text:
    A01A2295.
    MOON v. THE STATE.
    (557 SE2d 442)
   Eldridge, Judge.

A Paulding County jury found Forrest Moon guilty of attempted trafficking in cocaine and possession of a firearm during the commission of such felony, which charges arose when, using an informant, undercover officers arranged to sell Moon and his co-defendant, Miller Sutton, Jr., a kilogram of cocaine and arrested him therefor after Moon showed the officers the $17,000 he brought to pay for the narcotics; a .357 caliber handgun was found in Moon’s car within his reach. He appeals, and we affirm.

1. Moon challenges the sufficiency of the evidence against him on several grounds.

(a) Moon claims that while a “kilo” is a unit of weight, such measurement unit is not known in the United States and, thus, the State failed to prove to the jury an essential element of trafficking, i.e., that the weight of the cocaine Moon arranged to buy was 28 grams or more as alleged in the indictment.

A kilogram is an internationally recognized metric measurement which is the equivalent of 1,000 grams or approximately 2.2 pounds. While the better practice might be to prove the weight of any narcotics at issue in the same unit of measure referenced in the indictment, our cases in the past have recognized that proof of a “kilo” of a narcotic demonstrates a trafficking amount even when the indictment charged in grams. Further, this Court is not prepared to declare that the United States, which has recognized the metric system, is divorced from the international community, as urged by appellant.

But pretermitting the above, there was proof in the instant case that the kilo of cocaine appellant was attempting to purchase was the size of a “bag of flour” and that such was wrapped in duct tape and then covered in plastic. It was also established that a “kilo-sized deal” is very rare in Paulding County because “it’s a large amount of drugs.” Thereafter, it was established that 28 grams of cocaine, a trafficking amount, is little more than one ounce of cocaine.

It is common knowledge that a “bag of flour,” even a small one, weighs more than one ounce. Further, duct tape would not be “wrapped around” only one ounce of cocaine, and one ounce of cocaine is not such a “large amount” of the drug that it would be considered “very rare” in any county. Accordingly, there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that appellant was attempting to purchase an amount of cocaine over one ounce, i.e., 28 grams or more as charged in the indictment.

(b) Moon contends the evidence was insufficient because the testimony of the State’s witnesses, including the informant, “conflicted in numerous instances, contradicted each other and were inconsistent and irreconcilable with prior statements.” However, it is the jury’s responsibility to resolve conflicts in the evidence and determine the credibility of the witnesses. This Court looks only at whether there is sufficient evidence to support the jury’s ultimate verdict after its resolution of conflict and credibility issues.

Here, the State’s witnesses presented evidence to show that Moon and his co-defendant drove into Paulding County for the specific purpose of meeting undercover agents in the parking lot of the abandoned Winn-Dixie warehouse on Highway 120 and Business Route 6 for the sole purpose of exchanging $17,000 for a kilogram of cocaine. Upon meeting with the undercover agents, Moon and his co-defendant asked to see the “key.” Thereafter, Moon showed the $17,000 to the undercover agent before he was arrested. This evidence is sufficient for a rational trier of fact to have found Moon guilty as charged of attempted trafficking in cocaine.

(c) Moon contends the evidence is insufficient to show he possessed the firearm found in his vehicle, because it could have belonged to his co-defendant. We disagree.

During the attempted purchase of the kilo of cocaine, a .357 magnum pistol was found in Moon’s car wedged between the passenger seat and the center console within reach of Moon. The co-defendant was in the backseat. In addition, the State introduced a similar transaction wherein during a traffic stop and subsequent consent search for narcotics, Moon was arrested for, inter alia, carrying a handgun that was concealed under the passenger seat of the car he was driving. Thereafter, during a subsequent search incident to arrest, 14 grams of cocaine were found on Moon’s person. We find this evidence sufficient for a rational trier of fact to have found that, in the instant case, Moon repeated his earlier conduct/modus operandi and possessed a firearm while engaging in a felony violation of the Georgia Controlled Substances Act.

2. Next, in several claims of error, Moon contends that he received ineffective assistance of counsel at trial. Upon review of the claims as alleged, we disagree.

The proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Further, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

(a) Moon claims his attorney was ineffective for failing to file a motion to suppress because his “warrantless arrest was made without probable cause in that the arrest was predicated on information provided by an informant who was totally unreliable.” However, this claim of error goes to the requirement of reliability attendant when an officer asserts probable cause for arrest or search based upon hearsay information from a confidential informant. The establishment of such reliability requirement does not exist when, as in this case, the informant testifies at trial. In such instance, the issue of the informant’s reliability and the veracity of his information are questions for the jury to resolve. “[The testifying informant’s] veracity was subject to attack on cross-examination, and the jury, as always, was the sole arbiter of witness credibility.” Accordingly, a motion to suppress on the basis as alleged would be meritless and cannot serve as a basis for ineffective assistance of counsel.

(b) Moon contends his trial counsel was ineffective because he failed to move for a directed verdict at the close of the State’s evidence; he claims that such failure prevented the trial court’s review of the sufficiency of the State’s evidence. Our decisions in Division 1 (a), (b), and (c), supra, render the instant claim moot, since the State’s evidence was sufficient to support conviction.

(c) Moon contends his trial counsel was ineffective for failing to utilize a transcript of his earlier probation revocation for the instant offense in order to impeach the trial testimony of Agent Donny Scott, the lead investigating officer who also testified at the revocation hearing. However, we have reviewed the transcript of the revocation hearing in relation to the witness’ trial testimony. We find nothing so inconsistent between the two that the failure to use such transcript for impeachment purposes would demonstrate ineffective assistance of trial counsel. In that regard, the impeaching “conflicts” Moon urges by brief were either brought out during trial, did not involve a factual conflict in the agent’s testimony, or did not involve the probation hearing transcript at all. Accordingly, neither error nor prejudice has been shown.

(d) Meritless also is the claim that trial counsel was ineffective for failing to subpoena medical information that Moon’s right arm was broken and in a cast, thereby making it “impossible” for Moon to have opened the trunk of his vehicle in order to retrieve the money therefrom. Evidence that Moon was wearing a cast on his right arm came out during the State’s case. And at the hearing on the motion for new trial, Moon’s attorney testified that Moon had “staffed] at all times that he was going to tell the jury about his arm and that he had nothing to do with this particular crime, and he changed his mind at the time of the trial after the State ended its case.” The attorney testified that Moon’s decision not to testify took him completely by surprise, and thus there was no time to subpoena medical records so as to attempt to do what Moon had insisted all along he would do. Accordingly, the instant claim of ineffective assistance does not demonstrate attorney error.

Decided December 6, 2001.

Tony L. Axam, for appellant.

James R. Osborne, District Attorney, for appellee.

(e) Moon’s remaining claims of ineffective assistance of counsel are waived because they were not raised below at the motion for new trial. “Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion.”

3. Moon next challenges the admission of similar transaction evidence of Moon’s prior possession of a firearm during the commission of a felony. “But [Moon] failed to object to the introduction of the similar transaction evidence at trial, which waived the issue on appeal. The rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it.”

