text:
    A96A0724.
    DAVIS v. THE STATE.
    (471 SE2d 307)
   Beasley, Chief Judge.

After a jury trial, Davis was convicted of aggravated assault, OCGA § 16-5-21 (a) (2), and giving a false statement to a police officer, OCGA § 16-10-20. He contends the court erred in denying his motion for new trial based upon newly discovered evidence. OCGA § 5-5-23.

At trial it was shown that Davis was driving a car with Chandler seated in front as the only passenger. On a multi-lane road, Davis moved from the left lane to the far right. Shortly thereafter Chandler threw a 20-ounce plastic bottle partly filled with liquid at a pedestrian, striking him in the face and causing serious injury to his eye. The victim heard someone utter an obscenity just before the bottle struck. Witnesses in the car immediately behind Davis and Chandler saw them make gestures of congratulations to each other. When the cars stopped for a traffic light, one of the witnesses, Vanover, leaned out of the car and informed Davis and Chandler that they had been seen and that the police would be informed.

Davis, then Chandler, got out of the car and walked back to the witnesses’ car. Vanover told them he had noted the license plate number, and Davis responded that he did not care because it was not his car. Both Davis and Chandler then began jeering at Vanover, urging him to leave the car, and Chandler spat on the window. Davis and Chandler eventually returned to their car and drove off, and the witnesses turned their car around to drive back to the pedestrian. On the way, the witnesses noticed Davis and Chandler driving next to and behind them. The witnesses stopped at the location of the pedestrian and gave a report to police, but Davis and Chandler drove away.

Investigation of the license plate number revealed that it belonged to Davis’s grandmother. Approximately eight weeks after the assault, a police officer spoke with Davis who said a man he knew only as Jack had asked for a ride, Davis had agreed, and Jack had thrown the bottle at the pedestrian. Davis stated he then ordered Jack out of the car, told him what he had done was wrong, and proceeded to his workplace. Further inquiry led the officer to identify Chandler as the man who may have been with Davis on the day of the crime. Chandler’s first name is Kevin, which Davis knew. The officer again contacted Davis, who admitted his earlier statement was false and that Chandler was the man who threw the bottle. Davis did not tell the officer of his own actions after the attack.

Chandler, who had known Davis about seven years, was not apprehended at the time of trial and did not testify. When Chandler learned Davis had been arrested, he went to live with his grandparents. During that time, he knew there was a warrant for his arrest and told his parents not to inform anyone where he was living. He surrendered shortly after Davis’s trial and pled guilty to aggravated assault. He denied there was any celebration after the attack and stated Davis did get out of the car but did not say anything to Vanover. He also stated he had not said anything before he threw the bottle and Davis had not done anything to entice him to throw it, and that if he had been subpoenaed or had known when Davis was to be tried, he would probably have testified in his behalf.

Davis contends the court should have granted his motion for new trial on the basis of this evidence because he met the requirements set forth in Timberlake v. State, 246 Ga. 488, 490-491 (1) (271 SE2d 792) (1980). “ ‘It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.’ [Cits.] All six requirements must be complied with to secure a new trial. [Cits.]” Id.

Our review is circumscribed because “ ‘motions for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless (that) discretion is abused.’ [Cit.]” Brown v. State, 209 Ga. App. 314, 316 (2) (433 SE2d 321) (1993).

We first note that the new evidence here is not so much newly discovered as newly available, an important distinction noted in Hester v. State, 219 Ga. App. 256 (1) (465 SE2d 288) (1995). There we determined that without some showing of special circumstances, it was not an abuse of discretion to deny a new trial based on newly available evidence. Id. at 257 (1). Davis seeks to distinguish Hester, reasoning that Chandler’s testimony should be considered newly discovered because Chandler was unavailable in that he had not been apprehended at the time of trial, while Hester’s co-defendant was unavailable because he invoked his right to remain silent. This is a distinction without a relevant difference. Both co-defendants were not available to testify at trial, both subsequently pled guilty, and both then gave exculpatory testimony at motions for new trial. The “two critical facts” present in Hester, supra at 257 (1), are here as well: 1) Chandler’s testimony is not new evidence because his involvement in the incident was always known to Davis; and 2) Chandler “ ‘lacks credibility, since he has nothing to lose by testifying untruthfully regarding the alleged innocence of the defendant seeking a retrial.’ [Cit.]” Id.

This lack of credibility hinges on the fact that he was unavailable through his own acts and has since pled guilty; the specific kind of action he took to make himself unavailable until shortly after Davis’s trial is unimportant. Although Davis contends that, once arrested, Chandler cooperated and admitted he was the only person involved in the assault, the record indicates that Chandler gave the version of events now advanced as exculpatory of Davis only after pleading guilty and receiving a ten-year sentence. Under these circumstances, Chandler’s belated attempt to exculpate Davis is inherently suspect. See United States v. Carlin, 573 FSupp. 44 (N.D. Ga. 1983). Credibility will almost always be suspect when “newly available” evidence is the testimony of a fellow participant in the crime who attempts to testify helpfully to a colleague only after his own case has been adjudicated. It comes with little reliability to rescue it from its tainted circumstances. Davis suggests no special circumstances that would overcome the lack of credibility.

Decided May 10, 1996.

Stephen T. Maples, for appellant.

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

Further, if we consider Chandler’s testimony to be newly discovered evidence and apply the Timberlake requirements, Davis still fails to show the court abused its discretion in denying the motion. As to the first requirement, Chandler’s evidence has not come to Davis’s knowledge only after the trial. To the contrary, Chandler testified to nothing about which Davis was not fully cognizant at trial, except his own state of mind.

Nor is there any evidence that Chandler’s absence was “not owing to the want of [Davis’s] diligence.” Tmberlake, supra. Chandler testified that he had told his parents not to reveal his whereabouts and that, to his knowledge, Davis did not know where he was. At trial, an officer testified that some unsuccessful efforts had been made by the sheriff’s office and probation department to locate Chandler. Neither the official efforts nor Chandler’s testimony requires a finding that any efforts that Davis might have undertaken to locate Chandler would have been futile; the court could have concluded that Chandler’s friend of seven years might have had more success than the police had. There was simply no evidence that Davis made any such effort or attempted to subpoena Chandler or sought a continuance because of his unavailability. See Dobbs v. State, 245 Ga. 208, 210 (3) (b) (264 SE2d 18) (1980); Clayton v. State, 203 Ga. App. 843, 845-846 (4) (b) (418 SE2d 610) (1992); Curtiss v. State, 165 Ga. App. 464 (302 SE2d 1) (1983).

Moreover, the court also may have concluded that the credibility problems inherent in testimony such as Chandler’s would have kept it from being so material that it would have resulted in a different verdict. See Jewell v. State, 261 Ga. 861, 862 (2) (413 SE2d 201) (1992). Although the court did not specify why it denied the motion, or which Timberlake requirement it found lacking, we cannot conclude the court abused its discretion in denying the motion.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A96A0801.
    THIMBLE SQUARE, INC. v. FROST.
    (471 SE2d 305)
   Beasley, Chief Judge.

Thimble Square, Inc., leased from Frost a building which it vacated prior to expiration of the lease. Frost sued, and won by jury verdict, the rent due. Thimble appeals the trial court’s denial of its motion for new trial.

1. It enumerates as error the court’s refusal to give a curative jury instruction after Frost’s attorney made allegedly improper comments in closing argument.

The parties’ lease required Frost to make various improvements to the building prior to Thimble’s occupancy. Frost testified without objection that in order to make these improvements, he had spent $40,000. Thimble raised a relevancy objection when Frost testified that he had borrowed the money from the bank and signed a note requiring the repayment of $52,000. Although the court sustained the objection to the documentary evidence, it noted that Frost’s testimony had been admitted without objection. Thimble’s president later acknowledged that he had agreed to the term of the lease because of the money spent by Frost in making the improvements.

During closing argument, Frost’s attorney commented upon Frost’s having spent $52,000 for improvements. Following the court’s jury charge, Thimble requested a curative instruction on grounds that Frost’s expenditure was irrelevant and not supported by the evidence. The court refused, noting that its jury charge had made it “manifest” that these expenses were not recoverable. The jury charge does make clear that plaintiff sought only rent. That was borne out in the verdict, which expressly covered only rent due.

In this appeal, Thimble argues that the fact that Frost had spent money making improvements to the building was not in evidence and could not have been admitted in evidence as a result of the court’s sustaining of its objection. Although the court sustained Thimble’s objection to evidence concerning the note, the fact that Frost had spent the money making improvements was in evidence through testimony presented by both Frost and Thimble. It was not error to refuse further instruction because no curing was necessary.

2. Thimble also enumerates as error the permission given to Frost at the close of the evidence to supplement his pleadings to seek rent coming due after the filing of the complaint. In reliance on OCGA § 13-6-14 and Whitley Constr. Co. v. Whitley, 134 Ga. App. 245 (213 SE2d 909) (1975), he argues that Frost’s damages were limited to rents which had accrued at the time the complaint was filed.

Decided May 10, 1996.

Ken W. Smith, for appellant.

Johnson & Johnson, Emmett P. Johnson, Emmett P. Johnson, Jr., for appellee.

Thimble leased the building at a rental of $1,000 per month for a period of 60 months and vacated after 34 months. In his complaint as originally filed, Frost sought $26,000, representing the balance due for the remaining 26 months. Such a recovery was unobtainable in this suit, because the lease does not contain an acceleration clause and Frost brought this action before the lease expired. Based on the supplemental pleadings, the jury awarded $20,000 for rent accruing through the date of trial.

