appeared not to understand. The officer even recited a portion of the warning given at trial. This testimony and the specifying of a portion of the warning are sufficient to prove compliance with the implied consent notice requirements.

Judgment affirmed.

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

Decided February 2, 2000 —

Reconsideration denied February 23, 2000

Walter W. Furlong, for appellant.

Barry E. Morgan, Solicitor, Jessica K. Moss, Jason A. Beato, Assistant Solicitors, for appellee.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Joachim v. State, 263 Ga. 816, 817 (2) (440 SE2d 15) (1994); Davidson v. State, 237 Ga. App. 580, 582 (3) (516 SE2d 90) (1999).

       238 Ga. App. 61 (516 SE2d 838) (1999).

       Id. at 62.

       Id.

       Compare id.; see Walker v. State, 204 Ga. App. 559, 562 (4) (420 SE2d 17) (1992).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A1670.
    SCHOEN v. CHEROKEE COUNTY et al.
    (530 SE2d 226)
   Johnson, Chief Judge.

Lloyd Schoen, a resident of Cherokee County, sued Cherokee County, the chairman of the County’s Board of Commissioners, and several members of the Board of Commissioners (collectively “the Board”), alleging they violated the Georgia Open Meetings Act (OCGA § 50-14-1 et seq.) by holding a private meeting in which they discussed and acted upon a zoning matter. The Open Meetings Act provides that all meetings (as defined in OCGA § 50-14-1 (a) (2)) must be open to the public and any actions taken during a meeting held in violation of the Act are not binding. The meeting at issue in this case comes within the Act’s attorney-client exception. Moreover, the issues which Schoen says were discussed and acted upon in the privileged meeting were later discussed and acted upon in a public meeting. We therefore affirm the trial court’s grant of summary judgment to the Board.

The Landon Group, which is not a party to this case, applied to the Board to change the zoning classification of the Landon Group’s property from agricultural to planned unit development. After the Board denied the application, the Landon Group filed a lawsuit against the County challenging the decision. On or about October 25, 1996, after a public meeting, the Board met in a private, executive session with the county attorney regarding the Landon Group litigation. According to Schoen, in the meeting the Board discussed and voted to approve a proposed consent order in the Landon Group case, then voted to bring the rezoning issue raised in the Landon Group case back before the Board in a session open to the public.

On November 4, 1996, the trial court in the Landon Group case signed a consent order vacating the Board’s denial of the Landon Group’s rezoning application and remanded the case to the Board for reconsideration and rezoning. On November 22, 1996, in a meeting attended by the public, the Board voted to rezone the property from an agricultural to a single-family residential classification. Schoen attended that meeting and voiced his opposition to the rezoning application.

Schoen filed his complaint on January 23, 1997, arguing that the actions taken during the private October 1996 meeting were illegal and void. In his prayer for relief, Schoen asked the trial court to find that the Board violated the Open Meetings Act, hold that the consent order discussed at and entered into after the meeting is therefore not binding, order the Board to pay attorney fees and litigation expenses, and grant any other relief the court deemed appropriate.

In a public meeting held in September 1997, before the trial court made a decision in Schoen’s case, the Board passed a resolution directing the county attorney to enter into a consent order regarding the Landon Group matter and ratifying any consent order previously entered into in the case. In October 1997, the Board held another public meeting in which it again discussed the Landon Group’s rezoning application and reaffirmed its previous action by rezoning the property as single-family residential.

Schoen moved for summary judgment, and the Board moved to dismiss or, alternatively, for summary judgment. The trial court granted the Board’s motion for summary judgment and denied Schoen’s motion. Schoen appeals from the grant of summary judgment to the Board.

1. The Open Meetings Act specifically provides that a meeting otherwise required to be open to the public may be closed so that the agency may consult and meet with legal counsel pertaining to pending litigation and settlement. OCGA § 50-14-2 (1). It is undisputed that the closed meeting was with the county attorney and was about the Landon Group litigation. Indeed, the minutes of the October 1996 meeting indicate that the Board met in an executive session to discuss pending litigation. And Schoen conceded below at the motion hearing that the meeting was between the Board and the county attorney and involved the Landon Group litigation and the Group’s rezoning request. The meeting clearly came within the Act’s attorney-client exception.

Schoen argues, however, that the attorney-client exception does not allow voting in a closed meeting and that the Board voted to approve the consent order and to bring the rezoning issue back before the public in another meeting. There is no competent evidence that the Board voted in the closed meeting. In fact, in their pleadings the board members denied allegations that they voted in the meeting. Schoen’s affidavit stating that a board member told him that the Board voted in the meeting has no probative value. See Ga. Farm &c. Ins. Co. v. Allen, 228 Ga. App. 607, 609 (492 SE2d 339) (1997). There is no evidence that the Board violated the Open Meetings Act.

Moreover, a governing body discussing pending litigation with counsel must necessarily be permitted to decide whether to accept or reject a proposed settlement agreement, even if it incidentally involves the taking of a vote regarding the litigation and involves the question of whether the matter underlying the litigation will be brought up again during a public meeting. Each of these matters comes within the Act’s exception.

Decided February 23, 2000.

Stephen F. Lanier, for appellant.

Robert M. Mahler, for appellees.

Inasmuch as the record does not support a finding that the Board without substantial justification violated the Open Meetings Act, Schoen was not entitled to an award of attorney fees and litigation expenses. See OCGA § 50-14-5 (b).

2. Furthermore, we agree with the trial court’s holding that subsequent actions taken by the Board to reaffirm actions allegedly taken in the private, privileged meeting render Schoen’s lawsuit moot. An issue is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. See Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (3) (a) (489 SE2d 99) (1989). The issue of whether the Board violated the Act by discussing the Landon Group’s case was rendered moot when the Board later considered and acted upon it in a public meeting. Even if any action taken in the closed meeting was not binding, the same action was taken in later public meetings and was binding. Therefore, a decision by this court that the action taken in the earlier meeting is not binding because it was done in violation of the Open Meetings Act would have no practical effect. The question is moot.

3. Because a judgment right for any reason must be affirmed, we need not address Schoen’s contention that the trial court erred in finding that his lawsuit was not timely filed. See generally Danzell v. Cannon, 224 Ga. App. 602, 603 (2) (481 SE2d 588) (1997).

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


text:
    A00A0654.
    LLOYD v. THE STATE.
    (530 SE2d 228)
   Johnson, Chief Judge.

Ronald Lloyd was charged with possessing cocaine found in his jacket pocket after the police stopped his car. He pled not guilty to the charge and moved to suppress the cocaine. The trial judge denied the motion, after which Lloyd was tried before the judge sitting without a jury. The trial court found Lloyd guilty of possessing cocaine. Lloyd appeals, arguing that the trial court should have granted his motion to suppress on the ground that the stop of his car was unlawful. The argument is without merit because the officer who stopped the car had reasonable grounds for doing so.

Decided February 23, 2000.

At about 4:00 a.m. on January 7, 1999, Cobb County Police Officer Maddox stopped a vehicle, and the driver of that vehicle fled on foot. Officer Mitchell, who was also on patrol that morning, went to the scene of the stop. Officer Maddox told Officer Mitchell that the person who fled was an African-American male wearing a light blue or gray top and matching pants and that he had fled in the direction of Cumberland Lodge, a known drug and prostitution area.

At approximately 5:00 a.m., Officer Mitchell went to Cumberland Lodge and saw Lloyd standing at the back of the building. Lloyd was wearing a light blue jean top and matching light blue jean pants. Officer Mitchell yelled at Lloyd to stay where he was, but Lloyd quickly jumped into a car and tried to leave. Officer Mitchell stopped Lloyd’s car and checked his driver’s license and proof of insurance. Officer Mitchell discovered through a crime database that there was an outstanding warrant for Lloyd. Based on that warrant, Officer Mitchell arrested Lloyd and took him to the Cobb County Adult Detention Center. At the jail, the police found a piece of crack cocaine in Lloyd’s jacket pocket.

A police officer may conduct a brief investigative stop of a vehicle if he has specific and articulable facts which give rise to a reasonable suspicion of criminal activity. In the instant case, Officer Mitchell had such specific and articulable facts when he saw that Lloyd matched the description of the person who had fled from the prior traffic stop, that Lloyd was in the area where that suspect had fled, and that Lloyd tried to flee when the officer asked him to stop. All of these facts gave Officer Mitchell a reasonable suspicion of criminal activity that justified his stop of Lloyd’s vehicle. The trial court therefore did not err in denying Lloyd’s motion to suppress the cocaine discovered after the lawful stop of his car.

Judgment affirmed.

McMurray, P. J., and Phipps, J, concur.

Steven A. Cook, for appellant.

Patrick H. Head, District Attorney, Andrew J. Saliba, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

        Kingree v. State, 228 Ga. App. 71, 72 (2) (491 SE2d 123) (1997).

       See Shapiro v. State, 233 Ga. App. 620, 621 (2) (504 SE2d 719) (1998).

       See Lee v. State, 270 Ga. 798, 803 (7) (514 SE2d 1) (1999) (flight is a circumstance that may give rise to an articulable suspicion of criminal activity so as to authorize a brief investigative stop).

       See Redd v. State, 229 Ga. App. 364 (494 SE2d 31) (1997); McDaniel v. State, 227 Ga. App. 364, 365-367 (489 SE2d 112) (1997).


author: Eldridge, Judge.

text:
    A00A0311.
    AMOS et al. v. CITY OF BUTLER.
    (529 SE2d 420)
   Eldridge, Judge.

William, Jayne, and Laura Amos, partners in Amos Investments, owned a house at 602 East Main Street in Butler and sought to recover damages from the City of Butler for water damage to the property, which resulted when the City turned the water back on at the meter without giving them notice. The plaintiffs had turned the water to the house off at the meter, because they suspected a leaky faucet in the house and did not have time to fix it. The City replaced the water meters in the area and replaced the plaintiffs’ meter as well, turning the water back on to the house when the replacement was finished. There was no leaky faucet, but a leaky pipe, which later burst, flooding the property. The question presented is did the City breach any duty by turning the water back on without notice to the plaintiffs? The trial court did not err in granting summary judgment.