4. In addition, we find no error in testimony from similar transaction witness Officer Tim Carter that the substance found on Moon during the prior incident tested positive for cocaine. With regard thereto, Moon pled guilty to possession of cocaine with the intent to distribute such, and a certified copy of his guilty plea to that offense went before the jury. Thus, Carter’s testimony “was merely cumulative of other evidence properly before the jury. This enumeration presents no grounds for reversal.”

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       See the American Heritage Dictionary (3rd ed.), p. 991.

       See, e.g., York v. State, 242 Ga. App. 281, 283 (528 SE2d 823) (2000); Obiozor v. State, 213 Ga. App. 523, 527 (445 SE2d 553) (1994).

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

        Warden v. State, 247 Ga. App. 91, 92-93 (543 SE2d 388) (2000).

        McCormick v. State, 228 Ga. App. 467-468 (1) (491 SE2d 903) (1997); Woods v. State, 224 Ga. App. 52, 55 (4) (479 SE2d 414) (1996).

       (Citation and punctuation omitted.) Cromartie v. State, 241 Ga. App. 718 (1) (527 SE2d 228) (1999).

        Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). See also the old two-prong test set forth in Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964).

       (Citation omitted.) Walthour v. State, 269 Ga. 396, 398, n. 8 (497 SE2d 799) (1998).

        Hendrix v. State, 242 Ga. App. 678, 680 (530 SE2d 804) (2000).

       (Citation and punctuation omitted.) Thompkins v. State, 272 Ga. 835, 836-837 (2) (c) (536 SE2d 747) (2000).

       (Citations and punctuation omitted.) McNair v. State, 240 Ga. App. 324, 325 (2) (523 SE2d 392) (1999).

        Cleveland v. Bryant, 236 Ga. App. 459, 461 (4) (512 SE2d 360) (1999).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A2357.
    EICHELBERGER v. THE STATE.
    (557 SE2d 439)
   Eldridge, Judge.

Following a bench trial in the Superior Court of Cobb County wherein the parties stipulated to the State’s case as made out in the hearing on the motion to suppress, Avery Eichelberger was found guilty of trafficking in cocaine (more than 28 grams) and misdemeanor possession of marijuana. He appeals and contends the trial court erred in denying his motion to suppress based upon an improper stop of his vehicle. Because we find no error, we affirm.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

With these principles in mind, the evidence of record shows that on April 17, 1999, several members of the Cobb County Police Department were doing tactical surveillance in the areas of Powers Ferry Road, Akers Mill Road, and Cumberland Mall on the lookout for a person or persons fitting the description of an offender identified at the time as the “Northside Rapist” who had been preying on young women in apartment complexes in the vicinity. At approximately 1:30 a.m., Officer Don May and his partner Don Massey spotted a dark red Ford sport utility vehicle (“Ford”) sitting in the parking lot of one of the apartment complexes under stakeout. The tint on the windows of the Ford made it difficult to ascertain who was in the vehicle, but a male, later identified as Kenneth Ferrell, was in the driver’s seat apparently “loitering” in the lot. The officers, in an ¡unmarked vehicle, took up a position close by and observed the male counting a large sum of money. After five or ten minutes, another male, later identified as appellant Eichelberger, came out of an apartment and got into the Ford; he, too, appeared to be counting a large amount of money.

As the Ford pulled away, the officers noted that the vehicle had a dealer’s drive-out tag. Based upon their experience, drive-out tags are often used to hide stolen vehicles; to hide vehicles that the owner has failed to register in order to avoid paying ad valorem tax; and to mask the identity of a vehicle during criminal activity. The undercover officers radioed for Officer Michael Yancey, who, because he was driving a marked patrol unit, acted upon the undercover officers’ requests to stop specified vehicles. In addition, the officers called for another undercover vehicle to aid in the stop. The surveillance vehicles followed the Ford at a distance at which they could not be seen until Yancey arrived. Yancey was driving a blue GMC Yukon with a siren, a light bar on the roof, two four by six blue lights in the grill, flashing headlights and taillights, and gold letters on the sides, hood, fenders, and back door stating “Police”; in addition, the Yukon, as a canine unit, also stated “Police Dog” in red letters on the side windows.

Yancey eventually overtook and passed the surveillance units on Atlanta Road, a four-lane highway. He located the Ford a short distance away on Atlanta Road and pulled in behind it. Both vehicles were traveling at approximately 35 to 45 mph in the left lane of the two southbound lanes. Yancey activated all the emergency lights on his vehicle, as well as his siren, in an attempt to execute a stop. At the same time, the two unmarked surveillance units which had been behind the Ford pulled alongside it in the right lane: one unit passed the Ford on the right, pulling into the left lane three hundred yards ahead and then gradually slowing down in order to force the same upon the Ford; the other unit remained in the right lane beside the Ford.

At first it appeared that “[t]he vehicle began stopping as if he was going to go ahead and comply with the direction by blue lights and siren.” Officer Yancey testified at the motion to suppress that the following then occurred:

Almost immediately the suspect vehicle [Ford] braked abruptly, and so I got on the brakes to keep from hitting them. As soon as I got on the brakes, they accelerated rapidly away. We had the surveillance car in front, and they tried to go between me and the surveillance car. I came up on the left side, and blocked them in on the left side. They darted around to try to go around on the right side, and the surveillance car came up on the right side and blocked them in on the right side. They came back to the left and tried to go between the surveillance car and my vehicle a second time. We were going real slow by this time, and got them stopped. At that point there was no room for them to go between me and the surveillance vehicle.

Yancey testified that the Ford accelerated rapidly a couple of hundred feet before reaching the surveillance unit in front of him and attempting to go around. It was only because Officer Yancey accelerated in kind and pulled to the Ford’s left that such action was prevented: “And it was my positioning of the vehicle that forced him to stay behind the unmarked car.” After the Ford attempted to bolt to the right and was cut off by another unit, it “had to stop. He had no place to go.” Thereafter, an investigation ensued which included a free air search by the canine present on the scene in Yancey’s marked K-9 unit. The cocaine for which appellant Eichelberger was charged was found on his person.

At the hearing on the motion to suppress, all of the officers who testified stated that the Ford was attempting to flee from the stop. During the bench trial, the driver of the Ford, Ferrell, testified that he had not attempted to flee but that the officers “swooped” down on him in unmarked vehicles; that he briefly swerved to the left in order to avoid hitting one of the unmarked cars which braked abruptly in front of him; and that he did not see any blue lights until after the stop was completed. The trial court specifically found that the Ford had attempted to flee. Held:

1. Eichelberger contends that Ferrell’s version of events was “uncontroverted,” and thus there was no basis upon which the trial court could find the Ford was attempting to flee. However, “ [i] t is the trial court’s duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous.” Here, the officers involved testified that after Yancey initiated his blue lights and siren, the Ford driven by Ferrell attempted to flee therefrom. Their testimony provided an objective basis about the movements of the Ford from which such conclusion could legitimately be drawn. The trial court resolved the conflict between the officers’ testimony and Ferrell’s testimony by making a credibility determination as to who was telling the truth and specifically found that the Ford was attempting to flee from the police. As there is evidence to support such finding, it is not clearly erroneous and will be upheld.