Where money is paid under an installment contract, OCGA § 13-6-14 states that an action will lie for each breach of the contract but that “all the breaches occurring up to the commencement of the action must be included therein.” Whitley, supra at 246, noted that Martin v. McLain, 51 Ga. App. 336, 339 (3) (180 SE 510) (1935), and prior cases had held that under this statute the plaintiff cannot recover for installments falling due after the filing of the action. However, “the applicability of the language in Martin to present day practice has been modified by enactment of the Civil Practice Act to the extent that a recovery of installments falling due after suit has been commenced may be sought by the filing of supplemental pleadings under [OCGA § 9-11-15 (d)]. . . .” Nickerson v. Candler Bldg., 156 Ga. App. 396, 399 (5) (274 SE2d 582) (1980). As noted in Whitley, supra at 247, such supplemental pleadings are allowable upon motion and at the discretion of the trial court. Thimble has shown no prejudice. In answer to Thimble’s argument that supplement should have been disallowed because Frost could bring later suit for rent accruing after commencement of the first action, nothing would be served thereby except the incursion of additional costs for both parties, delay in recovery of what was then due, and waste of judicial resources. The trial court did not abuse its discretion in allowing Frost to supplement his pleadings so as to seek rent falling due after suit was commenced.

3. This being a frivolous appeal, a penalty of $1,000 is imposed on appellant, which the trial court is directed to add to the judgment on remittitur. Court of Appeals Rule 15 (b) and (c).

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


author: Ruffin, Judge.

text:
    A96A0457.
    AYERS v. CITY OF ATLANTA.
    (471 SE2d 240)
   Ruffin, Judge.

John C. Ayers, Jr. was driving home from an Atlanta restaurant when a state trooper stopped him for a traffic violation after 11:00 p.m. on May 11, 1993. He failed roadside sobriety tests, registered .15 on the Intoximeter 3000, and was charged with DUI per se (OCGA § 40-6-391 (a) (4)), and less safe to drive (OCGA § 40-6-391 (a) (1)). An Atlanta city court jury acquitted him of the per se charge, but after receiving testimony from the trooper and reviewing a videotape made during the roadside sobriety tests, convicted him on the less safe charge. We affirm.

1. Ayers claims the jury lacked sufficient evidence to convict him. In passing on this enumeration of error, we review the evidence with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979); Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

By his own testimony, Ayers had consumed one and one-half eight-ounce margaritas, but no food, between 8:30 and 10:30 p.m. The trooper, a member of the Alpha DUI task force, testified that when he stopped Ayers at approximately 11:20 p.m., Ayers smelled strongly of alcoholic beverages, his speech was slurred, his gait wobbly, and his face flushed. Ayers performed poorly on various “divided attention” sobriety tests, leading the trooper to conclude that he was intoxicated to the point he was less safe to drive. The jury saw Ayers and heard his voice on the trooper’s videotape. This evidence was sufficient to allow a rational trier of fact to find Ayers guilty beyond a reasonable doubt. See Martin v. State, 216 Ga. App. 25, 26 (453 SE2d 498) (1995); Lewis v. State, 214 Ga. App. 830, 831-832 (1) (449 SE2d 535) (1994). The trooper described his qualifications and testified, based on his experience and training, that Ayers was intoxicated. “A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence to the extent it made him less safe to drive. [Cits.]” Lewis, 214 Ga. App. at 832 (1). Although the jury did acquit Ayers of the traffic offense for which the officer stopped him, “[t]here is no requirement that the [defendant] actually commit an unsafe act” while driving. (Citation and punctuation omitted.) Id. at 831 (1).

To the extent Ayers claims circumstantial evidence of his intoxication did not exclude all reasonable hypotheses, his contention fails. Although he and his expert testified his diabetic condition could produce signs similar to alcoholic intoxication, his traveling companion testified that she was familiar with those symptoms and that Ayers did not exhibit such symptoms to the officer. The jury was authorized to reject this alternate hypothesis. Coates v. State, 216 Ga. App. 93, 94 (1) (453 SE2d 35) (1994).

2. The trial court committed no reversible error by allowing evidence of the Intoximeter 3000 results, even though the implied consent warning given Ayers by the officer was defective because it did not inform the defendant of his right to an independent test “by personnel of his own choosing.” See State v. Causey, 215 Ga. App. 85, 86 (449 SE2d 639) (1994). The jury acquitted him of the charge based on his blood alcohol level as shown by those test results, making any error in their admission harmless. Jones v. State, 200 Ga. App. 666 (2) (409 SE2d 251) (1991); see also Harden v. State, 210 Ga. App. 673, 675 (1) (436 SE2d 756) (1993). Ayers has not shown any specific harm resulting from this error. Accordingly, it is an error distally distended from harm.

Furthermore, the jury would have been entitled to hear the test results under our holding in Charlton v. State, 217 Ga. App. 842, 844 (459 SE2d 455) (1995). In that case, as in this one, the defendant produced a Dr. Woodford to testify that after consuming the alleged number of drinks the defendant’s blood alcohol concentration would be less than .05. We held that despite the errors made in giving the implied consent warning, the test results were admissible to impeach the expert’s opinion.

3. Ayers also argues the trial court should not have allowed the jury to hear the videotaped conversation between the trooper and Ayers’ passenger, Ms. Powers, which occurred outside Ayers’ presence. During that conversation, the trooper told Ms. Powers she could not drive the car home unless he determined she was not drinking. For that purpose she submitted to the hand-held “alco-sensor” test, and the trooper related to her that she had registered “.09” and was above the legal limit. Ayers contends this evidence improperly discredited his witness.

This conversation was part of the res gestae and was not hearsay, as Ayers contends. It took place during the traffic stop, while the officer was trying to determine whether to tow the vehicle Ayers drove or release it to Ms. Powers. “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact. . . .” (Citations and punctuation omitted.) Moore v. State, 217 Ga. App. 207, 210 (5) (456 SE2d 708) (1995). Even if hearsay, this evidence creates no reversible error because Ms. Powers testified at trial for the defense. See Knight v. State, 210 Ga. App. 228, 230 (2) (435 SE2d 682) (1993).

Although Ayers correctly contends the numerical results of an aleo-sensor test are not admissible against a defendant to show his level of intoxication, that prohibition does not apply to a witness such as Ms. Powers, whose blood alcohol concentration is not in issue. See Riley v. State, 175 Ga. App. 810 (1) (334 SE2d 863) (1985). Furthermore, Ms. Powers acknowledged on the stand that she had been drinking and the trooper would not let her drive because he felt she had too much to drink. Both the trooper and Ms. Powers testified to the substance of the conversation, making the videotaped conversation purely cumulative. Faircloth v. State, 253 Ga. 67, 69 (3) (316 SE2d 457) (1984). In light of the witness’s own statements, any error in allowing the jury to find Ms. Powers “guilty by association” was harmless. Id. Accordingly, if error, it is an error that is uncertain in scope, unclad in harm, and too incomplete to be redressable.

Decided May 1, 1996

Reconsideration denied May 13, 1996

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

Louise T. Hornsby, Solicitor, Franklin H. Davidson, for appellee.

4. Finally, Ayers asserts error in the trial court’s admission of the police report. Although he cross-examined the state trooper using the report, he contends admitting the report unduly emphasized the trooper’s testimony. This objection to cumulative evidence presents no reversible error. England v. State, 214 Ga. App. 275, 276-277 (447 SE2d 654) (1994); Starnes v. State, 196 Ga. App. 262 (2), 263 (395 SE2d 603) (1990).

Judgment affirmed.

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


author: Johnson, Judge. Ruffin, Judge,

text:
    A96A0820.
    GAMMAGE v. GRAHAM.
    (471 SE2d 237)
   Johnson, Judge.

On December 12, 1991, attorney Miles Gammage was appointed to defend eighteen-year-old Mark Eric Graham against charges of child molestation and attempted statutory rape of a ten-year-old girl. Graham had been confined since his arrest on July 17, 1991, and had already given and signed an incriminating statement at the time of Gammage’s appointment. On Graham’s behalf, Gammage waived formal arraignment on December 18, 1991. He interviewed the investigator who took Graham’s statement and shortly thereafter wrote a letter to Graham in which he suggested that entering a guilty plea might be advisable in light of Graham’s written confession. Gammage met with Graham for an hour-long interview on February 4, 1992. At the beginning of the meeting, Graham laid on the floor and appeared lethargic. However, he eventually got up and sat in a chair and discussed the case with Gammage, acknowledging that he had committed the acts alleged and admitting that he understood that they were wrong. As a result of this meeting, Gammage petitioned the court for a psychiatric evaluation, which was ordered. During a telephone conference several days after this meeting, Graham told Gammage that he wanted to plead guilty to the charges.

The evaluation was performed in February 1992, and concluded that Graham, who had a history of mental illness and whose intelligence had been characterized as “borderline normal,” was competent to stand trial, and understood the charges against him and the possible consequences should he be found guilty. Gammage negotiated a plea of guilty but mentally ill with the prosecutor. He explained the plea and its consequences to Graham. On April 7, 1992, in open court, Graham entered a guilty plea. The trial judge questioned Graham about his understanding of the proceedings and confirmed that it was his desire to plead guilty. The trial judge, sua sponte, questioned counsel extensively about the mental health evaluation and about a previous report concerning Graham’s competency which had been submitted to the court. The judge accepted Graham’s plea of guilty but mentally ill and sentenced him to a term of five years in confinement followed by ten years on probation on each count to be served concurrently and remanded him into the custody of the Department of Corrections for mental assessment and assignment pursuant to OCGA § 17-7-131 (g). Graham was sent to Lee Arrendale Correctional Institution, a prison facility for youthful offenders, and classified as a youthful inmate in need of mental health care.

On August 31, 1992, Graham opened his cell door, which had a defective lock, and invited Timothy Gaydon, a fellow inmate, into his cell. Graham began telling Gaydon about the child molestation incidents leading to his incarceration. Gaydon, who was particularly sensitive to this type of crime because of events which had happened to his sisters, became enraged. Gaydon later admitted to beating Graham to death.