In spring 1996, Jayne Amos discovered dampness under the kitchen sink. Amos called Scott Stalnaker, her handyman, and he came to inspect. Stalnaker found dampness under the kitchen cabinet and turned the water to the house off at the meter until he could make repairs. Neither Amos nor Stalnaker notified the City of Butler that the water had been cut off to prevent a leak and was to remain off until further notice.

In early June 1996, the City of Butler Water Department began replacing water meters in the area and replaced the meter at the Amos property. The City employees did not notify the plaintiffs that the meter had been replaced and that the water had been turned back on by City employees. The City of Butler has an ordinance that states “[u]nder normal conditions the consumer will be notified of any anticipated interruptions of service by the City of Butler.” In 1980, the City of Butler passed an ordinance requiring each residence to have a water shut-off valve secondary to the meter shut-off valve. The testimony of the City employees conflicted as to whether they turned the water back on after replacing the meter.

On June 14, 1996, Jayne Amos visited the property and found that it was flooded; that the water had been turned on at the meter; and that a pipe had burst. Neither Stalnaker nor the plaintiffs had turned the water back on at the meter. Over 90,000 gallons of water had flooded the house since the meter had been changed.

1. The plaintiffs’ first enumeration of error is that the trial court erred in finding “that no issue as to any material fact existed regarding the [plaintiffs’] allegations of the City’s actions and negligence.” We find that the City of Butler violated no duty to the plaintiffs in cutting the water on without notice to them.

To state a cause of action for negligence in Georgia, the following elements are essential: “(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.” Lee Street Auto Sales v. Warren, 102 Ga. App. 345 (1) (116 SE2d 243) (1960).

Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Negligence consists of exposing someone to whom a duty of care is owed to a foreseeable, unreasonable probability of harm. Foresight requires the ability to anticipate a risk of harm from the conduct in some form. See Ellington v. Tolar Constr. Co., 237 Ga. 235 (227 SE2d 336) (1976). Thus, the legal duty to exercise ordinary care arises from the foreseeable, unreasonable risk of harm from such conduct. See Landis v. Rockdale County, 206 Ga. App. 876 (427 SE2d 286) (1992). Negligence is predicated on what should be anticipated, rather than on what happened, because one is not bound to anticipate or foresee and provide against what is unlikely, remote, slightly probable, or slightly possible. Brogdon v. Wal-Mart Stores, 230 Ga. App. 474 (496 SE2d 499) (1998). “No matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that it should not have done, or failed to do something that it should have done pursuant to the duty owed to the plaintiff.” (Citations and punctuation omitted.) City of Douglasville v. Queen, 270 Ga. 770, 771 (1) (514 SE2d 195) (1999).

In this case, the City of Butler was under a duty to furnish water to the plaintiffs at this house through the City’s meter, so long as they paid their water bill. The City had no reason to foresee that the plaintiffs had a water leak in their house or that they had not installed a secondary shut-off valve in compliance with the City ordinance. When the City installed a new water meter and cut the water flow back on, therefore, it had no reason to reasonably foresee that normal water service to the plaintiffs posed any risk of harm to either person or property and performed the duty owed to the plaintiffs, because providing water constituted the exercise of the City’s duty. It was under no duty to anticipate the consequences of the normal furnishing of water to the plaintiffs.

Decided February 9, 2000 —

Reconsideration denied February 24, 2000

Sell & Melton, Robert D. McCullers, Kevin T. Brown, for appellants.

Chambless, Higdon & Carson, Thomas F. Richardson, John J. Makowski, for appellee.

■ The plaintiffs contend that the City of Butler was under a duty to give them notice of the disruption of water services, which notice would have allowed them to act to discover the leak, fix the leak, or prevent the water from being cut back on to the house after the meter was replaced. The ordinance, however, imposed no mandatory duty on the City but, instead, constituted a directory act for the convenience of the customer, because notice did not have to be given in all cases. See McLendon v. Everett, 205 Ga. 713 (55 SE2d 119) (1949); Donaldson v. Dept. of Transp., 236 Ga. App. 411 (511 SE2d 210) (1999). The failure to provide notice did not constitute negligence per se, establishing a standard of ordinary care, because the ordinance was not intended for the protection of the customer, only their convenience. See Central Anesthesia Assoc., P.C. v. Worthy, 173 Ga. App. 150 (325 SE2d 819) (1984), aff’d, 254 Ga. 728 (333 SE2d 829) (1985).

2. Plaintiffs’ second enumeration regarding sovereign immunity of the City of Butler has been rendered moot by Division 1.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Andrews, Presiding Judge.

text:
    A99A1641.
    GWINNETT-CLUB ASSOCIATES, L.P. v. SOUTHERN ELECTRIC SUPPLY COMPANY, INC.
    (529 SE2d 636)
   Andrews, Presiding Judge.

Gwinnett-Club Associates, L.P. (Gwinnett-Club) appeals from the trial court’s judgment entered after a bench trial, finding that Southern Electric Supply Company, Inc. (Southern Electric) had fully complied with OCGA § 44-14-361.1 of Georgia’s Materialman’s Lien Statute and granting it a judgment in rem against the real property owned by Gwinnett-Club. Because we conclude that Southern Electric was required to file a notice of commencement of suit against the contractor and failed to do so, we reverse.

The parties agreed to allow the trial court to decide this case on stipulated facts. A review of those facts shows that the case arose when Gwinnett-Club contracted with Cajun Electric (Cajun) to furnish improvements for an apartment project. Cajun bought materials from Southern Electric totaling $70,997.23 but failed to pay for them. Southern Electric filed a materialman’s lien against the improved property in Gwinnett County for the $70,997.23 on January 30,1996, in accordance with OCGA § 44-14-361.1. On May 6, 1996, Southern Electric filed a complaint against Cajun in Clayton County State Court in accordance with OCGA § 44-14-361.1 (a) (3). But, Southern Electric did not comply with the requirement of OCGA § 44-14-361.1 (a) (3) that it file a notice of commencement of the action with the Superior Court of Gwinnett County, the county in which the lien was filed. Southern Electric claimed that it did not file the required notice because it received notice that Cajun had filed bankruptcy and the automatic stay provisions were in effect. The notice sent to all creditors stated that creditors were prohibited from taking certain actions against the debtor, among which were taking action against the debtor to collect money owed or starting or continuing foreclosure actions or repossessions.

Then, in accordance with OCGA § 44-14-361.1 (a) (4), Southern Electric filed this complaint in Cobb County against the property belonging to Gwinnett-Club. Southern Electric did file a notice of commencement of suit against Gwinnett-Club with the clerk of Superior Court of Gwinnett County.

' Gwinnett-Club argued below and now argues on appeal that Southern Electric’s failure to file a notice of commencement of the suit against Cajun precludes it from now enforcing its materialman’s lien against Gwinnett-Club’s property. We agree.

Once a lien has been filed, the lienholder must file suit against the account debtor within 12 months. OCGA § 44-14-361.1 (a) (3). Southern Electric filed suit against Cajun within the 12 months. Then, within 14 days of filing suit, the lienholder must file a notice of commencement of suit in the records where the lien is recorded. OCGA § 44-14-361.1 (a) (3). Southern Electric failed to do this.

OCGA § 44-14-361.1 (a) (4) provides that if the account debtor is adjudicated bankrupt and no final judgment can be obtained against it, then the lien claimant may file an action in rem against the property. This section also provides that the lien claimant must file a notice with the clerk of the superior court in the county where the lien was filed. There is no dispute that Southern Electric complied with the provisions for filing the in rem action.

We note first that a materialman’s lien effectively permits the transfer of liability from the person who actually contracted with the materialman for materials to be used in improving real estate to the owner of the improved property, even though that property owner usually will have no relationship with the materialman, contractually or otherwise. Consequently, we have long recognized that the statutes involving materialman’s liens must be strictly construed in favor of the property owner and against the materialman. Palmer v. Duncan Wholesale, 262 Ga. 28, 29-30 (413 SE2d 437) (1992). Further, the materialman’s statute requires strict compliance. Womack Indus, v. B & A Equip. Co., 199 Ga. App. 660, 661 (405 SE2d 880) (1991). Before a materialman’s lien can be allowed, the lien claimant must show compliance with all conditions of the statute. Kwilecki v. Young, 180 Ga. 602, 604 (180 SE 137) (1935); Allied Elec. Contractors v. Kern & Co., 184 Ga. App. 747, 748 (362 SE2d 452) (1987). OCGA § 44-14-361.1 (a). Filing the notice of commencement of the action is a prerequisite to the enforceability of the lien, and at the time the lienholder fails to file the notice, the lien becomes unenforceable. Palmer, supra at 30-31; Eurostyle v. Jones, 197 Ga. App. 188 (397 SE2d 620) (1990).

Southern Electric claims that the automatic stay entered in Cajun’s bankruptcy case prohibited the filing of the notice of commencement. We find nothing in Section 362 of the Bankruptcy Code which forbids the filing of the notice of commencement.

Section 362 operates as a stay in pertinent part as follows: any action or proceeding to recover a claim against the debtor or the property of the estate is stayed, as is the enforcement of any claim against the debtor or the property of the estate; also, any act to create, perfect or enforce any lien against the property of the debtor or the estate, and any act to collect or assess a claim against the debtor that arose before the commencement of the bankruptcy are stayed, 11 USC § 362.

There is nothing in Section 362 which prohibits the perfecting of a lien against property that does not belong to the debtor or to the bankruptcy estate. The notice is simply for the purpose of

providing potential purchasers of the property such constructive notice as would enable them to determine whether the claim of lien, which would exist for only 12 months absent the filing of a suit to collect the underlying indebtedness within that period, was or was not still extant.

Ford Motor Co. v. Noland Co., 186 Ga. App. 541, 542 (368 SE2d 763) (1988). Moreover, Southern Electric cites to no case law in support of this contention, and we find none.