2. Based upon our holding in Berry v. State, Eichelberger contends that since it is impermissible to stop a vehicle in order to investigate the validity of a drive-out tag, the stop in the instant case was impermissible. However, regardless of the propriety of an officer’s basis for the execution of a Terry traffic investigative stop, attempting to flee from such stop is a separate crime altogether, i.e., fleeing or attempting to elude a police officer. Such offense does not require that an investigative traffic stop be proper, and this Court will not find that the determination of whether there is a “legal” basis for a traffic stop belongs to the driver, thereby giving him the right to ignore blue lights and a siren if he determines he is being stopped illegally. “Assuming, arguendo, that the stop lacked articulable suspicion, [the] remedy was a motion to suppress the fruit of the illegal stop. ... A Terry violation does not provide carte blanche to violate OCGA § 40-6-395 (a).” Accordingly, stopping the Ford for attempting to elude was appropriate, regardless of the officers’ basis for the initial approach.

Decided December 6, 2001

. J. Alfred Johnson, for appellant.

Patrick H. Head, District Attorney, Richard H. Kimberly, Jr., Amelia G. Pray, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

        Gilbert v. State, 245 Ga. App. 809, 810 (539 SE2d 506) (2000).

       OCGA § 40-6-395 (a).

        Davis v. State, 235 Ga. App. 10, 11 (1) (507 SE2d 827) (1998).

        Wilburn v. State, 230 Ga. App. 619 (1) (497 SE2d 380) (1998).

       248 Ga. App. 874 (547 SE2d 664) (2001).

       A fact about which the officers were unaware since the stop in the instant case occurred long before this Court overruled existing law and held such stop to be improper. Berry v. State, supra at 890-896 (Eldridge, J., dissenting).

        Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).


author: Miller, Judge.

text:
    A01A2384.
    MIJARES v. THE STATE.
    (556 SE2d 927)
   Miller, Judge.

Jose Angel Mijares appeals the denial of his motion to suppress evidence and his ensuing conviction after a stipulated bench trial of trafficking in methamphetamine. He contends that (1) the State failed to establish venue, (2) the search of his person was invalid, and (3) certain testimony was inadmissible hearsay. We discern no error and affirm.

Viewed in the light most favorable to the court’s ruling, the record shows that a detective with the City of McDonough Police Department, through the use of a confidential informant, arranged to buy drugs from Mijares. At the specified location, with Mijares standing beside his parked car, an officer working in tandem with the detective approached Mijares and asked him if he could talk to him. Mijares answered affirmatively. The officer then asked him if he could pat him down and again received an affirmative response. The officer then felt a large bulge in a pocket and asked permission to remove the contents of the pocket, which was given. Upon removal, the contents appeared to the officer to be a large quantity of methamphetamine.

1. Mijares first contends that the State failed to prove venue in Henry County. The detective testified, however, that “[t]he location [for the buy] was described to be at the Mo-Joe’s Chicken on Jonesboro Road, which is in the city of McDonough, Henry County, Georgia.” The detective’s further testimony and the testimony of the cooperating officer were to the effect that all of the operative facts occurred at that location. Accordingly, this enumeration is without merit.

2. Mijares argues that the trial court erred in denying his motion to suppress the evidence removed from his pocket. As we recently stated in State v. Ledford, however,

[i]n Georgia, we recognize three levels of police-citizen encounters: In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. This tier provides no Fourth Amendment protection.

As we also noted in Ledford, “it is well established that an officer’s approach to a stopped vehicle and inquiry into the situation are not a stop or seizure but rather clearly fall within the realm of the first type of police-citizen encounter.” “Further, we have found that requests to search made during the course of a first level police-citizen encounter do not transform such encounter into a second tier Terry stop: ‘it is clear that merely requesting consent for a search is not a seizure and does not require articulable suspicion.’ ” In Led-ford, as here, “[t]he [officer] asked for multiple consents to search. [The defendant] voluntarily consented to each search requested.”

3. Mijares contends that the trial court erred in allowing the detective to testify as to what the confidential informant, who did not testify, told him Mijares said during phone conversations between the confidential informant and Mijares. Even assuming this to be inadmissible hearsay, however, we hold that it is entirely cumulative of the testimony of the cooperating officer regarding his encounter with Mijares and Mijares’s successive consents to talk, be patted down, and allow removal of the contents of his pocket. Accordingly, any error in the admission of this testimonial evidence was harmless.

Decided December 6, 2001

Sexton & Morris, Ricky W. Morris, Jr., for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Thomas R. McBerry, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

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

       See Wilbanks v. State, 251 Ga. App. 248, 256-257 (6) (554 SE2d 248) (2001).

       Id.

       247 Ga. App. 412, 413-414 (1) (a) (543 SE2d 107) (2000).

       (Footnote omitted.) Id.

       (Punctuation and footnote omitted.) Id. at 414 (1) (a).

       (Footnote omitted.) Id.

       Id. See also Stovall v. State, 251 Ga. App. 7, 9-10 (1) (553 SE2d 297) (2001) (first-tier encounter where officer approached already-stopped driver, made inquiry, and obtained consents, successively, for pat-down, removal ■— by driver — of pocket contents, and search of wallet).


author: Phipps, Judge.

text:
    A01A2413.
    WIMBUSH v. CONFEDERATE PACKAGING, INC.
    (556 SE2d 925)
   Phipps, Judge.

A belt drive on Confederate Packaging, Inc.’s cardboard box folding machine caught the pants leg of employee Bernard Wimbush, injuring his foot and destroying his pants and one boot. Wimbush alleges that the accident occurred, in part, because Confederate Packaging had removed a safety device from the machine. Wimbush received workers’ compensation benefits from Confederate Packaging for his physical injuries. He also sued Confederate Packaging for negligence in removing the device, seeking compensatory damages for the injury to his clothing and punitive damages for the alleged intentional creation of a dangerous condition. The trial court granted Confederate Packaging’s motion for summary judgment, ruling that that claim was barred by the exclusive remedy provision of the Workers’ Compensation Act. Wimbush appeals, and we affirm.

The facts of this case are indistinguishable from those in Superb Carpet Mills v. Thomason. There, two employees were injured on the job when a latex tank exploded. Both employees received benefits under the Workers’ Compensation Act for their personal injuries. They also sued their employer to recover property damage to their clothing and “additional damages for aggravating circumstances” — namely, the employer’s knowledge that safety devices on the tank had been altered.

We held that the employees’ claims for property damage were not barred by the exclusive remedy provision of the Workers’ Compensation Act. We noted that although the remedies provided by the Act are exclusive within the field of its operation, the Act does not prohibit an action for damages as to injuries it does not cover. Because the Act does not provide a remedy for damage to personal property, we held that it does not prohibit an action for damages to personal property.

Nevertheless, we concluded that the employees could not recover aggravated damages, which are based not on a plaintiff’s injuries, but on the aggravated nature of the defendant’s conduct. Because the employees’ personal injuries and property damages arose from the same conduct, and the Workers’ Compensation Act precludes recovery of additional damages for an employer’s wilful or intentional acts, we held that the employees could not recover aggravated damages on their property loss claims. Applying Superb Carpet Mills to the facts of this case, the trial court correctly ruled that Wimbush could not recover punitive damages from his employer.