Lydia Graham, individually, and by amendment as the temporary representative of the estate of her son, brought this action against Gammage alleging fraud, negligence, breach of fiduciary duty, legal malpractice, and breach of contract resulting in the wrongful death of Graham. We granted Gammage’s application for interlocutory review of the trial court’s denial of his motion for summary judgment.

1. “This court considers de novo the entire record before it on review of denial of a motion for summary judgment in order to determine if there were genuine issues of material fact which would preclude summary judgment or whether, instead, any such disputes were immaterial and movant [Gammage] was entitled to summary judgment as a matter of law. [Cit.]” Cambridge Mut. Ins. Co. v. Okonkwo, 218 Ga. App. 59, 61 (1) (460 SE2d 302) (1995).

2. “Under the law of this state an unforeseeable independent, intervening criminal act of a third person which produced the injury complained of, and without which act the injury would not have occurred, is treated as the proximate cause of the injury, and the independent, intervening criminal act of the third person shall insulate and exclude any negligence on the part of the defendant. [Cits.]” Simmons v. Dept. of Human Resources, 213 Ga. App. 98 (1), 99 (443 SE2d 654) (1994). In this case, as in Simmons, Graham’s death was caused by the criminal acts of someone with whom he voluntarily elected to associate, and who later murdered him. Even if we acknowledge that violence occurs in prisons, the particular chain of events resulting in Graham’s murder were not foreseeable to Gammage, were not triggered by him, and were sufficient in themselves to cause the injury forming the basis of this action. See Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386) (1989). The circumstances of Graham’s murder were not of a type of substantially similar incidents of violence in prisons which would render them foreseeable to Gammage. See Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848) (1991); Adler’s Package Shop v. Parker, 190 Ga. App. 68, 70 (378 SE2d 323) (1989). Neither did Gammage own, have access to, or control over, conditions in the prison, such that he could have taken any remedial or preventative measures to protect Graham. See generally Daniel v. Ga. Power Co., 146 Ga. App. 596, 600 (5) (247 SE2d 139) (1978).

Generally, issues of negligence and proximate cause are matters for the jury. Flanagan v. Riverside Military Academy, 218 Ga. App. 123, 124 (460 SE2d 824) (1995); Wallace v. Boys Club of Albany &c., 211 Ga. App. 534 (439 SE2d 746) (1993); Taylor v. McClendon, 205 Ga. App. 390 (2) (422 SE2d 440) (1992). However, in clear and palpable cases, the issue, of proximate cause is properly decided as a matter of law. Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 393 (4) (394 SE2d 345) (1990). Pretermitting whether Gammage’s representation was negligent in any particular, a proposition not supported by the record in this case in any event, “[n]o matter how negligent a party may be, if [his] act stands in no causal relation to the injury it is not actionable.” (Citations and punctuation omitted.) Fin ney v. Machiz, 218 Ga. App. 771, 773 (463 SE2d 60) (1995). The evidence establishes as a matter of law that the sole proximate cause of Graham’s death was the intervening criminal act of Timothy Gaydon, which was not foreseeable or avoidable by Gammage. Because Gammage’s conduct did not proximately cause Graham’s death, the trial court erred in denying Gammage’s motion for summary judgment. See Simmons, supra; Gafford v. Duncan, 210 Ga. App. 350 (436 SE2d 78) (1993).

Decided May 1, 1996

Reconsideration denied May 13, 1996

Drew, Eckl & Farnham, Arthur H. Glaser, Mary H. Hines, for appellant.

James C. Carr, Jr., William W. Barham, for appellee.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur and concur specially.

Ruffin, Judge,

concurring specially.

I concur fully with the majority opinion in this case. The tragedy in this case, in addition to the tragedy of the death of Mark Eric Graham, is that an attorney had to undergo the ordeal of legal proceedings that had absolutely nothing to do with his representation of the deceased.

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

       Another suit, filed against various other defendants in federal court, has apparently been resolved.

       There is nothing in the record to suggest that Graham, or his mother, attempted to withdraw his plea based on an assertion of ineffective assistance of counsel, or that ineffective assistance of counsel was raised in habeas corpus proceedings.


text:
    A96A0609.
    PERRY v. SOIL REMEDIATION, INC. et al.
    (471 SE2d 320)
   Ruffin, Judge.

Shawn Perry suffered injury when, according to his suit, a vehicle in another lane struck an accumulation of sand and oil on the road, lost control, and hit his motorcycle. Claiming that oily waste spilled from a transport truck en route to a landfill and caused the accident, Perry sued the owner-driver of the truck he claims caused the spill and Soil Remediation, the company he claims shipped the waste. Soil Remediation moved for summary judgment, claiming it had no vicarious liability for the acts of its truck driver, an independent contractor. The trial court agreed. We reverse because questions of fact remain as to whether Soil Remediation had a nondelegable duty to ensure proper transport of its waste products, bringing this case within an exception to the independent contractor rule.

Summary judgment is proper only if the pleadings, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). The standard for granting summary judgment is found in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. The trial court properly found the truck driver, Mitchell, to be an independent contractor. “The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer in the time, manner, and method in the performance of the work. . . . [Cit.]” (Punctuation omitted.) Yow v. Fed. Paper Board Co., 216 Ga. App. 652, 654-655 (2) (455 SE2d 372) (1995). The key is to determine whether the contractor is truly independent or whether he is simply the employer’s alter ego. Loudermilk Enterprises v. Hurtig, 214 Ga. App. 746, 747 (449 SE2d 141) (1994) (physical precedent only).

The affidavit of Soil Remediation’s president alleged Mitchell to be an independent contractor and not an employee. “A denial of the existence of an agency relationship may constitute an uncontradicted fact which will sustain a motion for summary judgment.” (Citations and punctuation omitted.) McDaniel v. Peterborough Cablevision, Ltd., 206 Ga. App. 437, 439 (425 SE2d 424) (1992); Hampton v. McCord, 141 Ga. App. 97, 99 (1) (232 SE2d 582) (1977). Whenever it needed to make a shipment, Soil Remediation contacted Mitchell or other independent truckers. It paid Mitchell by the job, on the basis of mileage and time spent at the various delivery sites. Mitchell owned or leased his own equipment to haul the waste and carried his own workers’ compensation and liability insurance. The truck he drove bore his name on its door. Soil Remediation did not control the routes Mitchell took to or from shipment sites, and Mitchell was free to work for others. Under these circumstances, the trial court did not err in finding Mitchell to be an independent contractor as a matter of law. Slater v. Canal Wood Corp. &c., 178 Ga. App. 877, 878 (1) (345 SE2d 71) (1986); Coastal Timberlands v. Brown, 141 Ga. App. 800, 801 (234 SE2d 373) (1977). “[Mitchell] clearly functioned independently of [Soil Remediation] under the circumstances of this case. . . .” Bowman v. C. L. McCord Land &c., 174 Ga. App. 914, 915 (1) (331 SE2d 882) (1985).

Perry points out that, on one occasion when Mitchell’s liability insurance expired, Soil Remediation paid for a renewal policy out of money it owed him and would not let him operate until the insurance became effective. He also alleges Soil Remediation controlled Mitchell by teaching him the proper way to fill out necessary paperwork and what to do in case of a spill. But these actions, designed to ensure Mitchell complied with legal requirements, did not alter the parties’ relationship. “These circumstances provide no indicia of a master/servant relationship. [Cit.]” Slater, supra at 880 (1). Perry has not countered Soil Remediation’s denial of Mitchell’s agency with direct evidence or with circumstantial evidence sufficient to create a genuine issue of material fact as to the parties’ relationship. See Bennett v. Miller, 188 Ga. App. 72, 74 (371 SE2d 903) (1988).

2. Although Mitchell is an independent contractor, the evidence is insufficient to conclude Soil Remediation may not be held liable for any spill he caused. Pursuant to OCGA § 51-2-5 (4), an employer is liable for the negligence of an independent contractor who is performing the employer’s nondelegable statutory duty. Owens v. BarclaysAmerican/Mtg. Corp., 218 Ga. App. 160, 162 (2) (460 SE2d 835) (1995); Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655 (445 SE2d 771) (1994); Royal Frozen Foods Co. v. Garrett, 119 Ga. App. 424, 425 (1) (167 SE2d 400) (1969), rev’d on other grounds, 225 Ga. 533 (170 SE2d 294) (1969). Soil Remediation may have had such a duty to ensure the transportation of its waste products in accordance with applicable laws and regulations.

Soil Remediation is a “materials recovery facility” which must dispose of its wastes in compliance with the Georgia Comprehensive Solid Waste Management Act, OCGA § 12-8-20 et seq., and regulations issued pursuant to it. See OCGA § 12-8-22 (26); Ga. Comp. R. & Regs. 391-3-4-.01 (56). The legislature enacted this law “in furtherance of its responsibility to protect the public health, safety, and well-being of [Georgia’s] citizens. . . .” OCGA § 12-8-21 (a). Assuming Soil Remediation shipped waste by Mitchell, Mitchell was himself required to obtain a permit from the State and comply with the Act and its rules and regulations. OCGA §§ 12-8-22 (34), 12-8-24 (a); Ga. Comp. R. & Regs. 391-3-4-.02.

To properly dispose of its waste, Soil Remediation was required to comply with Ga. Comp. R. & Regs. 391-3-4-.04 (5), which states: “The owner or occupant of any premises, . . . industry, or similar facility] shall be responsible for the collection and transportation of all solid waste accumulated at the premises . . . to a solid waste handling facility operating in compliance with these Rules unless arrangements have been made for such service with a collector operating in compliance with these Rules!’ (Emphasis supplied.) Accordingly, Soil Remediation had a statutory duty to transport the waste and could be relieved of this responsibility only if Mitchell complied with the rules. The record does not demonstrate Mitchell had the necessary permit. Furthermore, questions of fact exist as to whether he complied with Ga. Comp. R. & Regs. § 391-3-4-.06 (3) (a) (3), which requires that “vehicles or containers used for the collection and transportation of solid waste shall be loaded and moved in such manner that the contents will not fall, leak or spill therefrom. . . .”