Further, case law supports Gwinnett-Club’s argument that when the notice of commencement in the first case was not filed, then the claim of lien was lost. In Metromont Materials Corp. v. Cargill, Inc., 221 Ga. App. 853 (473 SE2d 498) (1996), Cargill contracted with Henschien, Johnson & Crombie of Georgia, Inc. (HJC) to build a plant on Cargill’s property. HJC contracted with Metromont to supply concrete for the project. HJC then assigned its contractor role to HJC-Georgia. Metromont filed a claim of lien against Cargill’s property because it was never paid for the concrete it supplied. Cargill filed an interpleader and declaratory judgment action against Metromont. Metromont answered and cross-claimed against HJC-Georgia for the amount of the lien claim but did not file a notice of commencement. When Metromont discovered that its lien was ineffective for failure to file the notice, it dismissed and refiled the cross-claim against HJC-Georgia and also filed a cross-claim against HJC, with the appropriate notices of commencement. This Court held that as of the date the notice requirement went unmet, the lien was extinguished and any action Metromont took to enforce the lien after the notice period expired was ineffectual. Id. at 855.

Decided February 11, 2000

Reconsideration denied February 28,2000

Rachelson & White, Ira L. Rachelson, for appellant.

Dock H. Davis, for appellee.

In reaching its decision, this Court relied on Palmer, supra. In Palmer, the lienholder filed suit against the account debtor under OCGA § 44-14-361.1 (a) (3) but failed to file a notice of commencement. The account debtor later declared bankruptcy, and the lienholder filed an in rem action against the improved property under OCGA § 44-14-361.1 (a) (4). The court held that at the time the lienholder failed to follow the statutory provision requiring filing of a notice of commencement, the lien became unenforceable and the subsequent filing of an in rem action “could not breathe new life into the extinguished right to a lien. . . .” Id. at 31 (2). Southern Electric argues that the lienholder in Palmer did not receive notice of an automatic stay from the bankruptcy court before the time period for filing the notice elapsed. As discussed above, we see nothing in the automatic stay provision which prohibits the perfection of a security interest in the property of a third party.

Accordingly, in light of the requirement that statutes involving materialman’s liens must be strictly construed in favor of the property owner and against the materialman, we conclude that once Southern Electric failed to file a notice of commencement of its action against the contractor, Cajun, the claim of lien was extinguished. Therefore, we reverse the trial court’s judgment in rem against Gwinnett-Club’s property.

Judgment reversed. Ruffin and Ellington, JJ., concur.


author: Phipps, Judge.

text:
    A99A1974.
    DOLLAR v. THE STATE.
    (529 SE2d 665)
   Phipps, Judge.

Harry Dollar appeals his convictions of felony possession of marijuana and trafficking in cocaine. First, he asserts that the trial court erred when it denied his motion to suppress. He claims that there was no probable cause for the warrant which authorized the search of his home. Second, he asserts that the trial court erred when it denied his motion for directed verdict of acquittal on the felony possession of marijuana charge. Because we find that there was probable cause for the search warrant and that there was sufficient evidence to deny the motion for directed verdict, we affirm.

About September 1997, Lieutenant Tony Brown of the Coweta County Sheriff’s Department “received complaints from several citizens . . .” regarding suspected drug traffic at Dollar’s home at 23 Highland Park Drive, Newnan. About October 3, a confidential informant purchased drugs from Dollar at that address. Five to ten days later, Brown sent the informant back to purchase more drugs. But the informant was unable to make a purchase, because Dollar said he was almost out of drugs and did not expect to receive more for a while.

On October 27, Brown received a call from Detective Engen of the LaPalma, California Police Department. Engen informed Brown that the LaPalma police had intercepted a Federal Express package containing ten to twelve pounds of marijuana that was intended to be shipped to 23 Highland Park Drive, Newnan, Georgia. Engen explained that the package was originally addressed to J. Ragland at 23 Highland Drive in Newnan but the package had been returned to Federal Express in California. A man identifying himself as Watson or Washington had called Federal Express in California with the routing number for the package and stated that the correct address for delivery was 23 Highland Park Drive and not 23 Highland Drive. A Federal Express employee became suspicious of the package, opened it, and saw the marijuana, and then Federal Express contacted the LaPalma police.

Engen shipped the package to Brown, and Brown procured a search warrant for 23 Highland Park Drive from a Coweta County magistrate. Brown and several other officers then performed a controlled delivery. One officer, disguised as a Federal Express employee, delivered the package to the door, while Brown and others waited nearby. Dollar came to the door, accepted the package, and, without prompting, signed for it in the name of J. Ragland, the false name to which it was addressed.

Immediately afterward, the search warrant was executed and Dollar was placed under arrest. Dollar had seven bags of cocaine in his left front pocket. Fifty-two bags of cocaine and a bag of marijuana were found on a bedroom dresser, four large bags of cocaine were found under a bed, and one bag of marijuana was found in the living room. After he was read his rights, when the police suggested that his girlfriend or wife might also be involved, Dollar stated that all of the drugs were his.

1. The search warrant was issued based on the following recital of probable cause in Brown’s affidavit:

Within the past month affiant has received information from a reliable source that marijuana is being kept and sold from the residence at 23 Highland Park Dr. Within the past month affiant has made a purchase of marijuana from this residence using a reliable informant. Within the past 2 days affiant received a call from Inv. J. Ames Engen in LaPalma[,] California. Engen stated that his department had intercepted a package that was being sent [F]ed-[E]x to the residence at 23 Highland Park Dr. The box contains 12 pounds of marijuana. Engen has since mailed the package to affiant and affiant is now in possession of this package. Affiant on this date plans to make a delivery of the package to this residence and arrest the recipient of the package. Due to previous information from a reliable source who has been known to affiant for over a year and has proven reliable on many occasions and the large amount of marijuana in the package affiant has probable cause to belief [sic] that marijuana is being sold from this house and now request [sic] a search warrant from any marijuana and currency from the sell [sic] of marijuana.

Dollar challenges the validity of the search warrant on two grounds. First, he asserts that Brown did not present the magistrate with any facts from which the magistrate could independently assess the reliability of the informant and the information he supplied. Second, Dollar asserts Brown misrepresented the evidence supporting probable cause by withholding information that exculpated Dollar.

(a) There is no absolute requirement that a search warrant affiant state circumstances which demonstrate the reliability of the informant and his information. Those factors are highly relevant considerations, but the applicable test is based on the totality of the circumstances

“whether, given all the circumstances set forth in the affidavit before [the magistrate], including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Also, a showing that an informant and his information are reliable is not limited to proof of the informant’s veracity and the basis of his knowledge. Reliability may be shown by corroboration of the informant’s tip.

Although Brown’s affidavit did not state facts relevant to the informant’s veracity and the basis of his knowledge, under the totality of the circumstances the affidavit provided an ample basis for a finding of probable cause. The informant’s communication that drugs were being kept and sold at 23 Highland Park Drive was corroborated when the informant purchased marijuana there and gave it to Brown, when Dollar told the informant that he expected to receive more drugs in the future, and, subsequently, when a package shipped through Federal Express and intended for delivery to that address was intercepted and found to contain a large quantity of marijuana.

(b) Dollar asserts that Brown failed to disclose the following exculpatory information: (1) the Federal Express package was addressed to J. Ragland and not to Harry Dollar; (2) the address written on the package was 23 Highland Drive, which is another street in Newnan; (3) the information that the package should have been sent to 23 Highland Park Drive was received from an anonymous source and reached Brown through hearsay channels; and (4) an incident summary and a handwritten note prepared by Detective Engen indicated that the intended address for the package was 23 Highland Place.

Where the defendant has shown that information material to the determination of probable cause was omitted for the purpose of misleading the magistrate, the reviewing court should delete any false statements and include omitted truthful material in determining whether to invalidate the warrant. The warrant should be invalidated if probable cause would no longer exist after the inclusions and deletions.

Nothing Dollar asserts shows that material information was purposefully withheld from the magistrate. First, no one would expect a package of illegal drugs to be sent with the recipient’s correct name on the package. Second, the 23 Highland Drive address apparently was not the correct address for the recipient, because the package had been returned to Federal Express. The names Highland Park Drive and Highland Drive are so similar that the two addresses could be confused easily. Third, the address provided by the anonymous caller was reliable. The caller gave the correct shipping number for the package, and his information that the package had an incorrect address was corroborated by the return of the package to Federal Express. Finally, the record does not show that at the time Brown went before the magistrate he was aware of any discrepancy between the address Engen gave him and the address Engen recorded on his note and typed on his incident summary. The suppression hearing record shows that when Brown went before the magistrate, he had spoken to Engen by telephone and had received a narrative report from him by fax. In both instances, the correct address was communicated to be 23 Highland Park Drive. The record of the suppression hearing does not show when Brown received copies of Engen’s handwritten note and incident summary. We find probable cause existed for the search warrant despite the issues raised by Dollar.

2. Dollar asserts that his motion for directed verdict on the felony marijuana possession charge was incorrectly denied because the State’s evidence failed to prove that he was aware of the contents of the Federal Express package when he accepted it. Viewing the evidence in the light most favorable to the verdict, we find that there was sufficient evidence for a rational trier of fact to conclude that Dollar knew the contents of the package and was guilty beyond a reasonable doubt of felony possession of marijuana.

The evidence at trial showed that Dollar was active in drug trafficking. When the search warrant was executed, the officers found inside Dollar’s home a large quantity of cocaine, an unspecified amount of marijuana, a scale commonly used for measuring drugs, small plastic bags commonly used for packaging drugs, and a scanner capable of picking up police radio communications. Dollar signed for the Federal Express package in the false name to which it was addressed, J. Ragland, without being prompted to do so. And finally, Dollar’s statement at the scene that all of the drugs were his did not exclude the marijuana in the Federal Express package.

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

Decided February 15, 2000 —

Reconsideration denied February 28, 2000

Timothy T Herring, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

        Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).

       (Citation omitted.) State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984) .

       See Stewart v. State, 217 Ga. App. 45, 47 (456 SE2d 693) (1995).

       Id.

        Bickley v. State, 227 Ga. App. 413, 414 (1) (a) (489 SE2d 167) (1997).