Wimbush, however, urges us to overrule Superb Carpet Mills to the extent it prohibits recovery of punitive damages. He argues that it is inconsistent to hold that property damage claims are beyond the purview of the Act, but that the Act nevertheless prohibits recovery of punitive damages for such claims. As Wimbush puts it, “[i]f the Act doesn’t bar the [property loss] claim, it doesn’t bar the damages recoverable for that claim.”

Although we recognize the inconsistency noted by Wimbush, we will not overrule our decision in Superb Carpet Mills so as to further limit the tort immunity extended to the employer by the Workers’ Compensation Act. The bedrock principle of the workers’ compensation system is that employers are obligated to pay their employees prompt income and medical benefits for work-related injuries without regard to fault, in exchange for immunity from tort liability. The exclusive remedy provision of the Act would bar a suit by Wimbush against Confederate Packaging for damages of any kind — compensatory or punitive — for the injury to his foot. To allow Wimbush to include a demand for punitive damages in his lawsuit for property loss would enable him to circumvent the exclusive remedy provision of the Act. As Confederate Packaging points out, nearly all on-the-job injuries result in some degree of damage to an employee’s clothing or other personal property.

Decided December 6, 2001

Warshauer, Woodruff, Thomas & Wallace, Michael J. Warshauer, Bradford W. Thomas, for appellant.

Jones, Cork & Miller, Carr G. Dodson, for appellee.

Judgment affirmed.

Smith, P. J, and Barnes, J., concur.

       See OCGA § 34-9-11.

       183 Ga. App. 554 (359 SE2d 370) (1987).

       Id.

       Id. at 555, citing Covington v. Berkeley Granite Corp., 182 Ga. 235, 237-238 (184 SE 871) (1936).

        Solis v. Lamb, 244 Ga. App. 8, 9 (2) (534 SE2d 582) (2000); Sheehan v. Delaney, 238 Ga. App. 662, 663 (1) (521 SE2d 585) (1999).


author: Blackburn, Chief Judge.

text:
    A01A2421.
    In the Interest of K. B., a child.
    (556 SE2d 922)
   Blackburn, Chief Judge.

Following a hearing, appellant, the putative father of K. B., appeals the termination of his parental rights, contending that the evidence was insufficient to support the termination. For the reasons set forth below, we affirm.

On appeal, we must determine

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines' the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of R. N.

The record shows that K. B. was bom in July 1996 and appellant was arrested for selling cocaine in September of that year. At the time of the termination hearing, the appellant remained incarcerated, as he had been for almost all of K. B.’s life. Following appellant’s incarceration, the Department of Family & Children Services (DFACS) took custody of K. B. on September 8, 1999.

While K. B. was in DFACS’ custody, a case plan was developed for reunification with appellant. The main goals of this plan required appellant to: (1) formally and legally legitimate K. B.; (2) provide financial support for K. B.; and (3) develop a proper parent-child relationship with the child. Despite the fact that this case plan was presented to appellant every six months after DFACS took custody of K. B., appellant failed to satisfy any of the goals of the plan. He did not legitimate K. B., he provided no financial support, and, according to the DFACS workers assigned to his case, he had no contact with K. B. at all.

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is “present clear and convincing evidence of parental misconduct or inability.” OCGA § [15-11-94 (a)]. Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § [15-11-94 (b) (4) (A)]. ... In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

In the Interest of V. S.

No issue remains in this case as to whether K. B. is a deprived child. Appellant never appealed the original deprivation order, he presently concedes deprivation, and the record provides clear and convincing evidence that the child was given insufficient care. Therefore, only the remaining three prerequisites for termination are considered here.

The evidence supports the trial court’s determination that lack of proper parental care or control is the cause of the deprivation. In this case, appellant has effectively abandoned K. B. He has provided no support for the child, and, despite the fact that he was facing termination of his rights, he did not attempt to establish a parent-child relationship. Furthermore, “[i]n determining whether the child is without proper parental care and control, the court shall consider . . . [the c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-94 (b) (4) (B) (iii).

Although criminal conviction and incarceration do not always compel termination of parental rights, serving time as a convicted felon will support a termination of parental rights when adequate aggravating circumstances are shown to exist — such as failure to comply with goals for family reunification or failure to provide parental care and support.

In the Interest of R. H.

Based on all of these factors, clear and convincing evidence supported the trial court’s determination that lack of proper parental care and control was the cause of K. B.’s deprivation.

This evidence also supports the juvenile court’s determination that the deprivation is likely to continue.

Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. The court was entitled to infer from the evidence that, despite the best efforts of DFACS and manjr other social workers and charities, the same pattern of deprivation would continue [if] the [child was] reunited with [his father].

(Citations and punctuation omitted.) In the Interest of R. N, supra at 204 (1) (c).

The record also supports a finding that K. B. is likely to be harmed by the continued deprivation. As discussed above, K. B. has been forced to grow up without his father, who has been, incarcerated the majority of the child’s life. Furthermore; despite his knowledge of the pending termination, appellant failed to satisfy any of the goals of his reunification case plan.

Finally, the record supports a finding that termination of appellant’s parental rights is in the best interest of K. B. Those factors used to show a parent’s inability to properly care for his child may also serve as proof that termination of his parental rights is in the best interest of the child. In the Interest of G. K. J. And, although appellant now claims that he can care for K. B. with the help of his mother, “ ‘the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ ” In the Interest of D. I. W.

Judgment affirmed.

Pope, P. J, and Mikell, J., concur.

Decided December 6, 2001.

Robert M. Goldberg, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, W. Ashley Hawkins, for appellee.

       K. B.’s biological mother consented to the termination of her parental rights, and she is not a party to this appeal.

        In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

        In the Interest of V.S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

        In the Interest of R. H., 240 Ga. App. 551, 553 (2) (524 SE2d 257) (1999).

        In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988).

        In the Interest of D. I. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994).


text:
    A01A2497.
    HIGHTOWER v. THE STATE.
    (557 SE2d 434)
   Eldridge, Judge.

A Fayette County jury found Allen Lane Hightower guilty of violating the terms of his probationary driver’s license; DUI — less safe driver; DUI — excessive blood alcohol content; and no proof of insurance. Hightower appeals and claims in his sole enumeration of error that reversal is required because the record fails to show that he knowingly elected to represent himself at trial after being warned of the dangers of such choice. We must agree.

Whether a defendant is indigent or whether he can afford to retain counsel, his decision to proceed pro se must be accompanied by — if not an understanding of the dangers of such decision — at least the warning that self-representation entails certain risks inherent in an untrained layperson’s attempt to perform in an arena that calls for years of specialized training. Contrary to the implication in some appellate decisions, the warnings required to meet constitutional muster need not take any rigid form, and specific questions need not be asked on the record. Instead, “[t]he record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.”

In this case, the only reference in the record to Hightower’s decision to represent himself is the following colloquy — occurring at the conclusion of the State’s case — between the trial court and High-tower, when Hightower asked for a continuance in order to get witnesses:

Court: No, sir. Today’s the day of your trial.
Hightower: Okay. And I wasn’t aware I was going to trial today.
Court: Mr. Hightower, you understand you were on a calendar, sir?
Hightower: Yes, sir.
Court: And this calendar was published — we had a week of trials last week, and we had a week of trials scheduled for this week, and everybody that’s on that calendar is subject to being ready for trial. You understand that, don’t you? Hightower: Now I do. I didn’t at the time.
Court: Well, you’re representing yourself?
Hightower: I would like to have a court-appointed attorney or something.
Court: Sir, have you ever made application for a Gourtappointed attorney?
Hightower: I — I make — I make too much money.
Court: Well, we’ve been through that before.
Hightower: Yes, sir.
Court: And you were told to get an attorney. Are you going to represent yourself?
Hightower: Yes, sir.