These regulations carry the force of law. OCGA § 12-8-30.7; see Garrett, supra at 425. They concern themselves with possible spills and leaks from vehicles transporting solid waste and are, therefore, applicable to this situation. It is apparent the regulations are designed to ensure that persons who dispose of solid waste do so only through properly regulated channels. If Soil Remediation did not ensure Mitchell was properly registered with the State, it remained responsible for any injury resulting from his transportation of its solid waste in violation of the regulations.

The fact that regulations create this duty distinguishes this action from cases such as Tanner v. USA Today, 179 Ga. App. 722, 723 (2) (347 SE2d 690) (1986), and Newsome v. Dunn, 103 Ga. App. 656, 658 (2) (120 SE2d 205) (1961), in which no duty existed to ensure an independent hauler had registered with the Public Service Commission. This case is closer to decisions such as Wright v. Transus, Inc., 209 Ga. App. 771, 772 (1) (434 SE2d 786) (1993), and Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706, 711-712 (371 SE2d 252) (1988), in which federal regulations designed to ensure that trucking companies take responsibility for their drivers deprived the companies of the “independent contractor” defense.

Decided May 13, 1996.

Sutton & Associates, Berrien L. Sutton, for appellant.

Young, Thagard, Hoffman, Scott & Smith, F. Thomas Young, Daniel C. Hoffman, Tillman, McTier, Coleman, Talley, Newbern & Kurrie, George T. Talley, J. Converse Bright, for appellees.

Neither does the case of Dinsmore v. Cherokee County, 177 Ga. App. 93, 94 (338 SE2d 523) (1985), dictate a different holding here. In Dinsmore, we held that even if the Solid Waste Management Act created a general duty of safety, the county retained sovereign immunity in the absence of a statute specifically waiving that immunity.

“[A] person can be an independent contractor in one part of his activity and an employee in another.” (Citations and punctuation omitted.) Williams v. Thurston Paulk, Inc., 216 Ga. App. 621, 622 (1) (455 SE2d 132) (1995); Moss v. Central of Ga. R. Co., 135 Ga. App. 904, 906 (219 SE2d 593) (1975). The regulations at hand dictate that, in the limited area of ensuring its waste is properly transported, Soil Remediation must either use a properly registered or permitted waste collector or remain “responsible” for the waste until it reaches a registered landfill. Although these regulations would not make Soil Remediation responsible for every possible catastrophe in transit, it would remain responsible for ensuring transportation of the waste in compliance with applicable rules and regulations and could be responsible for an injury proximately caused by Mitchell’s violation of those regulations. Thus, the trial court erred in granting summary judgment to Soil Remediation.

Judgment reversed.

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

       A “recovered materials processing facility is required to dispose of all solid waste it generates in compliance with “all applicable laws and regulations relating to such solid waste.” OCGA § 12-8-22 (26); Ga. Comp. R. & Regs. 391-3-4-.01 (56). “Solid waste” includes “any garbage or refuse . . . and other discarded material including solid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations and from community activities. . . .” OCGA § 12-8-22 (33); see also Ga. Comp. R. & Regs. 391-3-4-.01 (65).

       That regulation reads, in relevant part: “(1) Permits required: no person shall engage in solid waste handling . . . [except for certain exempt individuals and those qualifying under Rule 391-3-4-.06] without first obtaining a permit from the [Department of Natural Resources] authorizing such activity. (2)... Solid Waste Handling Permits shall be required for . .. persons engaged in the collection, transportation,... or disposal of solid wastes. .. .” The statutes noted give similar directives. Another regulation, Rule 391-3-4-.01 (11), defines a “Collector” to include any person who transports solid wastes from “industries,” “businesses,” and “similar locations.”

       Soil Remediation could also avoid responsibility by showing Mitchell complied with Ga. Comp. R. & Regs. 391-3-4-.06 (1), which allows a permit-by-rule.


author: McMurray, Presiding Judge.

text:
    A96A0093.
    WILKES v. THE STATE.
    (471 SE2d 332)
   McMurray, Presiding Judge.

Defendant was charged in a special presentment with armed robbery (two counts), kidnapping, burglary, and violation of the Georgia Controlled Substances Act (two counts). Prior to trial, the State’s attorney “ask[ed] the Court to dismiss the last two counts,” and the remaining charges were tried before a jury. The evidence adduced at his trial, including the testimony of defendant’s accomplice and defendant’s custodial confession, revealed the following: Using a .25 caliber automatic handgun, defendant took cash and prescription narcotics from the immediate presence of Lauren Smith, the manager of Apothecary Shoppe Pharmacy on Prestley Mill Road, in Douglas County, Georgia. Lauren Smith affirmed that another employee, “Tammy Daniell[,] was working behind the cash register[, . . . a]nd David Gammon was behind the counter where the pharmacy materials are.” Defendant asked for an item and followed Lauren Smith to the counter, when she “felt a little shove.” “Tammy took a deep sigh and turned around and that’s when [Lauren Smith] saw the pistol.” Defendant “told [them] to move over to the side, and he told Dave that he wanted the drugs.” David Gammon “handed [defendant] the keys to the narcotics box.” Lauren Smith “took the money out of the register . . . [and] put it in his bag.” Using handcuffs and duct tape that he brought into the store with him, defendant “handcuffed all three [employees] and then taped [their] legs together.” Defendant ordered them “to get in the back of the room, the storage room.”

Detective Don Walker of the Douglasville Police Department responded to a “hold-up alarm activated at that location.” As Detective Walker entered the pharmacy, defendant “came flying to the back of the storage room, like he was trying to find a way out.” He eventually fled “out the back door.” Detective Walker, returned to his patrol car to summon help and saw defendant run “towards the parking lot.” A “brown Chrysler-type vehicle slowly move[d] out of a parking space.” This vehicle refused Detective Walker’s command to halt, evaded a backup officer, and drove all the way around the Apothecary Shoppe, “back towards the rear of the building out into a grassy area.” The passengers fled into the tall grass. As Detective Walker was establishing a “perimeter with the car that was then left, a radio dispatch [announced] a hostage situation nearby, [at the] Lane residence on Prestley Mill Road. . . .” By the time Detective Walker arrived at the Lane residence, the hostage situation had ended. There, Detective Walker “observed the same individual that [he] had seen in the Apothecary Shoppe ... as well as the white female [driving] the brown Chrysler. . . .” Marian McCartney, the daughter of Harold Lane and Sue Lane, was at her parents’ residence, speaking to her mother (who was not at home) on the telephone when she noticed defendant, “that man right there[,] standing at the door.” She turned away, but when she looked back, she said, “my God, he’s got a gun, and slammed the phone down.” Defendant “grabbed [Marian McCartney] by the arm.” He “demanded that [she] drive him to the expressway without getting on Prestley Mill Road.” Marian McCartney affirmed that defendant had “a gun in his hand the whole time[, . . . and so defendant, his female accomplice, and Marian McCartney] got into [her] car,” where defendant grabbed her again. Before Marian McCartney could exit her parents’ driveway, they “were surrounded by the sheriff’s department and police.” At that point, “the girl in the back seat was yelling for her purse, and [defendant] got the purse and took out a cigarette cellophane of like eight or so white pills and took them all.” In so doing, defendant “laid it [(the gun)] down.” Marian McCartney “took the gun and opened the door and ran.”

Iris Elaine Johnson, defendant’s accomplice, confirmed that she and defendant went to the Apothecary Shoppe “[t]o rob it.” She was looking as defendant “kicked it [the door] open,” at the Lane residence. She also confirmed that Marian McCartney “was at gunpoint, didn’t have much choice,” when she left her parents’ house with defendant. In a custodial statement, defendant “blurted out you got me redhanded, . . . and he . . . continue[d] to volunteer information,” without requesting an attorney.

The jury found defendant guilty on all four counts. His motion for new trial was denied, and this appeal followed. Held'.

1. Defendant first enumerates the denial of his motion for new trial on the ground that his custodial statements were involuntary and should have been suppressed, due to his ingestion of several tablets of methadone immediately before his arrest.

At the hearing on the voluntariness of defendant’s custodial statements, Douglas County Sheriff’s Detective Eddie Morris testified that defendant “seemed coherent, alert to the questions and was able to answer the questions . . . asked him.” A tape of this interview was played for the trial court, on which defendant expressly stated: “I’m not intoxicated.” Rather, he took ten 10-milligram pills of methadone “so [he] wouldn’t be sick for a day or so.”

“ ‘The trial court’s findings as to factual determinations and credibility relating to the admissibility of statements will be upheld on appeal unless they are clearly erroneous. (Cit.)’ Henson v. State, 258 Ga. 600, 601 (1) (372 SE2d 806) (1988). Based on the testimony of the detective who interviewed the [defendant in the case sub judice], the trial court was authorized to conclude that [defendant’s] waiver of his constitutional rights was voluntarily and knowingly made, and was not the product of a will overborne by the influence of narcotics.” Weddington v. State, 191 Ga. App. 738, 740 (7) (382 SE2d 661).

2. Next, defendant contends he was erroneously “made to appear before the jury in a prison uniform.” The record reflects that defendant made numerous pretrial motions, including a motion for continuance, on various grounds. But he did not object to wearing a bright orange jump suit until the second day of trial, i.e., after the jury had been impaneled and sworn, and the presentation of evidence was well under way. The record further reflects that the Sheriff’s office had no civilian clothes that would fit defendant, who had gained “thirty or forty pounds . . .” since his arrest. Defendant further spurned an offer of clothes “from the Salvation Army, [explaining] ‘I’m not a bum on the street, and I don’t wear clothes like that.’ ”

“Although the defendant had the right to wear civilian clothes rather than prison clothing at his trial ([cit.]), this is a procedural right that may be lost where there is a failure to assert it properly. [Cits.] See also Timmons v. State, 223 Ga. 450 (1) (156 SE2d 68), and cit.” Sharpe v. State, 119 Ga. App. 222 (1) (166 SE2d 645). In the case sub judice, we hold that defendant waived any valid objection to his attire by failing to urge this matter before trial. Kerr v. State, 194 Ga. App. 604, 605 (3) (391 SE2d 449).