        Redding v. State, 192 Ga. App. 87, 88 (383 SE2d 640) (1989).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


text:
    A00A0070.
    NIX v. COX ENTERPRISES, INC. et al.
    (529 SE2d 426)
   Eldridge, Judge.

Franklin R. Nix, an attorney, sued Cox Enterprises, Inc. d/b/a Atlanta Constitution, Atlanta Journal, and Atlanta Journal-Constitution and Rochelle Bozman for libel per se in placing him in a false light by listing him in two published articles on March 9, 1998, as one of seven examples of rogue lawyers and in accusing him of attempting to solicit clients from another lawyer. The defendants placed his name immediately after the account of six lawyers charged with stealing their clients’ money or convicted of felonies. The article also stated that these rogue lawyers needed policing, were crooked, inept, arrogant, dishonest, or did shoddy work. The defendants charged Nix with soliciting another lawyer’s clients and, immediately after listing such examples of rogue lawyers, inserted two lines regarding litigation between Nix and another lawyer over communication with the other lawyer’s client without dissociating language, so that any reader could infer that the examples and statements about rogue lawyers also referred to Nix as coming within the same description of characteristics of the rogue lawyer listed before him. The article read as follows:

Another attorney, Franklin R. Nix, was scolded publicly by Fulton Superior Court Judge Wendy L. Shoob when Nix solicited business by sending letters to disgruntled Olympic vendors urging them to drop their current attorney and bring their business to them. Nix invoked the name of defense attorney Bobby Lee Cook in the letter to convince the potential clients to jump ship, and the attorney whose clients received the letters, Louis Levenson, has sued Nix, alleging tortious interference with his contracts and defamation. Both lawsuits are pending in Fulton Superior Court.

Nix stated his complaint under three theories of liability: defamation, invasion of privacy, and intentional infliction of emotional distress. The defendants answered and filed a motion to dismiss. The defendants attached to their answer some 31 pages of exhibits: copies of the articles, a Fulton County Daily Report story about the lawsuit between Levenson and Nix, and copies of related correspondence. To the brief in support of the motion to dismiss, the defendants also attached 195 pages of articles, correspondence, the entire record of the Levenson v. Nix litigation with the other lawyer in Fulton Superior Court, as well as the transcript of the hearing in such case. Nix filed his affidavit with exhibits attached.

On July 31, 1998, the trial court entered an order dismissing plaintiff’s complaint. On August 28, 1998, Nix appealed. While the trial court’s order made no mention of reliance on matters outside the record, the defendants’ motion and brief had as the basis of their defense that there had been an accurate reporting of what took place in the litigation in Levenson v. Nix, which could not be determined absent reference to such matters outside the pleadings.

Nix’s sole enumeration of error is that the trial court erred in dismissing his complaint for failure to state a claim upon which relief can be granted. We vacate and remand because the trial court, of necessity to reach this judgment, considered matters outside the pleadings to determine to dismiss the complaint without first giving notice and time to respond that the motion would be treated as a motion for summary judgment.

The defendants assert in their answer and brief in support of their motion to dismiss defenses that what they published came out in the pending lawsuit, Levenson v. Nix, and that it was substantially accurate. Consideration of the answer would make the motion one for judgment on the pleadings. OCGA § 9-11-12 (c). Consideration of matters outside the pleadings also converts such motion to one for summary judgment. OCGA § 9-11-12 (c). To determine such defenses on motion to dismiss for failure to state a claim or judgment on the pleadings instead of on summary judgment, however, requires that the trial court go outside the complaint/answer and examine the exhibits attached to the brief in support of the motion to dismiss. See OCGA §§ 9-11-12 (b), (c); 9-11-56.

Under OCGA § 9-11-12 (b) (6), considering such matters outside the pleadings converts the motion to dismiss into a motion for summary judgment under OCGA § 9-11-56, requiring notice of the conversion of the motion and an opportunity to submit evidence and to be heard within 30 days. See Blasingame v. Blasingame, 249 Ga. 791, 792 (294 SE2d 519) (1982); Davidson v. American Fitness Centers, 171 Ga. App. 691, 692-693 (2) (320 SE2d 824) (1984); see also Charming Shoppes v. Black, 252 Ga. 207, 208 (312 SE2d 604) (1984). The trial court did not do this and entered the order as a grant of a motion to dismiss, although to do so, the trial court had to consider matters not in the pleadings, i.e., evidence that the article was based upon a judicial proceeding and was substantially accurate.

Despite the differences from federal practice in regard to a motion for dismissal for failure to state a claim, the defendants invite this Court to depart from long-established Georgia law and practice and to look to federal cases that allow on motion to dismiss consideration of “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.” Branch v. Tunnell, 14 F3d 449, 454 (9th Cir. 1994). Defendants proffer the entire transcript and record of Levenson v. Nix, which were outside the pleadings. Such practice is not proper in Georgia absent consent of the parties to convert the motion into one for summary judgment, which did not occur here. Such practice denies the respondent notice and opportunity to submit evidence on a timely motion for summary judgment. See American Car Rentals v. Walden Leasing, 215 Ga. App. 621, 622 (451 SE2d 537) (1994); Sibley v. City of Atlanta, 152 Ga. App. 723, 724 (4) (263 SE2d 698) (1979); Myers v. McLarty, 150 Ga. App. 432, 433-434 (258 SE2d 56) (1979). Absent the transcript of the proceedings in the superior court, the trial court would not be authorized to grant the motion to dismiss or judgment on the pleadings, because a motion to dismiss with prejudice “should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim.” (Citations omitted; emphasis in original.) Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 92 (1) (483 SE2d 602) (1997).

Under OCGA § 9-11-12 (b) (6), a motion to dismiss for failure to state a claim upon which relief can be granted should be sustained only when (1) the allegations of the complaint disclosed with certainty that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the claim and (2) the movant established that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding such motion, all pleadings must be construed most favorably to the party who filed them, and all doubts regarding the pleadings must be resolved in the filing party’s favor. Mooney v. Mooney, 235 Ga. App. 117 (508 SE2d 766) (1998); see also Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997); Cellular One v. Emanuel County, 227 Ga. App. 197-198 (489 SE2d 50) (1997). In this case, the trial court failed to make such favorable inferences in regard to the issues of defamation or to follow the standard for granting a motion to dismiss.

Where the trial court considers matters outside the pleadings, as in this case, the motion to dismiss becomes a motion for summary judgment and shall be treated under OCGA § 9-11-56. See OCGA § 9-11-12 (b); Sumner v. Dept. of Human Resources, supra at 92-94 (2). The trial court shall give 30 days notice from the time the court considers matters outside the pleadings sua sponte converting the motion to dismiss into a motion for summary judgment to permit the respondent an opportunity to respond as required under OCGA § 9-11-56. Id. at 93. Here the record is silent as to notice being given to the plaintiff by the trial court of such intent to change the nature of the motion.

Decided February 9, 2000 —

Reconsideration denied February 28, 2000

Garland, Samuel & Loeb, Edward T. M. Garland, Nelson O. Tyrone III, for appellant.

Dow, Lohnes & Albertson, Peter C. Canfield, Thomas M. Clyde, for appellees.

The judgment in this case is hereby vacated and the case remanded with the direction that the trial court reconsider the motion to dismiss. If the trial court again determines that matters are to be considered and the motion to dismiss or judgment on the pleadings is to be converted as a motion for summary judgment, Nix shall then be given the requisite statutory notice and opportunity to present evidence prior to any ruling being made as to the disposition of said motion.

Judgment vacated and case remanded with direction.

Blackburn, P. J., and Barnes, J., concur.


author: McMURRAY, Presiding Judge.

text:
    A00A0001.
    BAILEY et al. v. JIM’S MINIT MARKET, INC.
    (529 SE2d 436)
   McMURRAY, Presiding Judge.

On February 3, 1995, Tammy Almond took her ten-year-old son, Michael Adam Erwin (“Adam”), to Wal-Mart to buy a Daisy C02-powered BB pistol. The next day, Adam went by himself to Jim’s Minit Market, Inc. (“Market”), where an unnamed male cashier permitted him to purchase BBs, despite the objection of a female cashier, Gina Duck. Afterward, Adam went home and began playing cowboys and Indians, shooting his loaded pistol. Almond, a single parent, had gone to Wal-Mart, leaving Adam unsupervised.

Seven-year-old Beau Bailey (“Beau”), who lived across the street from Adam, was playing cowboy but stayed in his front yard. Beau had a cap gun that shot caps but not BBs or pellets. Adam started shooting at Beau. After hitting Beau in the leg with a BB, Adam crossed the street and went onto Beau’s front yard. Beau started running toward the mailbox, and Adam gave chase. When Beau looked back, Adam shot Beau in the eye, causing permanent loss of peripheral vision.

In March 1995, a petition for delinquency was filed against Adam in the Juvenile Court of Elbert County, alleging delinquent acts that if committed by an adult would constitute the offenses of aggravated assault and discharging a firearm near a public street. The court placed Adam on intensive probation and ordered the gun destroyed, among other things.

On January 24, 1997, Beau’s parents, George Bailey and Sunny Bailey, filed suit against Adam, his mother, and Market, alleging, inter alia, that Market’s male cashier acted negligently and recklessly when he sold BBs to Adam. Market moved for summary judgment, which was granted. This appeal followed. Held:

The Baileys argue that the trial court erred in ruling, as a matter of law, that Market’s sale of BBs to Adam was not a proximate cause of Beau’s injury. We agree and reverse.

Kecently this Court held that “[p]roximate cause is properly reserved for the jury and can only be appropriately addressed on summary judgment in ‘plain and indisputable cases.’ ” Schernekau v. McNabb, 220 Ga. App. 772, 773 (470 SE2d 296). This Court’s reasoning was based in part on Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569, 570 (398 SE2d 16), which held that

whether proximate cause exists in a given case is a mixed question of law and fact. It requires both factfinding in the “what happened” sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are most appropriately made by a jury. . . .