It appears clear from the above that some type of discussion about hiring an attorney and self-representation occurred at another time. However, what this prior discussion entailed and its effect on Hightower’s decision to represent himself at trial are absent from the record. The trial court in the instant case may well have had a lengthy and constitutionally adequate conversation with Hightower about the risks of self-representation. And Hightower may well have decided to represent himself despite the risks, rather than pay the money to hire an attorney. Moreover, if this prior conversation did indeed occur, it was not required to be on the record, although such would be “helpful in the appellate process.”

But when the precise substance of any such prior conversation is not before us, the record that is sent up for our consideration must reflect that a prior discussion encompassing the risks of self-representation did in fact occur, and that, despite the warnings given, the defendant knowingly decided to proceed pro se: “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.”

Decided December 6, 2001.

William A. Fears, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

Here, on the basis of the record before us, we cannot say High-tower was warned of the dangers of proceeding pro se and nevertheless made a knowing choice to represent himself. Hightower’s statement that he cannot qualify for appointed counsel because he “make[s] too much money,” coupled with the trial court’s reference that such conversational road has been traveled before, does not even begin to meet the State’s burden to show that Hightower decided to proceed pro se after being warned of the risks attendant upon such choice. For the sake of credibility, if nothing else, the State would have been well advised to concede this point rather than attempt a one-page, completely unsubstantiated argument that Hightower “had been fully advised of his rights previously.” “When the record is silent, waiver is never presumed [,] and the burden is on the [S]tate to present evidence of a valid waiver.” Such burden was not met in this case.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       See Parks v. McClung, 271 Ga. 795, 798 (524 SE2d 718) (1999) (“inquiry is addressed to a defendant’s understanding of courtroom procedure and his ability to conduct a defense”).

       (Punctuation omitted.) Jones v. State, 272 Ga. 884, 885-886 (2) (536 SE2d 511) (2000).

        Holt v. State, 244 Ga. App. 341, 343 (1),(535 SE2d 514) (2000). See Dunn v. State, 234 Ga. App. 623, 625 (3) (507 SE2d 170) (1998) (“extrinsic evidence” such as trial court’s affidavit that defendant fully advised of dangers of self-representation and knowingly decided to proceed pro se is sufficient to establish waiver).

        Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981).

        Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984); Kirkland v. State, 202 Ga. App. 356, 357-358 (414 SE2d 502) (1991).


text:
    A01A0926, A01A0927.
    KELLER v. THE STATE (two cases).
    (558 SE2d 5)
   Phipps, Judge.

Gerald W. Keller appeals the trial court’s denial of his motions for new trial and for sentence clarification and modification. Although Keller filed separate notices of appeal, we have consolidated the cases for review. Because Keller has failed to invoke this court’s jurisdiction, we dismiss both appeals.

A grand jury indicted Keller for being an habitual violator, driving under the influence of alcohol, possession of an open container, violation of the Georgia Controlled Substances Act, improper equipment, speeding, no proof of insurance, and giving a false name. During a trial recess, Keller absconded. The court proceeded with the trial in his absence, after determining that his absence was voluntary. The jury found him not guilty of violation of the Georgia Controlled Substances Act and guilty of all other charges. On April 30, 1997, the court entered its judgment of conviction and imposed sentence. Having determined that Keller had “fled the jurisdiction of the Court,” the court entered an order on May 19, 1997, permitting Keller’s counsel to withdraw.

On June 23,1997, Keller, proceeding pro se, filed a “motion to set aside judgement [sic] and convictions post conviction relief.” On August 12, Í999, with new, post-conviction counsel, Keller filed a “request for out-of-time appeal,” incorporating the grounds raised in the June 23, 1997, motion, none of which addressed his failure to file timely a notice of appeal. That same day, Keller filed a motion to modify sentence.

On April 19, 2000, a hearing was held on Keller’s motions, during which the trial court noted that Keller had “remained a fugitive from this Court and a fugitive from justice during the trial and for an extended period of time after that.” The court denied Keller’s motion to modify sentence and permitted post-hearing briefs on the other motions. Keller, through counsel, filed a “memorandum in support of motion for new trial/motion for out-of-time appeal,” although Keller had never filed a pleading entitled “motion for new trial.” The memorandum did not address Keller’s failure to file timely a notice of appeal. On June 15, 2000, the trial court denied the “motion for new trial/motion for out-of-time appeal.” On July 12, 2000, Keller filed a notice of appeal from “the denial of a Motion for New Trial,” which later was docketed in this court as Case No. A01A0926.

On September 22, 2000, Keller, through counsel, filed a motion to clarify and modify his sentence, pointing out that the trial court had not entered a sentence on the open container offense and claiming that because of that omission the Board of Pardons & Paroles was withholding action on his case. He also complained of his one-year sentence for the no proof of insurance offense, claiming that the evidence did not authorize such a penalty. On November 9, 2000, the trial court entered a “suspended sentence” for the open container offense. On December 1, 2000, Keller filed a notice of appeal from that sentencing order, which was docketed in this court as Case No. A01A0927.

The State has moved to dismiss both appeals on jurisdictional grounds. This court must raise the question of its jurisdiction in all cases in which there is doubt whether jurisdiction exists. “The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.”

Case No. A01A0926

1. Keller did not caption any of his pleadings as a motion for new trial. However, a review of the substance of his “motion to set aside judgement [sic] and convictions post conviction relief” shows it is actually a motion for new trial. But that motion, filed 54 days after his conviction and sentence, was void as untimely because he failed to file it within 30 days of the entry of the conviction and imposition of the sentence or to seek an extension of time for doing so. Although Keller filed his notice of appeal within 30 days of the denial of his motion for new trial, Keller’s void motion for new trial did not toll the 30-day limit within which he was required to file a notice of appeal from the underlying judgment and sentence. Further, we cannot construe Keller’s untimely motion for new trial as an extraordinary motion for new trial because he did not attempt to show “some good reason . . . why the motion was not made during [the 30-day] period” following entry of the judgment and sentence. Consequently, this appeal is dismissed as untimely.

2.

The ineffectiveness of appellate counsel can result in the dismissal of an appeal of right without violating the defendant’s right to due process as long as the defendant’s due process right to an appeal is protected by provision of a remedy for frustrated right of appeal. Since an out-of-time appeal is an available remedy where the loss of the right of conventional appellate review is due to defense counsel’s error, we may dismiss an appeal of right for failure to follow appellate procedural prerequisites.

To obtain an out-of-time appeal, Keller must apply for that relief in the trial court and establish “to [that] court’s satisfaction that the appellate procedural deficiency was due to appellate counsel’s failure to perform routine duties. . . . [Cits.]” However, an out-of-time appeal is not authorized if the loss of the right to appeal is not attributable to ineffective assistance of counsel but to the fact that the defendant slept on his rights.