3. Defendant contends the trial court erred in permitting the State’s attorney to place his character in issue.

Defendant’s Exhibit 1 “consists of a five-page letter handwritten, signed by Elaine [Johnson].” This was tendered by defendant during his cross-examination of Elaine Johnson. In this letter to defendant, Elaine Johnson writes: “I did tell them [(investigators from the Federal Bureau of Investigation)] that I was sure of your innocence, [and] I do whatever to prove that.” During redirect by the State’s attorney, the following transpired:

“[STATE’S ATTORNEY]: Mrs. Johnson, in this first letter, D-l, you say in here that [defendant] is innocent. You’re not talking about this case, are you? You’re not talking about this case you’re testifying right now about, are you? [ELAINE JOHNSON]: No. [STATE’S ATTORNEY]: You’re talking about some case in Florida? [ELAINE JOHNSON]: Yes.” Whereupon, defendant interposed his character objection. The State’s attorney rejoined that he had “a right to explain it [where she says defendant is innocent].”

Our examination of the transcript in the case sub judice reveals that the State’s attorney did not attempt to introduce the character evidence in question until after defendant’s counsel, during cross-examination of one of the State’s witnesses, had already introduced (without context) a written statement by that witness to the effect she was sure of defendant’s “innocence.” “ ‘The prosecution merely followed up on the issues injected by (the defendant). Since defendant first opened the door to this line of questioning, he cannot now complain. (Cits.)’ Smith v. State, 258 Ga. 181, 182 (366 SE2d 763) (1988).” Brown v. State, 193 Ga. App. 26, 27 (4), 28 (386 SE2d 903).

4. Next, defendant contends the trial court erred in denying his motion for new trial because the prosecution purportedly made prejudicial statements about matters not in evidence. He argues that OCGA § 17-8-75 imposes on the trial court “an affirmative duty to rebuke counsel for the remarks and to instruct the jury to disregard the statement in order to prevent the appearance of the court’s approval of the statement.”

The record reveals that, during further redirect examination of Elaine Johnson by the State’s attorney, the following transpired:

“[STATE’S ATTORNEY]: Exactly what case are you saying he’s innocent of, what investigation? [ELAINE JOHNSON]: I had to be referring to the Florida investigation. [STATE’S ATTORNEY]: Where the corrections officer turned up dead, is that the case you’re talking about where the —. [DEFENSE COUNSEL]: [(Interposing)] Your Honor, that’s leading and it’s his own witness. THE COURT: No, sir. I sustain the objection as to being —. [STATE’S ATTORNEY]: [(Interposing)] Your Honor, it’s on this letter I’m asking for an explanation of it. [DEFENSE COUNSEL]: Your Honor, that’s one of the prosecutorial misconduct. THE COURT: I sustain the objection.” Thereafter, defendant made no motion for mistrial and did not ask for any rebuke of the State’s attorney.

In construing OCGA § 17-8-75, “our courts have held that after an objection to an improper question or statement is sustained, the [trial] court has no duty to rebuke counsel or give curative instructions absent a further request from the complaining party. Phillips v. State, 230 Ga. 444, 445 (1) (197 SE2d 720) (1973); see Vernon v. State, 152 Ga. App. 616, 617-618 (2) (263 SE2d 503) (1979).” Garner v. State, 199 Ga. App. 468 (2), 469 (2) (a) (405 SE2d 299). “ ‘A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ Johnson v. State, 226 Ga. 511, 514 [(5)] (175 SE2d 840) (1970).” Earnest v. State, 262 Ga. 494 (1), 495 (422 SE2d 188). “Accordingly, given [defendant’s] failure [in the case sub judice] to request further action, we find no reversible error in the trial court’s failure to give curative instructions [or a rebuke, sua sponte,] after sustaining [defendant’s] objection.” Garner v. State, 199 Ga. App. 468 (2), 469 (2) (a), supra.

5. During closing argument, the State’s attorney referred to defendant, saying: “That man’s of no value to society. He’s just committed an armed robbery. He’s armed. He’s dangerous.” The trial court sustained defendant’s objection to prosecutorial misconduct by directing the jury “to disregard that remark in its entirety, and I admonish you, Mr. [State’s attorney], not to make such a remark.” Thereafter, defendant made no motion for mistrial or raised any further objection to closing argument or exception to the trial court’s curative measures. Nevertheless, in his fifth enumeration, defendant contends that the trial court’s rebuke to the State’s attorney and its instructions to the jury were insufficient corrective measures, again relying on OCGA § 17-8-75.

We find no error in the trial court’s refusal to grant a mistrial, sua sponte, after sustaining an objection and giving curative instructions. “A sustained objection to an improper remark made by counsel, without a motion for mistrial, will not constitute grounds for reversal. Grice v. State, 224 Ga. 376 (162 SE2d 432) (1968); Moore v. State, 222 Ga. 748 (6) (152 SE2d 570) (1966). When an objection made to remarks made by counsel is sustained, and instructions to disregard the statements are given, a ruling for mistrial is not demanded. Gunter v. State, 223 Ga. 290 (3) (154 SE2d 608) (1967).” Lenear v. State, 239 Ga. 617, 620 (12, 13), 621 (238 SE2d 407). Accord Johnson v. State, 158 Ga. App. 398 (2), 399 (280 SE2d 419).

Decided May 14, 1996.

Sherrod & Bernard, John W. Sherrod, for appellant.

David McDade, District Attorney, Bradley R. Malkin, Assistant District Attorney, for appellee.

6. In his sixth enumeration, defendant contends the trial court erred in failing to grant his motion for new trial on the special ground of ineffective assistance of counsel. We disagree.

“There exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity. Hand v. State, 205 Ga. App. 467, 469 (2) (422 SE2d 316).” Datz v. State, 210 Ga. App. 517 (3), 518 (3) (a) (436 SE2d 506). “ ‘Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.’ . . . Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74).” Hudson v. State, 218 Ga. App. 671 (1), 672 (462 SE2d 775). We have carefully reviewed defendant’s specifications of alleged ineffective assistance in the case sub judice, arising out of counsel’s alleged failure to conduct adequate investigation of the case and alleged failure to prepare for trial. “Based on an exhaustive examination of the record and transcript, we are convinced that the [defendant’s] conviction resulted not from any deficiency in his legal representation but from the overwhelming evidence of his guilt[, including his custodial confession].” Norris v. State, 176 Ga. App. 164, 168 (8) (335 SE2d 611). Consequently, defendant has not shown any reasonable probability that, but for counsel’s alleged unprofessional acts or omissions, the result of the proceeding would have been different. Hayes v. State, 263 Ga. 15, 16 (3) (426 SE2d 557). See also Hite v. State, 208 Ga. App. 267, 270 (2) (430 SE2d 125).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Andrews, Judge.

text:
    A96A0193.
    MORRISON v. ANDERSON et al.
    (471 SE2d 329)
   Andrews, Judge.

John Morrison appeals the trial court’s order granting summary judgment to Kenneth Anderson, d/b/a Ken’s Tavern and Capital & Counties U. S. A., Inc., (“Anderson”) on Morrison’s claim of negligence resulting in injuries received when he fell off the loading dock behind Ken’s Tavern. We affirm the judgment of the trial court.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.] A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. . . . [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Construing the evidence, as we must, in favor of Morrison as non-movant on summary judgment, the record shows that on the night in question, Morrison arrived at Ken’s around 9:00, parked his car by the loading dock behind the tavern and entered the tavern by walking up the steps, across the loading dock and in through the back door. Morrison stayed at Ken’s for approximately three and one-half hours, drinking four to six beers and also sniffing three small mounds of cocaine.

Around midnight, Morrison and two friends left the bar through the back door and walked out onto the loading dock. According to Morrison, the gate was not up across the loading dock at that time. Morrison admitted in his deposition that he was intoxicated when he left the bar and walked out on the loading dock.

Crystal Kurtin Glass, a waitress at Ken’s, followed the men out onto the loading dock. Morrison said the reason she followed them was because Sonny, one of the men with Morrison, had not paid his tab. In any event, Glass began hugging the men and saying good-bye. Morrison turned and walked back toward Crystal, and she reached out to give him a hug. As she threw her arms around him, Morrison lost his balance, stepped back, and he and Glass both fell off the loading dock.

1. In his motion for summary judgment, Anderson argued that Morrison was precluded from recovering on his negligence claim because he knew of the hazardous condition and assumed the risk of falling when he stood near the edge of the dock after drinking several beers and ingesting cocaine. On appeal, Morrison claims the trial court erred in granting Anderson’s motion for summary judgment because there are issues of fact remaining as to whether Anderson was negligent in failing to give proper warnings and in failing to ensure that a railing was in place in front of the loading dock.

In cases involving a “static” dangerous condition, it is well established that the basis of the proprietor’s liability is his superior knowledge, and, “if the invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition.” (Citations and punctuation omitted.) Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Also, we have held that where there is nothing to obstruct or interfere with the invitee’s ability to see the static defect, the owner is justified in assuming that the visitor will see it and realize the risks involved. Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147) (1992).

A claim involving a static defect differs from other slip and fall cases in that we have held when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. Brown v. Carlisle, 214 Ga. App. 483, 484 (448 SE2d 256) (1994).

Here, the hazard was in plain view, and Morrison testified that earlier that evening he parked his car behind the loading dock, walked across the loading dock and entered the tavern through the rear door. Further, Morrison stated he was very familiar with the loading dock area, having entered and exited the tavern that way dozens of times. Morrison estimated that he had been going to Ken’s three or four times a week for ten years. Morrison testified that for a period of time there was no railing at all in front of the loading dock. After the railing was installed, there were times when the gate in the railing was down, and other times when Morrison noticed it was up. He further stated that he attended barbecues put on by Ken’s Tavern out on the loading dock, both before and after there was a railing in place across it.