Bearing these principles in mind, we turn our attention to the facts of the case sub judice. In opposition to Market’s motion for summary judgment, the Baileys produced an affidavit from Duck, Market’s employee who had refused to sell BBs to Adam on the day he shot Beau. Duck attested to her belief that selling BBs to a child unaccompanied by an adult “created a very dangerous situation.” Duck further stated that she voiced her concerns to her male co-employee but he ignored them. Duck also deposed that she had previously discussed Market’s practice of selling BBs to unaccompanied minors with a manager who agreed that it was dangerous. However, Market refused to discontinue this practice, according to Duck.

In response to this affidavit, Market argued that the sole proximate cause of Beau’s injury was Almond’s negligent failure to supervise her son Adam and/or Adam’s intentional act of shooting Beau. Market also contended it could not be held liable because it had no knowledge of Adam’s propensity for dangerous behavior.

Market’s position incorrectly assumes that such knowledge is essential to a finding of liability.

“With reference to foreseeability of injury, the correct rule is that in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result.” (Citations and punctuation omitted.) Wallace v. Sears, Roebuck & Co., 196 Ga. App. 221, 222 (396 SE2d 41) (1990).

Schernekau v. McNabb, 220 Ga. App. at 773, supra.

The case sub judice thus hinges on whether Market’s male employee reasonably could have foreseen that an unsupervised ten-year-old boy might load BBs into a BB pistol or BB gun and shoot another child, causing serious injury. We can find no Georgia case precisely on point. However, similar scenarios occurred in Miceli v. Brown’s Sporting Goods, Ill. App. No. 1-93-4188 (unpublished opinion) (1995 Ill. App. LEXIS 723), and Salvi v. Montgomery Ward & Co., 140 Ill. App.3d 896, 909 (489 NE2d 394). In Miceli, a child one month shy of his sixteenth birthday was struck in the eye by a BB that had ricocheted off a lamppost. He had been shooting at beer bottles that had been placed atop the post. The child had purchased the gun from Brown’s and the BBs from Sportmart, Inc., a retail sporting goods chain. The child’s parents sued both companies. The court cited Salvi for the proposition that it was reasonably foreseeable that the sale of a BB gun to a minor could result in the minor handling the gun negligently, causing injury. Id. at 909, 911. Whether or not the sale of the gun was a proximate cause of the child’s injuries was ruled a fact question, and summary judgment that had been granted to Brown’s was reversed. Summary judgment to Sportmart was affirmed, but for the reason that it had substantially complied with its policy prohibiting the sale of BBs to minors less than 16 years old. That policy reflects Sportmart’s foresight that an unsupervised child might use the BBs to load a gun and injure himself or others.

In the case sub judice, Market would have this Court find, as a matter of law, that it could not reasonably foresee that an unsupervised boy of such a tender age as Adam could wreak havoc with a box of BBs. This we cannot do. It would require us to ignore the fact that “children are drawn to objects like air rifles . . . [and] are prone to horseplay and consequential injury.” Schernekau v. McNabb, 220 Ga. App. at 773, supra.

Decided February 9, 2000 —

Reconsideration denied February 29,2000.

Feldman & Associates, Monroe J. Feldman, Douglas R. Sand-berg, for appellants.

McClure, Ramsay & Dickerson, John A. Dickerson, for appellee.

We reject Market’s argument that negligent parental supervision constituted an intervening cause barring its liability as a matter of law.

“ Tf the original negligent actor reasonably could have anticipated or foreseen the intervening act and its consequences, then the intervening act of negligence will not relieve the original actor from liability for the consequences resulting from the intervening act. That is a jury question.’ (Cits.)”

Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 569 (1) (499 SE2d 722).

Whether Beau’s injury was a reasonably foreseeable consequence of Market’s sale of BBs to ten-year-old Adam is a jury question. The trial court erred in ruling otherwise.

Judgment reversed.

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


text:
    A00A0450.
    A00A0451.
    HOWARD v. GOURMET CONCEPTS INTERNATIONAL, INC. et al. HOWARD v. DeKALB COUNTY.
    (529 SE2d 406)
   Eldridge, Judge.

On November 17, 1995, Teresa G. Howard, plaintiff-appellant, received serious personal injuries when she attempted to turn left from Taitón Drive into the southbound lane of Montreal Circle, where she was struck by Matthew Upchurch, driving a truck for Courier Express/Atlanta, Inc. and traveling north on Montreal Circle. In addition to Upchurch and Courier Express, Howard sued the owner of the property on Montreal Circle just south of Taitón Drive, Gourmet Concepts International, Inc.; its landscaping service, Elias Garden Care, Inc. d/b/a Atlanta Scapes; and DeKalb County for maintaining a public nuisance. Howard contended that the trees, bushes, and grass on this property obstructed the view of the northbound lane of travel on Montreal Circle, so that neither driver could see the other around the curve in the road. Some of the obstruction existed on the right-of-way of DeKalb County. Although Howard could not see down the northbound lane because of the greenery, she pulled across this lane and into the southbound lane of Montreal Circle, where she was struck. The trial court granted summary judgment to Gourmet Concepts, Atlanta Scapes, and DeKalb County. The issues presented were: (a) did a nuisance exist; (b) did notice of a nuisance occur; (c) was the nuisance the proximate cause of plaintiff’s injuries; and (d) could DeKalb County be liable in nuisance to her for personal injuries. Jury issues existed as to (a) and (b), and we answer (c) and (d) in the negative. Therefore, we affirm the trial court’s grant of summary judgment.

Case No. A00A0450

1. Howard’s first enumeration of error is that “[t]he trial court erred by granting summary judgment to [Gourmet Concepts and Atlanta Scapes] by finding [Howard] did not meet her burden of proof to show the allegedly offending greenery on Gourmet Concept’s property was unauthorized.”

(a) OCGA § 32-6-51, prohibiting the maintenance of vision-obstruction objects on or adjacent to a road right-of-way, applies to planted trees, shrubbery, and vegetation as well as to signs, structures, or constructed objects. The maintenance of such obstruction is negligence when it creates a traffic hazard and is unauthorized. However, if the statutory elements have not been met, then neither nuisance nor negligence arises under such Act. See United Refrigerated Svcs. v. Emmer, 218 Ga. App. 865-866 (1) (463 SE2d 535) (1995). To recover at trial, plaintiff must show that the objects on private property adjacent to the right-of-way were unauthorized. “[S] tructures on private property adjoining road rights-of-way only become unlawful under OCGA § 32-6-51 if they obstruct a clear view of roads in such a manner as to constitute a traffic hazard, and they are unauthorized” (Citation and punctuation omitted; emphasis in original.) Id. at 865. See also Williams v. Scruggs Co., 213 Ga. App. 470, 471-472 (1) (445 SE2d 287) (1994); Smith v. Hiawassee Hardware Co., 167 Ga. App. 70, 71-72 (1) (305 SE2d 805) (1983).

Also, Howard contends that the planting or growth extended onto the public right-of-way, which is growth from private property, obstructing motorists’ views in violation of DeKalb County Code § 17-6 (a), which prohibits obstructions on the public right-of-way. Thus, a jury issue exists as to whether the vegetation constituted a traffic hazard and, depending upon the location, whether the obstruction was authorized or unauthorized. See Williams v. Scruggs Co., supra at 472; Smith v. Hiawassee Hardware Co., supra at 72.

There exists a jury issue as to whether or not the vegetation had grown sufficiently, on private property, the right-of-way, or both, to create a visual obstruction constituting a traffic hazard under the facts of this case. See OCGA § 32-6-51; United Refrigerated Svcs. v. Emmer, supra at 865-866; Williams v. Scruggs Co., supra; Smith v. Hiawassee Hardware Co., supra.

(b) Evidence that Gourmet Concepts and Atlanta Scapes lacked knowledge of any prior accidents caused by the vegetation obstruction shifted the burden of coming forward with some evidence to create a disputed issue of fact for the jury to Howard. See OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

Howard came forward, however, with some evidence that the obstruction existed for a considerable period of time. This required a favorable inference to Howard made by the trial court that a public nuisance existed and had existed for sufficient time that Gourmet Concepts and Atlanta Scapes either knew or should have known that it created a.traffic hazard. But Howard failed to show that others had suffered injury from the obstruction so as to constitute a public nuisance that “injures those of the public who may actually come in contact with it.” (Citations and punctuation omitted; emphasis in original.) Zellers v. Theater of the Stars, 171 Ga. App. 406, 408-409 (3) (319 SE2d 553) (1984). See also OCGA § 41-1-2; United Refrigerated Svcs. v. Emmer, supra at 866 (2). Thus, the trial court properly granted summary judgment on such public nuisance issue.

(c) Assuming arguendo that a statutory nuisance existed or a statutory violation under OCGA § 32-6-51 constituted negligence per se, thereby creating a traffic hazard, the defendants presented evidence that the acts and omissions of Upchurch were the sole proximate cause of the collision. The burden of coming forward with some evidence as to the concurrent causation of the collision then shifted to Howard to create an issue of fact from slight evidence that the vegetation constituted a concurrent causative factor in the collision. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, supra. While the greenery may have caused some obstruction of vision in the middle of November, there existed an absence of any competent evidence that any possible obstruction in visibility did, in fact, cause or contribute to the collision. Tuggle v. Helms, 231 Ga. App. 899, 902 (2) (499 SE2d 365) (1998); Cromer v. Hodges, 216 Ga. App. 548, 549 (1) (455 SE2d 94) (1995). The evidence presented creates a strong probability, where reasonable minds cannot differ, that a jury will find that the negligence of Upchurch was the sole proximate cause of the collision. The plain, palpable, and undisputed evidence of the alleged active negligence of Upchurch, i.e., excessive speed when approaching this intersection, failure to maintain control, failure to keep a proper lookout when incomplete visibility may have existed because of the curve and vegetation, and driving over the center of the road on the wrong side of the road, constituted the sole proximate cause of the collision as compared to the alleged passive negligence of the other defendants. Cantrell v. Thurman, 231 Ga. App. 510, 515-516 (7) (499 SE2d 416) (1998); Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 190-191 (2) (470 SE2d 782) (1996); Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576-578 (436 SE2d 690) (1993). The mere occurrence of this collision and the presence of vegetation alongside the road do not create a concurrent proximate cause of the occurrence. City Council of Augusta v. Booker, 229 Ga. App. 566, 567 (1) (494 SE2d 374) (1997). Thus, the trial court properly granted summary judgment.