In this case, although Keller filed a request for out-of-time appeal, he did not attempt to explain its untimeliness. While the trial court found that Keller absconded from the trial and was “eventually arrested,” it did not address specifically a claim of whether Keller was entitled to an out-of-time appeal because of any failure of Keller’s counsel, and not of Keller. The record is silent regarding what, if anything, transpired between Keller and his trial attorney following Keller’s conviction but before the trial court entered its order permitting the attorney to withdraw. Further, Keller’s appellate brief does not challenge the denial of his request for an out-of-time appeal; it challenges only the denial of his motion for new trial and the judgment of conviction.

Accordingly, we order that a copy of this opinion be sent to Keller as well as to Keller’s present appellate counsel with direction to forward a copy to Keller. If Keller subsequently seeks and obtains permission from the trial court to pursue an out-of-time appeal, he then will have 30 days within which to file his notice of appeal to this court or motion for new trial with the trial court. If the trial court denies an out-of-time appeal, Keller will have a 30-day period within which to file a notice of appeal to this court.

Case No. A01A0927

3. Assuming that Keller may directly appeal the trial court’s order entered on his motion to clarify sentence, this appeal must also be dismissed. In his December 1, 2000 notice of appeal, Keller states that he is appealing the November 9, 2000 sentence and the April 30, 1997 conviction. But his appellate brief makes clear that he seeks to appeal only the conviction. The brief addresses only issues relating to the judgment of conviction and makes no claim that the November 9, 2000 sentence is erroneous. However, the appeal of the judgment of conviction, heretofore foreclosed by the untimeliness of the notice of appeal, may not be resurrected by extending the application of OCGA § 5-6-34 (d).

OCGA § 5-6-34 (d) provides that:

[w]here an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.

That Code section, however, does not allow revival of an untimely appeal of a final judgment. Keller may not “avoid the consequences of failing to file a timely direct appeal” simply by appealing from the order denying his motion to clarify sentence. “[S]uch ‘bootstrapping’ cannot vest this Court with jurisdiction to consider potential errors which could or should have been part of a direct appeal or timely motion for new trial.” Consequently, Case No. A01A0927 must also be dismissed for failure to file a timely notice of appeal from the conviction.

In an attempt to escape this result, Keller characterizes the November 2000 order on his motion to clarify sentence as completing his sentence and thus argues that the time for appealing his conviction did not begin until the entire sentence was rendered. Keller’s characterization misconstrues the record which clearly shows that during the sentencing hearing that occurred immediately after his trial, the court correctly determined that the maximum punishment for the open container offense was a $200 fine and then announced it would not impose anything as to that offense. In accordance, the sentencing order shows no punishment for that violation, while it imposes punishments for all remaining convictions. Sentencing on Keller’s conviction was complete at that time, and the 30-day period within which he was required to file a notice of appeal from the conviction commenced. In response to Keller’s September 2000 “Motion to clarify and modify sentence” that asserted that the Board of Pardons & Paroles was withholding action on his case because “the [c]ourt did not enter a sentence on [the open container count],” the trial court responded by entering an “Order on defendant’s motion to clarify sentence.” Contrary to Keller’s contention that this order completed his sentence and then started the time for an appeal of conviction, the order merely clarified that the sentence was suspended and that Keller had received no punishment for his open container violation. It did not have the effect of commencing a 30-day time limit for appealing his conviction.

Decided August 6, 2001

Reconsideration denied December 7,2001

Head, Thomas, Webb & Willis, Thomas J. Thomas, Jamie S. Wingler, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, W. Thomas Weathers III, Assistant District Attorneys, for appellee.

Appeals dismissed.

Smith, P. J., and Barnes, J., concur.

        Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995).

       (Citations and punctuation omitted; emphasis in original.) Id.

       See Marshall v. State, 229 Ga. 841 (1) (195 SE2d 12) (1972) (substance of a motion, not its name, controls treatment of motion).

        Porter v. State, 271 Ga. 498 (521 SE2d 566) (1999).

       Id. at 499; see OCGA § 5-5-40 (a).

       OCGA § 5-5-41 (a).

        Porter, supra.

       See id.; Williamson v. State of Ga., 182 Ga. App. 49 (354 SE2d 868) (1987).

       (Citations and punctuation omitted.) Porter, supra.

        Rowland, supra at 876 (2).

        Porter, supra at 500; see Sanders v. State, 242 Ga. App. 743, 744 (1) (531 SE2d 170) (2000); Keller v. State, 242 Ga. App. 150, 151 (1) (529 SE2d 167) (2000).

       See Ponder v. State, 260 Ga. 840 (1) (400 SE2d 922) (1991) (in ruling on a motion for an out-of-time appeal, the trial court is limited to considering whether counsel was ineffective regarding defendant’s right to appeal); Glass v. State, 248 Ga. App. 91, 92 (1) (545 SE2d 360) (2001) (“disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal”) (citation omitted).

       See Dunn v. Duke, 216 Ga. App. 829, 831 (1) (456 SE2d 65) (1995) (until an order is entered, no formal withdrawal of counsel can occur and counsel remains counsel of record).

        Rowland, supra at 875 (2).

       Id.

        Ponder, supra at 841 (1).

        Rowland, supra.

       See OCGA § 5-6-48 (f).

       See OCGA § 5-6-38 (a); Davis v. State, 233 Ga. App. 825, 826 (505 SE2d 801) (1998).

        Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997).

        Davis, supra at 826-827.


author: Ruffin, Judge.

text:
    A01A1108.
    WINGATE LAND & DEVELOPMENT, LLC et al. v. ROBERT C. WALKER, INC.
    (558 SE2d 13)
   Ruffin, Judge.

Robert C. Walker, Inc. (“Walker”) sued Wingate Land & Development, LLC, William Douglas Wingate, and Mary Wingate (collectively “Wingate”) alleging that Wingate owed Walker compensation for golf course architectural services. Following trial, the jury found in favor of Walker. After a separate bench trial on Walker’s claim for litigation expenses, the court also found in Walker’s favor. Wingate appeals, asserting the trial court erred in instructing the jury, admitting certain evidence, denying its motion for directed verdict, and entering judgment nunc pro tunc. For reasons that follow, we affirm.

Walker’s claims stem from Wingate’s development of the Stonebridge Golf & Country Club. In the planning stages, Wingate solicited golf course design proposals from architects, including Walker. In March 1994, Walker submitted a proposed design to Win-gate for consideration. The proposal included Walker’s standard services contract, which was dated March 29, 1994. The contract proposed a “Total Design Fee” of $165,000 and covered six phases of “Architectural Services,” which included “Frequent Construction Inspection Visits & Quality Control” during phase six.

After reviewing the proposal, Wingate informed Walker that it wanted the architect to do the project, but requested that Walker change the pay schedule in the proposed contract. Specifically, Win-gate asked Walker to amend the schedule so that a greater portion of the contract price was paid during the latter phases of Walker’s performance under the contract. Walker changed the payment schedule as requested. The new schedule required Wingate to pay Walker $5,000 upon execution of the agreement, $5,000 upon completion of phase one, $10,000 upon completion of phase two and $10,000 for phase three, $45,000 upon completion of phase four, $10,000 for phase five, and $20,000 upon completion of each quarter of phase six.