Therefore, Morrison is presumed to have knowledge of any hazard associated with the area. The fact that Morrison may have been impaired due to alcohol or cocaine does not lessen his burden of care for his own safety. Ridgeway v. Whisman, 210 Ga. App. 169, 170 (435 SE2d 624) (1993).

Decided May 14, 1996.

Snellings & Ferguson, Stanley T. Snellings, for appellant.

Bentley, Karesh & Seacrest, Karsten Bicknese, Swift, Currie, McGhee & Fliers, Jonathan M. Engram, Robin F. Clark, for appellees.

Accordingly, since Morrison had equal knowledge of any hazard associated with the loading dock, he is unable to prove an essential element of his claim; namely, Anderson’s superior knowledge of the defect or hazard. Therefore, the trial court did not err in granting Anderson’s motion for summary judgment on Morrison’s negligence claim.

2. Morrison also contends that Crystal Glass was responsible for his fall and Anderson is therefore liable under a theory of respondeat superior. But, Anderson is liable only for the negligent acts of Glass committed within the prosecution and in scope of her employer’s business. OCGA § 51-2-2.

In determining whether the master is liable for the acts of his employee, the general rule is that “the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.” (Citations and punctuation omitted.) Wittig v. Spa Lady &c., 182 Ga. App. 689, 690 (356 SE2d 665) (1987). Further, “[i]f a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable.” Id. Even assuming Glass followed the men out onto the loading dock to collect money for an unpaid tab, she clearly abandoned this task when she went over to hug Morrison. Since hugging Morrison was an act done for purely personal motives, Glass clearly departed from her employment, and Anderson is not liable for any negligent hugging she may have committed. Id.

3. Morrison also enumerates as error the trial court’s denial of his motion to strike the affidavit of H. Horton McCurdy which stated that Morrison was intoxicated at the time of the accident to the extent he was unable to control his movements or maintain his balance. This enumeration of error is moot as we find Anderson is entitled to summary judgment on Morrison’s claim without any consideration of the facts in McCurdy’s affidavit.

Judgment affirmed.

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


text:
    A96A0219.
    QUINN v. THE STATE.
    (471 SE2d 337)
   McMurray, Presiding Judge.

Defendant Quinn appeals his conviction of the offenses of trafficking in cocaine, trafficking in methamphetamine, possession of a firearm during commission of a crime, giving false name to a law enforcement officer, forgery in the second degree, and possession of a firearm by a convicted felon. Held:

1. Defendant was initially indicted under a false name he had given law enforcement officers and a timely motion to suppress evidence was filed in that case. After defendant’s correct name became known, he was indicted once more, and it is the charges presented in this second indictment for which defendant has been convicted. An amended, or second, motion to suppress evidence was also filed under the case number assigned the second indictment, that is the case on appeal, but not until several weeks after arraignment.

A motion to suppress evidence was also filed on defendant’s behalf in an in rem civil condemnation action against certain personal property seized at the time of defendant’s arrest. In the civil case, a hearing on the motion to suppress was conducted at which defendant was a party, present, and represented by counsel, the same attorney who later represented him in this criminal case. The motion to suppress evidence in the civil case was denied.

No hearing on a motion to suppress evidence was conducted in the present criminal case. At a pretrial motions hearing, the question of whether there was a proper pending motion to suppress evidence was reached by the trial court. The trial court concluded that the motion to suppress evidence filed in the case begun by the first or false name indictment had not been transferred to the present case begun by the second indictment using defendant’s correct name. The amended or second motion to suppress evidence which was filed under the caption of the second indictment was determined to have not been timely filed. The trial court also determined that even if there had been a properly filed motion to suppress, any issue raised therein had been resolved by the ruling on the motion to suppress evidence in the civil condemnation case. The trial court in effect took judicial notice of the evidence at the motion to suppress hearing in the civil proceeding and incorporated that evidence into the record of the case sub judice.

Defendant enumerates as error the failure to hold a hearing on his motion to suppress evidence as amended. In the alternative, defendant maintains that trial counsel was ineffective due to his failure to file a motion to suppress evidence at or before arraignment in the case sub judice.

First, the trial court was correct in concluding that the second or amended motion to suppress evidence was not timely because it was filed after arraignment. Both Uniform Superior Court Rule 31.1 and case law predating this rule, construing OCGA § 17-5-30, require this conclusion. Baseler v. State, 213 Ga. App. 822 (446 SE2d 250); Davis v. State, 203 Ga. App. 315, 316 (3) (416 SE2d 789).

We also agree that the first motion to suppress evidence was not sufficient to require an evidentiary hearing, albeit our reasons for reaching this conclusion are different than those stated by the trial court. OCGA § 17-5-30 (b) requires that a motion to suppress evidence “state facts showing that the search and seizure were unlawful.” Unless defendant has satisfied this requirement the State is under no duty to present evidence in rebuttal. Brown v. State, 218 Ga. App. 469, 470 (1) (462 SE2d 420); Wilson v. State, 197 Ga. App. 181, 183 (397 SE2d 744). Since mere conclusions unsupported by facts, such as contained in defendant’s first motion to suppress evidence, do not satisfy this requirement, no evidentiary hearing was required due to that motion. Martin v. State, 195 Ga. App. 548, 549 (3), 550 (394 SE2d 551).

2. It is not customary to acknowledge issues not reached or necessary to a decision, but exceptional circumstances require that we do so here. In an apparent response to the trial court’s recognition and reliance upon the “motion to suppress evidence hearing” in the civil forfeiture case, the parties have argued a number of questions concerning whether that hearing may have any res judicata or collateral estoppel effect in this subsequent criminal case. We are unable to reach the questions addressed by the parties because the record on appeal fails to show a final judgment in the civil condemnation case because no ruling has been entered with regard to at least some of the property claimed by defendant. A final judgment is required before any possibility of application of the doctrines of res judicata or collateral estoppel may arise. Helton v. State, 217 Ga. App. 691, 692 (1) (c), 693 (458 SE2d 872); Adcock v. State, 194 Ga. App. 627, 629 (4) (391 SE2d 438); Clark v. State, 194 Ga. App. 280 (1), 281 (390 SE2d 425); Hunter v. State, 191 Ga. App. 769, 771 (382 SE2d 679).

Defendant relies upon Harvill v. State, 190 Ga. App. 353 (378 SE2d 917), in which this Court remanded that case to the trial court to conduct a motion to suppress hearing even though an evidentiary hearing on the validity of that search had been afforded during the proceedings leading to a revocation of probation. Yet, in Talley v. State, 200 Ga. App. 442 (3) (a) (408 SE2d 463), which the State would have us follow, this Court approved of a trial court’s denial of a motion to suppress evidence on the basis that collateral estoppel barred a re-litigation of the same issues raised regarding the legality of the search during a probation revocation proceeding. Since resolution of this matter is not necessary to the decision of the case sub judice, we address this topic solely to alert the bench and bar. See also Pitts v. State of Ga., 207 Ga. App. 606 (1) (428 SE2d 650) and State v. Jones, 196 Ga. App. 896 (397 SE2d 209).

3. Now we reach the question of whether, in failing to file a proper and timely motion to suppress evidence, defendant’s trial counsel was ineffective. The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense, that is, whether there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency. Here, it is uncontroverted that trial counsel’s performance was deficient in failing to file a timely motion to suppress evidence, and argument is directed exclusively to the issue of whether this deficiency prejudiced the defense. Defendant’s burden is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed. Ruffin v. State, 201 Ga. App. 792 (2), 793 (2) (a) (412 SE2d 850). In this regard, defendant relied upon the trial evidence and presented no additional evidence at the hearing on his motion for new trial. Based upon that evidence, a conclusion by the trial court that a motion to suppress evidence would not have been successful, that is, that defendant had been afforded effective counsel was not clearly erroneous and must be upheld.

The incident at issue involves a deputy sheriff on a specialized patrol regimen known as armed robbery stakeout. This rather inarticulately named patrol regimen was used in an extremely high crime area and apparently was intended to aggressively utilize the lowest or least intrusive level of police citizen encounter, the voluntary conversation. The deputy was to check on people walking about or sitting in cars in parking lots.

The encounter at issue in the case sub judice occurred between the hours of 8:00 p.m. and 8:45 p.m. in a shopping center parking lot. It was dark, but the parking lot was lighted. There were two vehicles parked next to one another. A Jaguar was backed into a parking space, and a Trans Am was parked next to it. There was someone seated on the driver’s side of the Jaguar leaning over towards the passenger’s side. The passenger side door of the Jaguar was open, and defendant was on the ground kneeling and leaning over into the Jaguar. The deputy pulled up and parked in front of the cars. As he exited his car and walked over, the deputy saw defendant put something under the seat of the Jaguar and stand up. The driver of the Jaguar sat upright. The deputy asked the men what they were doing, and defendant stated he was looking to buy the Jaguar. The driver, of the Jaguar gave a consistent answer. The deputy then asked the men for identification, and they presented driver’s licenses. The driver’s license presented by defendant showed a name other than defendant’s correct name, but appeared to be a genuine driver’s license. After noticing a bag on the front seat of the Jaguar, the deputy asked what was in it, and neither of the men knew. After getting permission of both men, the deputy looked in the bag and found a large sum of money. The deputy called for another deputy to come assist him. When the deputy inquired about firearms, defendant responded that he had a gun in plain view on the seat of the Trans Am, and with defendant’s consent the deputy got the gun. A sheriff’s department sergeant arrived and, after being briefed by the deputy, opened the driver’s door to the Jaguar to ask the driver to switch off the engine. At that time the sergeant noticed a second paper bag in the Jaguar, partially beneath the passenger’s seat. The sergeant picked this second bag up and asked the Jaguar driver what was in it. After being told that he did not know, the sergeant asked permission to search the vehicle. Permission to search was denied, and the sergeant returned the second paper bag to where he had found it. The sergeant testified that he suspected the contents of the bag was contraband since it felt powdery and crunchy. Defendant and the driver of the Jaguar were secured in the back seats of separate patrol cars, and a drug dog was brought to the scene. The dog alerted on the passenger side door of the Jaguar, and the officers proceeded to obtain a search warrant. The Jaguar was subsequently searched pursuant to a search warrant.