2. Division 1 controls the remaining enumerations of error.

Case No. A00A0451

3. Howard enumerates as error that the trial court granted summary judgment to DeKalb County.

A county may be liable to an owner in damages to property, either real or personal, through inverse condemnation by a nuisance, created, maintained, or worsened by such county. See DeKalb County v. Orwig, 261 Ga. 137, 138 (1) (402 SE2d 513) (1991); Fulton County v. Wheaton, 252 Ga. 49, 50 (1) (310 SE2d 910) (1984), overruled on other grounds, DeKalb County v. Orwig, supra. The measure of damages in such cases is the same as in condemnation cases. See DeKalb County v. Orwig, supra at 138.

The reason sovereign immunity is not applicable when a nuisance amounts to a taking of property of one of its citizens for public purposes is that inverse condemnation is a form of eminent domain. Ga. Const. of 1983, Art. I, Sec. III, Par. I; Miree v. United States, 242 Ga. 126, 134 (2) (249 SE2d 573) (1978); Woodside v. Fulton County, 223 Ga. 316, 319-321 (1) (155 SE2d 404) (1967).

Fielder v. Rice Constr. Co., 239 Ga. App. 362, 364 (1) (522 SE2d 13) (1999).

Personal injury, however, for purposes of inverse condemnation does not constitute personal property that can be taken. See State Bd. of Ed. v. Drury, 263 Ga. 429, 430-433 (1) (437 SE2d 290) (1993); DeKalb County v. Orwig, supra at 138; Wilmoth v. Henry County, 251 Ga. 643-644 (1) (309 SE2d 126) (1983); Donaldson v. Dept. of Transp., 212 Ga. App. 240, 242 (441 SE2d 473) (1994). Sovereign immunity bars any action for personal injury or wrongful death against a county arising from nuisance or inverse condemnation. See DeKalb County v. Orwig, supra at 138; Kordares v. Gwinnett County, 220 Ga. App. 848, 850-851 (470 SE2d 479) (1996); Canfield v. Cook County, 213 Ga. App. 625, 626 (445 SE2d 375) (1994); Christian v. Monroe County, 203 Ga. App. 342, 343 (1) (417 SE2d 37) (1992). Thus, the trial court properly granted summary judgment to DeKalb County for an alleged nuisance causing personal injury.

Decided February 8, 2000 —

Reconsideration denied February 29,2000

Steven L. Beard, for appellant.

Swift, Currie, McGhee & Hiers, Henry L. Pruett, Johnson, Kayne & Penna, Christopher E. Penna, Derek A. Mendicino, for appellees (case no. A00A0450).

Bernard Knight, Elizabeth T. Marinetti, Daniel S. Digby, for appellee (case no. A00A0451).

4. The other enumerations of error are controlled by Divisions 1 and 3.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Ruffin, Judge.

text:
    A99A1727.
    DUNN v. THE STATE.
    (530 SE2d 236)
   Ruffin, Judge.

Wanda Dunn was convicted of three counts of aggravated assault, one count of aggravated battery, and one count of possession of a firearm during the commission of a crime. She appeals, contending primarily that the trial court erred in excluding testimony of prior difficulties between Dunn and one of the alleged victims. We affirm.

Lewis testified that, on the night of June 24, 1995, she and Katrina Emmanuel were driving in a gray Cadillac when they saw Dunn, in a burgundy Oldsmobile, talking with another woman. According to Lewis, Dunn had previously threatened to shoot Lewis’ brother. After Dunn started yelling out of her car window, Lewis got out of her car and said, “[Wlhat’s going on? Why do you keep threatening me and my family?” Lewis said that Dunn then responded, “[Y]ou just wait right here, bitch, I’ll be right back.” Dunn claimed that Lewis pulled a gun from her car during this encounter, but both Lewis and Emmanuel denied that Lewis had a gun. Lewis then left and picked up her one-year-old daughter, Courtney. Dunn testified that she went home to retrieve a gun because she was scared that she might see Lewis again.

Lewis and Emmanuel testified that, after picking up Courtney, they were driving on Nellieville Road when they saw Dunn in her car at a stop sign. According to Lewis, Dunn pulled behind them and pointed a gun out the window. When Dunn tried to pull up to the side of Lewis’ car, Lewis tried to run her off the road so that she could not shoot into the car. Lewis then sped up to try to get away, at which time she heard Dunn fire a shot. Dunn fired a second shot as Lewis was passing a car in front of her at a stop sign. Lewis turned left onto Fifteenth Avenue and got out of the car along with Emmanuel and Courtney. Dunn fired a third shot and then drove away. Although none of the shots hit Lewis’ car, one of the bullets struck a fourteen-year-old bystander in the eye while she was sitting in a car several hundred feet away, resulting in the loss of the eye.

Dunn testified at trial and gave a different version of events. She testified that, after she went home to get her gun, Lewis pulled in front of her at a stop sign. Dunn said that she tried to pass Lewis’ car but that Lewis “just started stopping [and] swerving . . . trying to keep me from going around her.” Dunn said Lewis went around another car at a stop sign and parked beside a building. Dunn stopped at the stop sign and said, “[B]itch, why you trying to hit my car?” According to Dunn, Lewis then reached under her car seat. Dunn said she thought Lewis “was going to pull the pistol out but I didn’t even give her the chance to.” Dunn pulled her own pistol out and fired a shot. She claimed that she fired only one shot and that the pistol would not fire when she tried a second shot.

Officer Kenneth Booze testified that he interviewed Dunn after the shooting. Dunn admitted to Booze that she had fired at Lewis’ car but claimed she did so in self-defense. When Booze asked Dorm what happened to the gun, she told him that she had given it to a friend to hide. They located this friend, and he showed Booze and Dunn where he had hidden the gun. Dunn told Booze that this was the gun she had used in the shooting. The gun, a Burser .380 caliber automatic pistol, was introduced into evidence at trial, and Dunn’s attorney stipulated that the bullet that struck the bystander was fired from this weapon.

1. In several enumerations, Dunn contends that the trial court improperly ruled that she could not present evidence of or mention in opening statements an altercation between Dunn and Lewis the night before the shooting, during which Lewis threatened Dunn and was seen to place a gun under the seat of her car. Dunn argues that this evidence would have supported her defense of justification. However, although the trial court ruled that such evidence was inadmissible and prevented Dunn’s attorney from mentioning it during opening statements, Dunn was in fact able to introduce such evidence during the trial. Several defense witnesses testified that, the night before the shooting, Lewis drove to Dunn’s house and repeatedly threatened her. Among other things, the witnesses testified that Lewis repeatedly said, “I’m going to F you up, bitch,” and “I’ve got something for you.” Two of the witnesses said they heard Lewis say words to the effect of, “[Y]ou ain’t going to be with your sister and them forever” and “I’m going to get you.” One of the witnesses testified that she saw Lewis get a gun out of the trunk of her car and place it under the driver’s seat. Another witness testified that she saw a gun on the seat of Lewis’ car. Dunn herself also testified about Lewis’ threats the night before the shooting, although she did not claim to see Lewis with a gun that night. Dunn testified that, after the altercation, she went out and bought a gun for self-defense.

Even if the trial court’s initial ruling precluding evidence of prior difficulties between Dunn and Lewis was erroneous, Dunn has failed to show that she was harmed by such ruling, since she was subsequently allowed to present such evidence. Nor has she shown how she was harmed by the failure to discuss such evidence in her opening statements. The trial court charged the jury on the defense of justification, and there is no indication that Dunn was prohibited from discussing the prior difficulties in closing arguments to support such a theory. Accordingly, it is highly unlikely the verdict would have been different had the trial court allowed Dunn to mention the prior difficulties evidence in her opening statements.

Dunn’s contention that her trial counsel was ineffective in failing to comply with the notice requirements of Uniform Superior Court Rule 31.6 with respect to the prior difficulties evidence is also without merit. Since Dunn was in fact able to introduce evidence of the prior difficulties, she has not shown a reasonable probability that the outcome of the trial would have been different had her attorney complied with the rule.

2. Dunn contends that there was no evidence of malice to support her conviction for aggravated battery in connection with the shooting of the innocent bystander. This contention is without merit. “A person acts ‘maliciously’ when [she] acts intentionally and without justification or serious provocation.” Viewed in the light most favorable to support the verdict, the evidence was more than sufficient for the jury to conclude that Dunn acted intentionally and without justification or serious provocation in firing the shot in question. Although Dunn may not have intended to shoot the bystander, “when an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law . . . transfers the original intent from the one against whom it was directed to the one who actually suffered from it.”

3. Dunn contends that the trial court erred in allowing a police officer to read a statement given by a witness who had testified earlier in the trial. She argues that evidence of the witness’ prior statement improperly bolstered his testimony and was inadmissible because “veracity of the . . . witness was not an issue.”

The witness at issue, Herbert Bush, testified that he was sitting on a bench at the intersection of Nellieville Road and Fifteenth Avenue when he

saw a burgundy car come down the road right there . . . just by that sign and another white car pulled up beside of it and the lady said, don’t hit my car. . . . She got as close as she could over there against the side and she said a kind of little nasty word and then she fired her gun a couple of times. I heard it a couple of times.

On cross-examination, Dunn’s attorney attempted to portray Bush as an alcoholic who drank “every day of his life,” and who had been forced to spend the previous night in jail because he showed up for court drunk. He also questioned Bush about inconsistencies between his testimony and the statement he had earlier given to the police:

Q. [W]hen you first gave a statement you said that the person in the burgundy car yelled out of her car, bitch, what are you trying to do, hit my car, is that right?
A. Yes, sir, that’s right. I didn’t want to come out and say that kind of word, you know.
Q. Yes, sir, I understand that and I appreciate that. But that. . . when you first gave the statement to the police officer and it was written out here, you said, bitch, what are you trying to do . . . you said the person in the burgundy car said, bitch, what are you trying to do, hit my car, isn’t that right?
A. Yes.
Q. All right, and then when you described the incident you said that the driver of the burgundy car pulled out a pistol and fired one shot, isn’t that right?
A. Twice, fired twice.
Q. Yes, sir, do you see two in this statement? ...
A. No, sir, I don’t see but one down.