Walker returned the amended contract, still dated March 29, 1994, to Wingate and attached a $5,000 invoice “[f] or the initial payment for Golf Course Architectural Services and execution of agreement fee.” Although Wingate did not execute the agreement, following a June 17 meeting between the parties, Wingate paid Walker $5,000.

Walker immediately began drafting golf course plans. As Walker continued its work on the golf course, it invoiced Wingate for the services according to the schedule set out in the March 29, 1994 contract. On July 16, 1994, Walker submitted a $5,400 invoice which stated that it was for reimbursement of expenses and “[flor the completion of Phase I in accordance with our agreement of March 29, 1994.” After receiving the invoice, Wingate paid Walker $5,400. On October 11, 1994, Walker sent Wingate a $10,000 invoice which stated that it was “[flor the completion of Phase II of our agreement for architectural services,” and Wingate subsequently paid that invoice. On January 8, 1995, Walker submitted an invoice “[flor 50% completion of Phase III, Phase IV and Phase V as per our agreement.” The invoice charged $32,500 for “Professional Service Fees Due” and $2,843.22 for expenses. On February 16, 1995, Wingate issued Walker a check for $32,500, which indicated that it was payment of the January 8 invoice. In addition to specifically referencing the phases of work that were covered by each invoice, the July, October, and January invoices clearly provided that they were for golf course architectural services.

Walker continued performing the services required by the March 29, 1994 agreement. As provided in the agreement, the architect completed the plans and construction specifications for the different phases of construction, prepared invitations to bid for the construction, and assisted in the bid conferences. In March 1995, however, the working relationship between Walker and Wingate deteriorated. Wingate complained that Walker was not adequately supervising the contractors and that it was not “on the job on a daily basis.” On March 16, 1995, Walker invoiced Wingate $32,500 for completion of phases three through five. Although Wingate acknowledged that Walker did “a good job” on the invoiced services and that Wingate was satisfied with Walker’s performance as an architect, it paid only part of the invoice because of its complaints about “the things that [Walker] didn’t do.”

Elaborating on his complaints about Walker’s performance, William Wingate repeatedly testified that the parties orally agreed that Walker would be Wingate’s “project manager” and that there was no written agreement. William Wingate also claimed that Walker had agreed to be Wingate’s sole project “consultant” and “construction supervisor,” and that Wingate asked Walker to be the general contractor. According to William Wingate: “[Walker] assured me that [it] would furnish the architectural services and [it] would be the — instruction [sic] of the supervisors, and [it] would also assist in help in buying the materials and building stuff, and . . . would be there on a daily basis looking after the building.”

On March 14, 1995, Wingate sent Walker a letter reiterating his complaints about Walker’s lack of construction supervision and its failure to make daily visits to the site. In the letter, Wingate stated: “[t]his is the basis on which I gave you the job in designing the course, ... if you are unable to supervise these sub-contractors and be on the job on a daily basis you need to reduce your charges for this project for Architect work only.” Wingate subsequently asked Walker to reduce its fee to $100,000 if the architect wanted to stay on the job. Walker completed the project, performing the services required by the March 29, 1994 agreement, and Wingate paid the architect $100,000 for those services.

Walker subsequently sued Wingate for the remaining compensation allegedly owed by Wingate for Walker’s services. In its complaint, Walker asserted alternative causes of action for breach of contract, quantum meruit, and for an obligation on a commercial account. Walker also sought to recover its attorney fees on the ground that Wingate had acted in bad faith and had been stubbornly litigious.

On stipulation by the parties, the trial court bifurcated the trial, separating Walker’s claim for attorney fees, which was to be tried by the court, from the other claims, which were to be heard by a jury. At the trial on Walker’s claims of compensation due for architectural services, the court instructed the jury on all three of Walker’s alternative theories of liability. The jury rendered a verdict in Walker’s favor. The trial court then conducted a bench trial on Walker’s claim for attorney fees and rendered a judgment in Walker’s favor.

1. In two enumerations of error, Wingate asserts that the trial court erred in charging the jury on Walker’s claim of quantum meruit. Wingate argues that, because quantum meruit applies only in the absence of a contract, and the parties here agreed there was a contract, the court should not have submitted this claim to the jury. We disagree.

We note initially that Wingate appears to argue that Walker was required to proceed to trial on only one theory of recovery. Georgia law, however, permits a plaintiff to proceed to trial on alternative theories of recovery. As for the theories at issue here, it is true that “[t]here cannot be an express and implied contract for the same thing existing at the same time between the same parties,” and that a plaintiff is, therefore, “estopped to recover on quantum meruit where there exists an express agreement.” Wingate erroneously assumes, however, that this rule necessarily applied in this case. Although the evidence showed that Walker and Wingate desired to enter into a contract for Walker’s services, it also showed that, from the beginning, they disagreed about the type and extent of services required under the agreement. As stated above, at trial Wingate steadfastly maintained that there was no written contract and that the parties orally agreed that Walker was going to be Wingate’s “project manager,” “general contractor,” sole project “consultant,” and “construction supervisor.” Walker, on the other hand, contended that there was a written contract requiring only architectural services.

Under these circumstances, the jury could have found that Walker and Wingate failed “to reach a meeting of the minds.” Such deficiency would mean “that an express contract never existed between the parties,” and the jury would have been permitted to consider whether Wingate was liable under quantum meruit. Thus, evidence supported Walker’s claim of quantum meruit, and the trial court did not err in charging the jury on this theory of recovery.

2. Wingate also asserts that the trial court erred in charging the jury on Walker’s claim of obligation on a commercial account. Specifically, Wingate argues that a claim on commercial account “has no application in a situation where there is a specific contract for a specific amount.” In Division 1, however, we concluded that there was evidence from which the jury could have found that there was no contract. Thus, this assertion has no merit.

3. Wingate asserts that, during the bench trial on litigation expenses, the trial court erroneously admitted evidence of disputes involving other contractors on the Stonebridge project. Wingate challenges the similarity between the other disputes and the instant one and argues that “[t]he evidence of other business disputes was highly prejudicial but had no probative value on the issue of bad faith.”

Wingate has not shown, however, that it objected to the similar act evidence on this ground at trial. Although the record reveals that Wingate moved in limine to.exclude similar act evidence on the ground that such evidence is admissible only “if there was fraudulent intent in this controversy,” this is not the same argument asserted on appeal. The issue as raised is, therefore, waived.

4. Wingate asserts that the trial court erred in denying its motion for directed verdict on Walker’s claim for litigation expenses under OCGA § 13-6-11. According to Wingate, the court’s award was improper because the evidence established that a bona fide dispute existed between the parties, and there was no evidence that Wingate acted in bad faith. We disagree.

In reviewing Wingate’s assertions, we construe the evidence in a light most favorable to the trial court’s judgment and determine whether there is any evidence to support that judgment. “It is not for this Court to determine or to question how the [trial court, as factfinder,] resolved any apparent conflicts or uncertainties in the evidence.”