Defendant contends that a strong argument could have been made on his behalf to suppress the items seized from his vehicle and person. These items include a gun, a driver’s license under a false name, a beeper, and money found on defendant’s person.

The argument made by defendant is based upon the premise that his person was seized by the first deputy on the scene when the deputy’s patrol car was parked so as to prevent the departure of his vehicle. But defendant was kneeling or standing in the parking lot, and was not in his car. Undoubtedly there is authority that blocking the path of a moving vehicle, or even an occupied immobile vehicle may constitute a seizure of the occupants thereof. However, we cannot find, nor has defendant cited, any authority suggesting that briefly stopping a patrol car so as to block the path of egress of an unoccupied vehicle amounts to a seizure of anyone. When the deputy stopped his patrol car, defendant was afoot and was free to walk away. Nor did a seizure necessarily occur when the deputy approached defendant, asked a few questions, and asked to examine identification. No seizure had occurred so long as a reasonable person would feel free to disregard the deputy’s request and go about his business, that is, so long as the deputy did not convey a message that compliance with his requests was required. Burns v. State, 216 Ga. App. 178, 179 (454 SE2d 152); Crosby v. State, 214 Ga. App. 753, 755 (449 SE2d 147).

The trial court was authorized to conclude that a hearing on a motion to suppress evidence would probably result in a conclusion that a reasonable person in defendant’s circumstances would feel that he was free to go prior to the discovery that the paper bag in the Jaguar contained a large amount of money. The trial court would also be authorized to find that, upon discovery of the large sum of money in the bag, a seizure of the person of defendant was proper. This would lead to conclusions that any motion to suppress evidence would have had little chance of success, and that the failure of defendant’s trial counsel to file a motion to suppress evidence did not amount to a denial of effective assistance of counsel.

4. Defendant’s next enumeration of error maintains that the trial court erred in allowing the State to introduce the testimony of certain similar transaction witnesses. While the State has aptly argued that no objection was made at trial preserving this issue because no ground for defendant’s objection was stated, our reading of the surrounding colloquy suggests that the objection was understood by all present to be directed to the timeliness of the notice of similar transaction, and we will consider that issue on its merits. The notice was served within the ten-day notice period required by USCR 31.1 and indeed after the trial commenced. However, the State did not discover the similar transaction until after the trial had started and immediately informed defense counsel of its intent to introduce this evidence. A hearing was held to determine the admissibility of the similar transaction. Defense counsel was provided with an opportunity to interview the similar transaction witnesses, but this opportunity was waived by defense counsel.

There was some delay by the prosecuting attorney in providing defendant with the identity of the similar transaction witnesses, and in this connection, we note the absence of any demand by defendant for a list of the State’s witnesses pursuant to then applicable OCGA § 17-7-110. The prosecuting attorney’s stated purpose for delaying the disclosure of this information was to protect the physical safety of the witnesses. Neither the adequacy of this explanation nor the trial court’s exercise of discretion in accepting the explanation is challenged by the sole issue preserved for appellate review.

USCR 31.1 authorizes the trial judge to shorten the time required for giving notice of a similar transaction. The trial court’s exercise of its discretion in this regard is particularly appropriate where the State cannot give notice of its intention to introduce evidence ten days prior to trial because it is not aware of the existence of such evidence at that time. See Johnson v. State, 219 Ga. App. 547, 548 (1) (a) (466 SE2d 63) and Gilstrap v. State, 199 Ga. App. 223, 226 (6), 227 (404 SE2d 629), rev’d on other grounds, 261 Ga. 798 (410 SE2d 423). Under the circumstances of the case sub judice, we find no abuse of discretion in the trial court’s shortening the period for notice of similar transaction.

Decided May 14, 1996

Timothy R Healy, for appellant.

5. The final enumeration of error contends that the trial court erred in allowing the State to elicit testimony of prior drug transactions between defendant and the driver of the Jaguar without providing the notice and due process required by USCR 31.3 and Williams v. State, 261 Ga. 640 (409 SE2d 649). The driver of the Jaguar was indicted as a co-defendant of defendant on the charges of trafficking in cocaine and methamphetamine. At trial, the co-defendant acknowledged his guilt of those crimes and stated his intent to plead guilty to those charges during his testimony as a prosecution witness. This witness then testified as to a number of other drug transactions of a similar amount and nature with defendant within Douglas County during the preceding two years. Defendant’s objection that this amounted to similar transaction evidence concerning which no notice had been provided was overruled apparently on the basis of the holding in Chezem v. State, 199 Ga. App. 869, 870 (3), 871 (406 SE2d 522). Chezem recognizes that so-called similar transaction evidence may be evidence of guilt of the crime charged where the prior incidents involved the same offense, in the same jurisdiction, and occurred within the period of the statute of limitation. “Evidence of guilt of an accused is not restricted to the day mentioned in the indictment or accusation, but may extend to any appropriate date previous to the finding in the indictment or accusation, and within the statute of limitation from the prosecution of the offense charged.” Id. at 871. See also Ledesma v. State, 251 Ga. 885 (311 SE2d 427).

On appeal, defendant does not argue that Chezem has been misapplied, but contends that the scope of this decision should be restricted to those crimes that may be proven by the testimony of a single witness or at least to crimes where the State is able to prove all of the elements of the crime charged. But this sort of retrospective analysis concerning the admissibility of evidence is not amenable to application in our judicial system. Since the testimony in question was clearly evidence of the crime charged, it was properly admitted by the trial court. This enumeration of error is without merit.

Judgment affirmed.

Johnson and Ruffin, JJ, concur in the judgment only.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A96A0225.
    NAILS et al. v. FOOD LION, INC.
    (471 SE2d 327)
   Judge Harold R. Banke.

Veronica Nails sued to recover for damages allegedly incurred when she slipped and fell while grocery shopping at Food Lion, Inc. (“Food Lion”). Paul Nails brought a loss of consortium claim. The Nails appeal the trial court’s determination that as a matter of law, Veronica Nails failed to exercise due care for her own safety and was barred from recovery.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows: Food Lion followed a regular store inspection procedure and had mopped and swept the entire store floor less than one hour before the time of Nails’ fall. Food Lion’s policy was that all employees be on a constant lookout for any foreign substances and take immediate action to remedy any problems. Shortly before Nails fell, a Food Lion stocker discovered a broken jar of mayonnaise and immediately placed a bright yellow A-frame “wet floor” sign over the entire spill. The employee then proceeded to the front of the store to get someone to clean up the spill. As Nails was walking along the back aisle with her husband, she suddenly slipped and fell. After she fell, she noticed some mayonnaise and broken glass on the floor as well as a “wet floor” sign in the area. Although Nails testified that she first saw the foreign substance after she fell, she admitted that if she had been looking down at the floor, she would have seen the mayonnaise prior to falling. The evidence conflicted as to whether the “wet floor” warning sign was properly positioned and whether there was an exposed area of the aisle that was not covered by the warning sign. Held:

The Nails’ sole enumeration is that the trial court erroneously granted summary judgment. We disagree. In order to avoid summary judgment on her slip and fall claim, Nails had to show that Food Lion had actual or constructive knowledge of the foreign substance on the floor and that she was without knowledge or for some reason attributable to Food Lion was prevented from discovering the hazard. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Food Lion would be entitled to summary judgment if Nails knew about the hazard or should have discovered and avoided it, unless the store somehow prevented her from discovering it. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). Nails admitted that her attention was not diverted by products on the shelves and presented no evidence that Food Lion prevented her from discovering the hazard.

Decided May 14, 1996.

Crawford, Hinesley & Jennings, William F. Hinesley III, for appellants.

Painter, Ratterree & Bart, Sarah B. Akins, for appellee.

Nails’ admission that she could have seen the foreign substance if she had been looking is fatal to her claim. A customer, like Nails, must exercise ordinary care for her own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it. Bloch v. Herman’s Sporting Goods, 208 Ga. App. 280, 281 (430 SE2d 86) (1993). Even assuming arguendo that Food Lion was in some way negligent, Nails’ apparent failure to watch where she was walking forecloses her recovery against Food Lion. OCGA § 51-11-7. See Moore v. Winn-Dixie Stores, 214 Ga. App. 157, 159-160 (2) (447 SE2d 122) (1994); Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992). Having successfully pierced an essential element of Nails’ case, Food Lion was entitled to summary judgment as a matter of law. Lau’s Corp., 261 Ga. at 495.

Judgment affirmed.

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


text:
    A96A0312.
    STAMPS v. BANK SOUTH, N.A.
    (471 SE2d 323)
   Andrews, Judge.

Thomas P. Stamps defaulted on a promissory note he gave to Bank South, N.A. (the Bank). Stamps appeals from the trial court’s order granting the Bank’s motion for summary judgment on its complaint to collect sums due on the note and denying his motion for summary judgment.