Dunn’s attorney continued to cross-examine Bush regarding the fact that he had previously stated that only one shot was fired. He also got Bush to admit that he had very bad vision and could barely read a piece of paper.

Officer Booze later testified that he had taken Bush’s statement after the shooting. The statement was reduced to writing by another officer and read back to Bush, who signed it. Over objection, the court allowed Booze to read the statement to the jury, and Booze testified as follows:

Okay, three cars were eastbound on Nellieville Street, first vehicle NOD, meaning no other description, second vehicle blue Caddy, third vehicle burgundy Olds. Number two vehicle was making a left turn when vehicle three pulled up beside the vehicle half on the curb and road. A female got out of the driver’s seat in vehicle three and hollered, bitch, what are you trying to do, hit my car? The driver pulled out a pistol and fired one shot at vehicle two that was leaving the scene. Driver of vehicle three got back in her car and made a right turn onto 15th Avenue and left the scene. Witness also stated the weapon was a blue steel pistol.

On appeal, Dunn does not argue that introduction of the statement was harmful, except to state generally that it “could have had the effect of bolstering [Bush’s] testimony.” Nor does she point to any particular portion of the statement as being prejudicial. Pretermitting whether Bush’s veracity was sufficiently “placed in issue” so as to allow the introduction of a prior consistent statement, Dunn has not shown how she was harmed by the reading of the statement. The first part of the statement adds little if anything to the abundance of testimony regarding how the cars arrived at the intersection. With respect to the next part of the statement, dealing with Dunn’s cursing at Lewis, Dunn’s own attorney read this portion of the statement into the record and questioned Bush about it. Thus, the officer’s testimony regarding this part of the statement was merely duplicative of evidence that Dunn herself had already offered. The next portion of the statement, indicating that Dunn fired only one shot instead of two, tended to impeach Bush’s testimony rather than bolster it and supported Dunn’s version of events. Indeed, Dunn’s attorney had already questioned Bush about the content of this portion in an attempt to get Bush to admit that he had previously stated that only one shot was fired. With respect to the final part of the statement, describing the weapon as a blue steel pistol, Dunn does not contend that admission of this statement in any way affected the outcome of the trial. Indeed, Dunn stipulated at trial that the bullet was fired from the Burser .380 caliber pistol she had previously given to Officer Booze, and the pistol itself was introduced in evidence.

In light of the fact that Dunn’s attorney extensively cross-examined Bush regarding the written statement, that the statement tended to impeach rather than bolster Bush’s testimony on the key issue of how many shots were fired, and that other portions of the statement were either relatively immaterial or duplicative of essentially undisputed testimony, we believe it is highly unlikely that allowing the officer to read the statement affected the outcome of the trial. Accordingly, any error in allowing such testimony was harmless.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

Decided February 29, 2000.

Stanley C. House, for appellant.

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

       Dunn gave inconsistent testimony as to whether she actually saw a gun dining the encounter:
      Q. Isn’t it true that you told [an officer] you never saw a gun and you had just went

        and got your gun in case she might have one?
      A. No, I didn’t see nothing but she told me that she had something.
      Q. Okay, so you didn’t see anything?
      A. No.
      Q. So when you just told this jury that on Bolt Avenue when she produced a .25 caliber pistol you really didn’t see a gun?
      A. Yes. I did.

       The trial court based its ruling solely on Dunn’s failure to comply with Uniform Superior Court Rule 31.6 by giving advance notice of her intent to offer evidence of prior difficulties between her and Lewis. Subsequently, however, the Supreme Court held that “the requirements of USCR 31.1 and 31.6 should no longer be imposed on a defendant when she seeks to introduce evidence of prior difficulties with the victim to support her claim of justification.” Owens v. State, 270 Ga. 199, 202 (2) (509 SE2d 905) (1998). Although the State argues that Owens should not be applied to cases tried before it was issued, the fact that the Supreme Court reversed the defendant’s conviction in Owens shows that it intended the decision to be applied retroactively.

       See Johnson v. State, 170 Ga. App. 433, 437 (6) (317 SE2d 213) (1984) (no harmful error in initial exclusion of certain testimony from two witnesses, where information desired by defendant was supplied by witnesses’ subsequent testimony); Smith v. State, 237 Ga. App. 582, 585 (3) (516 SE2d 92) (1999) (additional testimony regarding victim’s violent nature “would likely have been merely cumulative and was unlikely to have altered the verdict”); Ware v. State, 252 Ga. 90, 91 (4) (310 SE2d 908) (1984) (any error in refusing to allow testimony regarding threats made by victim rendered harmless by subsequent testimony that victim threatened to kill defendant).

       See Grant v. State, 237 Ga. App. 892, 895-896 (3) (515 SE2d 872) (1999).

       (Emphasis in original.) Wade v. State, 258 Ga. 324, 330 (11) (d) (368 SE2d 482) (1988). See also Roundtree v. State, 227 Ga. App. 777 (490 SE2d 526) (1997).

        See Harden v. State, 164 Ga. App. 59, 60 (2) (296 SE2d 372) (1982) (whether defendant acted maliciously in striking victim was for jury).

       (Punctuation omitted.) Happoldt v. State, 267 Ga. 126, 127 (1) (b) (475 SE2d 627) (1996).

       See Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998) (witness’ veracity is placed in issue so as to permit introduction of prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination).

       See id.

       See Brooks v. State, 232 Ga. App. 115, 120 (18) (501 SE2d 286) (1998); Bright v. State, 238 Ga. App. 876, 880 (4) (520 SE2d 48) (1999).


author: Smith, Judge.

text:
    A99A1748.
    COTTON STATES MUTUAL INSURANCE COMPANY v. COLEMAN et al.
    (530 SE2d 229)
   Smith, Judge.

Cotton States Mutual Insurance Company filed this declaratory judgment action seeking a determination of coverage on an automobile insurance policy issued to W. Roscoe Coleman, Sr. Cotton States sought a declaration regarding the following exclusion in an amendatory endorsement to the liability portion of the policy:

We do not provide liability coverage for “bodily injury” and “property damage” to you or any family member residing in your household. (1) If Intra-Familial Tort Immunity applies; or (2) To the extent the limits of liability of this coverage exceed the limits of liability required by law if IntraFamilial Tort Immunity does not apply.

The parties have stipulated to the relevant provisions of the policy and the facts of this case; the only issue is the legal construction of the exclusion. Coleman died in a collision while riding in his own vehicle; the vehicle was being driven with permission by Robert L. Reeves, who was not a member of Coleman’s family and who also died in the accident. Coleman’s heirs (the Colemans) filed suit against Reeves’s estate, alleging that he was at fault in the collision. The administrator of Reeves’s estate notified Cotton States of the pending suit and called upon it to defend and provide coverage for the claim of its own insured. This action followed.

All the parties moved for summary judgment. The trial court, treating this as a case of first impression, concluded that the exclusion was “camouflaged” and “unclear” because it was contained in an endorsement instead of in the body of the policy. The trial court denied Cotton States’ motion for summary judgment and granted summary judgment in favor of the Colemans and Reeves’s administrator. Cotton States appeals, and we reverse.

This case is controlled by our recent decision in Ga. Farm &c. Ins. Co. v. Burch, 222 Ga. App. 749 (476 SE2d 62) (1996), which addressed an essentially identical exclusion. In Burch, an insured was injured in a collision while allowing a friend or acquaintance to drive her car. As cited in the opinion, the policy contained an exclusion limiting coverage for “ ‘bodily injury ... to “you” (the named insured) or any family member ... (2) to the extent the limits of liability of this coverage exceed the limits of liability required by law. . . ” Id. at 750. We held that the insurer’s exclusion operated to limit its coverage obligation to the statutory minimums under OCGA §§ 33-34-4 and 40-9-2 (5) (A), that the exclusion did not violate public policy, and that even if it were contrary to public policy, it would be enforceable as to amounts in excess of the statutory minimum coverage. Id. Burch controls here.

The trial court’s conclusion that the endorsement was insufficiently conspicuous or in some way concealed from the insured is without merit. The standard “Georgia Amendatory Endorsement” is a substantial five-page document included as part of the policy identified in the record and stipulated to by the parties. The endorsement is listed on the typed declarations portion of the policy along with four other documents as the “applicable forms.” These five forms constitute the entire policy, including the declarations portion which is also identified. The amendatory endorsement contains both additional coverage provisions (including amended uninsured motorist coverage in compliance with Georgia law) and exclusions.

“Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application made a part of the policy.” OCGA § 33-24-16. An insured who can read is required to read the policy and is presumed to have understood its contents. Penn America Ins. Co. v. Miller, 228 Ga. App. 659, 661 (492 SE2d 571) (1997). Moreover, “[v]oidance of exclusion to an insurance policy is a severe penalty which alters the very terms of the deal between the parties. It requires the insurer to provide coverage for uncontracted risk, coverage for which the insured has not paid.” (Citations and punctuation omitted.) Id. at 662.

While the Colemans argue that the exclusion violates public policy because it limits the liability coverage stated on the declarations page, this argument is foreclosed by our holding in Spivey v. Safeway Ins. Co., 210 Ga. App. 775, 776-778 (3) (437 SE2d 641) (1993), upon which Burch relies. Liability insurance is intended to protect against the risk of loss from the claims of third parties. But, as we observed in Spivey, a claim which is made by an insured against a permissive driver of his own insured vehicle is not a liability claim by an innocent third party, but a claim on behalf of the insured against his own insurance policy. To hold otherwise would rewrite Coleman’s policy to provide coverage which was neither selected nor paid for by him.

Decided February 29, 2000.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellant.