After the default, Stamps, an attorney acting pro se, proposed a settlement arrangement agreed to by the Bank, under which Stamps admitted the full amount of the indebtedness owed under the note in excess of $200,000 plus interest and attorney fees, agreed to settle the debt by making periodic payments totaling $190,000, and agreed the Bank could take a consent judgment against him for the full amount of the admitted indebtedness if he failed to make the agreed upon payments. The agreement was set forth in three documents: (1) a complaint by the Bank against Stamps for the debt due under the note, which was captioned for filing in the Superior Court of DeKalb County; (2) an “acknowledgment of service” executed by Stamps in connection with the complaint and (3) a consent order executed by Stamps and the Bank for filing in connection with the complaint. Under the terms of the consent order, Stamps agreed to make certain periodic payments to settle the debt on or before June 1,1993, waived his right to respond to the complaint or open default, and agreed the Bank was entitled to file the action and take an immediate judgment against him for the full remaining indebtedness on the note pursuant to the consent order. All of the documents were drafted and signed by the parties in December 1992, but, pursuant to the agreement, none of the documents was filed in the trial court at that time.

Stamps failed to make the agreed upon payments, and, on June 2, 1993, the Bank notified Stamps that it was proceeding under the agreement to obtain a judgment from the trial court. On June 17, 1993, the Bank filed the complaint, acknowledgment of service, and consent order in the Superior Court of DeKalb County. On the same day, the trial court signed and entered the consent order giving a judgment in favor of the Bank. It is undisputed that, on August 3, 1993, after the Bank obtained the judgment on the note, it conducted a foreclosure sale on real property held as security by the Bank for the note and applied the sale proceeds to the amount due on the judgment. The Bank concedes that it did not seek confirmation of the foreclosure sale pursuant to OCGA § 44-14-161 because it relied on the fact that it had a prior judgment on the note pursuant to the consent order. See Taylor v. Thompson, 158 Ga. App. 671 (282 SE2d 157) (1981). The record also reflects that in November and December 1993, Stamps was aware of the judgment and subsequent foreclosure and engaged in further negotiations with the Bank for payment of the remaining indebtedness.

On August 3, 1994, over a year after entry of the consent order, Stamps moved to set aside the consent order on grounds that it was a void confession of judgment because it failed to comply with the requirements of OCGA § 9-12-18. He also alleged in the motion that he was making a special appearance claiming the trial court lacked personal jurisdiction over him because of insufficient service of process. On October 18, 1994, the trial court set aside the consent order on the basis that it was an unlawful confession of judgment made in December 1992 prior to the filing of the complaint in June 1993 in violation of the provision in OCGA § 9-12-18 (b) providing that no confession of judgment may be made in the absence of a pending action. See Whitley v. Southern Wholesale Corp., 45 Ga. App. 445 (164 SE 903) (1932); Information Buying Co. v. Miller, 173 Ga. 786, 788-792 (161 SE 617) (1931). The trial court made no ruling on Stamps’ insufficiency of service claim. On December 4, 1994, we denied the Bank’s application for an interlocutory appeal from the trial court’s order setting aside the judgment. The Bank did not contest this ruling by way of cross-appeal.

On April 20, 1995, the Bank moved for summary judgment on its complaint for the balance due on the note on the basis that Stamps had failed to file an answer to the complaint. On May 19, 1995, Stamps filed a pleading styled as an “amended answer” to the complaint which included the defense of insufficiency of service of process. On the same day, Stamps also filed a motion for summary judgment and a brief in support of his motion and in response to the Bank’s motion. In response to the Bank’s motion for summary judgment, Stamps contended: (1) that no answer to the complaint was required because he was not served with summons in the action and did not waive service of summons; and (2) that if an answer was required, his motion to set aside served as a timely answer which raised all applicable defenses. In support of his motion for summary judgment, Stamps contended that the Bank’s claim for the amount remaining due on the note after foreclosure was barred because there was no valid judgment on the note prior to the foreclosure and the Bank failed to seek confirmation pursuant to OCGA § 44-14-161.

The trial court granted the Bank’s motion for summary judgment concluding Stamps waived service of process by executing the “acknowledgment of service” document filed with the complaint and was in default for failure to file a timely answer after the complaint was filed. The trial court denied Stamps’ motion for summary judgment. Stamps appeals from the grant of the Bank’s motion and the denial of his motion.

1. Stamps claims the trial court erred by granting summary judgment in favor of the Bank because he was not served with the summons, and the suit was therefore subject to dismissal for lack of personal jurisdiction.

It is undisputed that Stamps was never served with the summons issued pursuant to OCGA § 9-11-4 when the complaint was filed. Service of summons, unless waived, is required in order to inform the defendant that suit has been filed, that he must answer within a specified time, and that failure to respond will result in judgment by default. Jones v. Jones, 209 Ga. 861, 862-863 (76 SE2d 801) (1953); OCGA § 9-11-4 (b). “In the absence of service in conformity with [the statutory] rules, or the waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void.” Dejarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625, 626 (4) (193 SE2d 852) (1972). In the absence of such legal service or a waiver thereof, “the court has no jurisdiction to enter any judgment in the case unless it be one dismissing the case for lack of jurisdiction.” Id. at 625 (2).

Stamps did not waive service of summons in the “acknowledgment of service” document executed by him and filed with the complaint. The “acknowledgment of service” executed by Stamps prior to the filing of the complaint stated that: “I. . . acknowledge service of the within and foregoing Complaint and the Consent Order attached thereto. I am a resident of Dekalb County and consent to jurisdiction in Dekalb County for all matters related to this legal action, even if I were to move out of this County prior to the filing of this action with the Clerk of Court.”

By this document, Stamps expressly acknowledged service of the complaint prior to commencement of the action, which is permissible as long as the waiver of service before commencement of the action is limited to a specific suit intended by the parties that is filed without unreasonable delay. Whitley v. Whitley, 232 Ga. 866, 867-868 (209 SE2d 199) (1974). However, Stamps obviously did not and could not acknowledge receiving service of the summons which had not yet issued. Although Stamps could have expressed an intention to waive service of summons when later issued, the acknowledgment document did not contain a waiver of service of summons, or process, or a general waiver of all further service. Compare Jones, supra at 863. “[Sjervice of a [complaint] to which no [summons] is attached where [service of summons] had not been waived, as distinguished from the waiver of all further service, is not service of [summons] and would not give the court jurisdiction to render judgment therein.” Jones, supra at 864. The mere acknowledgment of service of the complaint did not constitute waiver of service of summons as required pursuant to OCGA § 9-11-4. Jackson v. Jackson, 199 Ga. 716, 721-722 (35 SE2d 258) (1945); see OCGA § 9-10-73.

Neither did the “consent to jurisdiction” language in the acknowledgment document constitute a waiver of the required service of summons. The obvious intent of this portion of the acknowledgment was to obtain Stamps’ waiver of any claim that the DeKalb County Superior Court lacked personal jurisdiction over him because of improper venue. See Southern Drayage v. Williams, 216 Ga. App. 721, 723 (455 SE2d 418) (1995) (venue in action against individuals ordinarily lies in the county of the defendant’s residence); Goodman v. Vilston, Inc., 197 Ga. App. 718, 721 (399 SE2d 241) (1990) (venue is a component of jurisdiction over the person). OCGA § 15-1-2. Nothing in the acknowledgment executed by Stamps evinces any intention to consent to personal jurisdiction by waiving service of summons in the manner required by law. See Williams v. Fuller, 244 Ga. 846, 849 (262 SE2d 135) (1979) (jurisdiction of the person obtained by proper service of process).

Nor do we find that Stamps waived service of summons by making a general appearance in the case or by any other action. Compare Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 492-493 (313 SE2d 709) (1985). After the complaint and consent order were filed, Stamps took no action in the case until filing the motion to set aside in which he included a statement that he was making a special appearance to also raise the defense that service of process was insufficient because he had not been served with summons. In ruling on the motion, the trial court did not address the issue of insufficiency of service of process. After the Bank subsequently moved for summary judgment claiming Stamps failed to file an answer to the complaint, Stamps responded to the motion by again raising the claim of insufficiency of service of process in the brief he jointly filed in opposition to the Bank’s motion and in support of his motion. He again asserted the claim of insufficiency of service of process in the pleading styled as an “amended answer” to the complaint, which he filed on the same day he responded to the Bank’s motion for summary judgment. The fact that Stamps had knowledge of the pending action against him did not constitute a waiver of the defective service. Meier v. Bennett, 208 Ga. App. 688, 689 (431 SE2d 462) (1993); Glass v. Byrom, 146 Ga. App. 1, 2 (245 SE2d 345) (1978). Under these circumstances, it is clear that Stamps preserved his claim of insufficiency of service of process. Roberts v. Bienert, 183 Ga. App. 751, 753-755 (360 SE2d 25) (1987); compare Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622 (396 SE2d 790) (1990).

The trial court erred by granting summary judgment in favor of the Bank on the basis that Stamps waived service of process and was in default.

2. Stamps also claims the trial court erred by denying his motion for summary judgment. Stamps moved for summary judgment contending that, since the consent judgment obtained prior to the foreclosure sale was set aside, the Bank cannot rely on it as a basis for collection of the unpaid balance on the note and is precluded from collecting the balance because it failed to seek confirmation of the foreclosure pursuant to OCGA § 44-14-161. The Bank claimed that, pursuant to Taylor, supra, there was no need for it to confirm the foreclosure because, at the time, it had the prior consent judgment which appeared to be final. The Bank contends that Stamps is estopped from asserting failure to confirm because he proposed the settlement method and consent order later declared invalid by the trial court and should not be allowed to benefit after the Bank relied on the existence of the consent judgment in foregoing confirmation. See Pepsi Cola Bottling Co. &c. v. First Nat. Bank &c., 248 Ga. 114, 116-117 (281 SE2d 579) (1981).

Decided May 14, 1996.

Thomas P. Stamps, pro se.

Joseph A. Carragher, Jr., for appellee.

The trial court erroneously ruled that Stamps waived service of process and was in default, so that ruling was the basis for the denial of Stamps’ motion for summary judgment. Since the trial court did not rule on the merits of the motion and has not ruled on Stamps’ defense of insufficiency of service of process, this enumeration is not ripe for appellate review. Accordingly, the judgment is reversed and the case remanded to the trial court for further consideration in conformance with this opinion.

Judgment reversed and case remanded.

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