Plunkett, Shepard, Plunkett & Hamilton, Daniel W. Hamilton, Stephen E. Curry, for appellees.

Wiley S. Obenshain III, pro se.

When the language of an insurance policy defining the . extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the courts must expound the contract as made by the parties. Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage.

(Citations, punctuation and emphasis omitted.) Capitol Indem. Corp. v. L. Carter Post 4472 Veterans &c., 225 Ga. App. 354, 355 (484 SE2d 52) (1997). The trial court erred in granting appellees’ motion for summary judgment and denying Cotton States’ motion for summary judgment on the issue of coverage.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A00A0537.
    GRAY v. OLIVER et al.
    (530 SE2d 241)
   McMurray, Presiding Judge.

Appellant-plaintiff Jane Gold Brown Gray appeals the state court’s order granting summary judgment to appellees-defendants Kevin Oliver and Pulte Homes Corporation, a Georgia corporation (“Pulte Homes”), in the underlying curbside slip and fall case.

Upon the appeal of the grant of summary judgment, this Court reviews the evidence de novo. Summary judgment is proper where the movant shows no genuine issue of material fact exists and entitlement to summary judgment as a matter of law. A defendant carries this burden by demonstrating the absence of evidence as to one essential element of plaintiff’s case. Should the defendant do so, the plaintiff “cannot rest on [her] pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).”

Plaintiff and a girlfriend went house hunting in Chastain Glen, a Cobb County subdivision owned and developed by Pulte Homes on a Sunday afternoon in April 1996. There plaintiff asked Oliver, a sales representative employed by Pulte Homes, to show her a home for possible purchase. Wanting to show plaintiff and her friend a lakeside property some distance from the sales office, Oliver decided to drive, and the group walked to his car which was parked alongside a nearby curbside drainage culvert. Plaintiff and her friend stood on the concrete cover of the culvert as Oliver went to the driver’s side of the vehicle. When plaintiff moved to get into the car, she stepped down from the culvert’s cover at curb level to the sloped surface of the “water run” into the culvert. In doing so, plaintiff slipped and fell, breaking bones in both legs. In deposition testimony, plaintiff admitted that she had seen that defendant Oliver’s car was parked adjacent to a curbside drainage culvert as she walked toward it but did not feel that the vehicle was dangerously parked; that she stood on the culvert’s concrete cover for a minute to a minute and a half before stepping down from it; that nothing would have obstructed her view of the sloped “water run” into the culvert had she been looking down at it, rather than looking at Oliver’s car as she attempted to get into it; and that she was familiar with curbside culverts, recalling that one was on the cul-de-sac where she lived. The state court granted defendants’ motion for summary judgment, concluding that plaintiff’s “knowledge of the static condition was equal to that of defendants.”

Plaintiff contends that the state court erred in granting defendants’ motion for summary judgment in that it failed to allow the jury to resolve whether plaintiff exercised ordinary care for her safety given the fact that defendant Oliver parked his car so closely to the curbside culvert as to “prohibit [ ] [plaintiff] from appraising the danger and extent of the slope to the [drainage culvert].” Held:

1. Plaintiff correctly argues that Robinson v. Kroger Co. “significantly lightens the burden of proof load placed on plaintiffs with regard to their failure to exercise ordinary care and requires defendants to establish a defense to liability. . . .” Robinson, however, did not relieve plaintiffs of the burden of proving a prima facie case of negligence upon a showing of defendant’s knowledge of a hazard superior to that of plaintiff to avoid summary judgment.

Decided February 29, 2000.

Mark R. Harden, for appellant.

McLaughlin, Hendon, Miller & Croy, Norman R. Miller, for appellees.

The curbside culvert in this case constitutes a static condition. A static condition is not dangerous “unless someone fails to observe it and steps into it.” However, even if it were hazardous as plaintiff asserts, “the condition was open and obvious, and thus, in the exercise of ordinary care, [plaintiff] could have avoided it. There is no duty to warn of the obvious,” Moreover, where, as here, the plaintiff had as much knowledge of the hazard as did the owner, plaintiff assumes the risk as to the known condition by voluntarily acting in the face of such knowledge. This result is not inconsistent with Robinson v. Kroger Co., wherein our Supreme Court held, among other things, that summary judgment for a defendant was proper for a plaintiff’s voluntary negligence in circumstances where the plaintiff possessed knowledge of the hazard “equal to or greater than that of the owner/occupier, making it impossible for the plaintiff to prove that the owner/occupier had the superior knowledge necessary for the plaintiff to prevail.”

2. In light of our disposition of Division 1, we do not address plaintiff’s remaining claims of error.

Judgment affirmed.

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

       (Citations omitted.) Jackson a K-Mart Corp., 242 Ga. App. 274 (529 SE2d 404) (2000).

       268 Ga. 735, 743 (1), 747-748 (2) (b) (493 SE2d 403).

        Christopher v. Donna’s Country Store, 236 Ga. App. 219, 220 (1) (511 SE2d 579).

       Id. at 220-221.

        MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420).

       (Citation omitted.) Id.

       (Citations and punctuation omitted.) Wright v. JDN Structured Finance, 239 Ga. App. 685, 687 (2) (522 SE2d 4); see also Warnke v. Pace Membership Warehouse, 215 Ga. App. 33, 34 (449 SE2d 629).

        MARTA v. Fife, 220 Ga. App. at 302, supra (McMurray, R J., dissenting) (the plaintiff testified she could not see slanted gutter “from her direction and perspective”).

        Wright v. JDN Structured Finance, 239 Ga. App. at 686 (2), supra.

       268 Ga. at 737 (1), supra.

       Id.


text:
    A00A0635.
    SOUTHEASTERN SECURITY INSURANCE COMPANY v. LOWE.
    (530 SE2d 231)
   McMurray, Presiding Judge.

On July 2, 1998, Gregory J. Lowe filed suit against Kia D. Hunter in the Superior Court of Effingham County to recover damages for injuries sustained in an automobile accident on May 21, 1997. On July 6, 1998, personal service was unsuccessfully attempted on Hunter at the address listed in the accident report. On the same day, Lowe sent a courtesy copy of the complaint by certified mail to the agent for Hunter’s insurer, Southeastern Security Insurance Company (“Southeastern”). On July 30,1998, the superior court issued an order for service by publication based upon an affidavit of Lowe’s counsel, which stated that Hunter could not be found within the state. Notice was published in the county’s official legal organ for four consecutive weeks. Neither Hunter nor her insurer defended the action. On October 16, 1998, the superior court heard evidence of damages and entered judgment in favor of Lowe for $11,000.

On December 17, 1998, Lowe filed the instant declaratory judgment action against Southeastern seeking to hold it liable for the judgment entered against its insured. The parties filed cross-motions for summary judgment. The trial court granted Lowe’s motion and denied Southeastern’s motion. Southeastern appeals. Held:

1. Southeastern alleges the trial court erred in ruling that service by publication in the Effingham County action sufficed to support an in personam judgment against the tortfeasor which could be enforced against Southeastern. This argument has merit.

This Court consistently has held that without personal service, in personam jurisdiction does not attach, and no money judgment may be recovered from the tortfeasor or his insurer. “There is no provision in this state whereby courts may acquire jurisdiction over a defendant by service by publication and then render an in personam judgment against him.”

The exceptions to this rule are limited. For example, if a plaintiff is unable to obtain personal service against an uninsured motorist, then OCGA § 33-7-11 (e) allows service by publication upon a showing of due diligence. A judgment so obtained may be enforced against the uninsured motorist carrier, as long as other statutory requirements are met. This exception does not apply in the case sub judice because Southeastern is Hunter’s liability carrier.

Another exception was created in Melton v. Johnson. That case involved a defendant who was sued in his county of residence, had actual knowledge of the suit pending against him, and wilfully concealed himself “in order to frustrate all reasonable efforts to effect personal service.” Although Hunter was aware of the suit, the facts of the case sub judice are distinguishable from Melton. Hunter was sued in Effingham County. However, in her affidavit, which Lowe filed in support of his motion for summary judgment, Hunter reveals that she had moved with her mother to Chatham County shortly after the automobile accident at issue. Moreover, Lowe did not offer any facts to show that Hunter wilfully evaded service of process.

Decided February 29, 2000

Brennan, Harris & Rominger, Mason White, James D. Kreyenbuhl, for appellant.

Hall & Sullivan, Joseph M. Hall, for appellee.

Accordingly, this case falls within the general rule that an in personam judgment against the tortfeasor must precede recovery from the insurer. It was error to grant summary judgment to Lowe and to deny it to Southeastern.

2. Lowe argues that based on OCGA § 33-7-15, Southeastern is barred from denying coverage because it had notice of the underlying action. We disagree.

OCGA § 33-7-15 does not negate the requirement that an in personam judgment must be obtained against the insured tortfeasor before the insurer will be obligated to pay it. The statute merely provides in part that an insurer cannot claim lack of notice of a suit against its insured as a reason to deny coverage as long as notice is provided by a third party.

3. Lowe’s motion to supplement the record on appeal is denied as moot.

Judgment reversed.

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

        Smith v. Commercial Union Assurance Co., 246 Ga. 50 (268 SE2d 632); Barnes v. Continental Ins. Co., 231 Ga. 246, 247 (201 SE2d 150); Jones v. Cropps, 197 Ga. App. 313, 314 (1) (398 SE2d 295); Green v. Young, 197 Ga. App. 101, 102 (397 SE2d 509).

        Veal v. Gen. Accident &c. Corp., 128 Ga. App. 610, 611 (197 SE2d 410).

        Brown v. State Farm &c. Ins. Co., 242 Ga. App. 313 (529 SE2d 439); Wilson v. State Farm &c. Ins. Co., 239 Ga. App. 168, 171 (520 SE2d 917).

       242 Ga. 400 (249 SE2d 82).

       Id. at 403.

       Compare Ga. Farm &c. Ins. Co. v. Martin, 209 Ga. App. 237 (433 SE2d 315), rev’d on other grounds, 264 Ga. 347 (444 SE2d 739).