The evidence supported the trial court’s judgment. It showed that Walker provided its architectural services to Wingate under a written agreement that did not require daily site visits, construction supervision, or overall project management. In fact, from the time Walker submitted its initial proposal in March 1994, until March 1995 when Wingate sought to reduce Walker’s fee, both Walker and Wingate performed consistently with the terms of the March 29, 1994 written agreement. Walker and Wingate negotiated Walker’s compensation schedule based on the written agreement, Walker performed the various architectural services required by the agreement and submitted invoices pursuant to the agreement, and Wingate paid Walker in accordance with the agreement. Wingate’s complaints arising in March 1995, its denial of a written agreement, and its refusal to pay Walker the balance due under the written agreement are all “contrary to the position it had maintained for [approximately one year]. Under these circumstances, the evidence supported a finding of bad faith.”

Decided October 31, 2001

Reconsideration denied December 7,2001

Cannon & Meyer von Bremen, William E. Cannon, Jr., McCall, Finney & Phillips, Earl McCall, for appellants.

Donaldson, Bell & Pickett, Mark L. Pickett, for appellee.

5. Wingate asserts that the trial court erred in entering judgment nunc pro tunc. The record shows that the trial court signed the final judgment on March 15, 2000, but ordered “that the portion of this judgment related to phase I of the bifurcated trial is entered [n]unc pro tunc to April 12, 1999.” It appears that the court intended to give effect to the jury’s verdict on the date the verdict was rendered. Wingate argues that if the court or Walker wanted judgment entered on April 12, 1999, they should have then taken the appropriate action, and because they did not, the court was without authority to enter judgment nunc pro tunc. Wingate acknowledges, however, that the Supreme Court’s opinion in Mayor &c. of Savannah v. Champion permitted the trial court’s action in this case. Georgia law expressly authorizes courts “[t]o amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its own records, so as to make them conform to the truth.” We find no abuse of that authority here.

6. In two other enumerations of error, Wingate asserts, without any argument or citation of authority, that for the reasons set forth elsewhere in its brief, the trial court erred in denying its motions for judgment notwithstanding the verdict, for new trial, and to set aside the judgment. Lacking citation of authority and argument, these assertions are deemed abandoned.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See Franklin v. Gwinnett County Public Schools, 200 Ga. App. 20, 25 (2) (407 SE2d 78) (1991).

       (Punctuation omitted.) Gerdes v. Russell Rowe Communications, 232 Ga. App. 534, 537 (3) (502 SE2d 352) (1998).

        Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287, 290 (1) (241 SE2d 256) (1977). See also Sanders v. Commercial Cas. Ins. Co., 226 Ga. App. 119, 120-121 (1) (485 SE2d 264) (1997).

        Fonda Corp., supra at 292. See also Sanders, supra at 121-122.

       See Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 750 (6) (542 SE2d 151) (2000).

       See City of Warner Robins v. Holt, 220 Ga. App. 794, 796 (1) (c) (470 SE2d 238) (1996).

       Id.

        Hayes Constr. Co. v. Thompson, 184 Ga. App. 482, 484 (2) (361 SE2d 865) (1987). See also Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 218 (5) (489 SE2d 329) (1997) (bad faith existed where Department of Transportation threatened to withhold payment unless contractor submitted revised plans).

       Notwithstanding the court’s apparent intent, the record reflects that the jury actually rendered its verdict on April 2, 1999.

       54 Ga. 541, 542 (1875).

       OCGA § 15-1-3 (6).

       See Maloy v. Planter’s Warehouse &c. Co., 142 Ga. App. 69, 74-75 (3) (234 SE2d 807) (1977).

       See Court of Appeals Rule 27 (c) (2).


text:
    A01A1207, A01A1208.
    BP EXPLORATION & OIL, INC. v. JONES; and vice versa.
    (558 SE2d 398)
   Ruffin, Judge.

Ulrica Jones sued BP Exploration & Oil, Inc. (“BP”) for personal injuries she allegedly sustained at a BP-branded gasoline station in Byron. BP moved for summary judgment, which the trial court granted in part and denied in part. In Case No. A01A12Q7, BP appeals from the trial court’s partial denial of its motion for summary judgment. Jones cross-appeals in Case No. A01A1208, enumerating as error the trial court’s partial grant of summary judgment to BP. For reasons that follow, we affirm the grant of summary judgment in Case No. A01A12Q8 and reverse the denial of summary judgment in Case No. A01A1207.

On appeal, we review the grant or denial of a motion for summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmovant. Construed in this light, the record shows that, on November 14, 1997, Jones visited the BP gasoline station in Byron for tire service. An employee serviced the tire, and as Jones prepared to leave, Brandon Huff, another station employee, drove a large tow truck rapidly toward her car. After stopping the truck “very close” to Jones’ car, Huff called Jones a profane name and told her to move. Jones then followed Huff into the station office, asked why he had spoken to her in that manner, and requested the name of his manager. Huff refused to give his manager’s name, and, as the confrontation escalated, Huff pushed Jones through a plate glass window.

At the time of this incident, Brandon Huff’s father, Michael Huff, owned and operated the Byron BP through his corporation, Huff Enterprises, Inc. The Byron BP received its gasoline from Beck-ham Brothers Distributors (“Beckham”), a BP distributor that held a franchise agreement with BP.

Jones subsequently sued BP, Huff Enterprises, Brandon Huff, and Michael Huff for injuries she allegedly sustained during her confrontation with Brandon Huff. BP moved for summary judgment, and the trial court granted the motion as to Jones’ vicarious liability claims involving actual agency, apparent agency, joint venture, and respondeat superior. It denied, however, BP’s request for summary judgment on Jones’ direct negligence and punitive damages claims.

Case No. A01A1208

1. Jones argues that the trial court erred in granting BP summary judgment on her actual agency, apparent agency, and joint venture claims. We find no error.

(a) Actual agency. To support her actual agency claim, Jones must show that BP retained the right to control the “time, manner and method of” the Byron BP’s operations. As evidence of BP’s control, Jones cites primarily to BP’s Service Station Standards Manual.

Beckham’s franchise agreement with BP authorized Beckham to purchase BP products and resell those products to specific, independently owned stations, including the Byron BP. The agreement also gave Beckham a license to use the BP trademark and sublicense that trademark to gasoline stations approved by BP, “to the extent that such [stations] agree [d] to be bound by the terms and conditions of” the Beckham/BP agreement. Under the agreement, all stations supplied by Beckham were required to conform to BP’s Service Station Standards Manual. That manual established standards for things such as service station signs, use of the BP logo, graphics on the buildings, interior shop decor, lighting design, promotional displays, billboards, employee uniforms and personal appearance, and station cleanliness. Stations failing to conform to these standards could be debranded.

Although Jones argues broadly that the standards manual dictated the Byron BP’s day-to-day operations, the only daily operations she discusses involve the station’s appearance and cleanliness. She notes that the manual set standards for “what cleaners to use, when floors should be mopped and when products should be turned.” We have consistently held, however, that such standards do not constitute the type of control necessary to support a finding of actual agency. Rather, they are “a means of permitting BP to achieve a certain level of quality and uniformity within its system” and merely set forth the conditions under which gasoline stations, such as the Byron BP, can use the BP brand name. Similarly, neither the occasional station visits by BP personnel to verify conformity with these standards nor BP’s power to debrand a station for not conforming creates an agency relationship.

Thus, clear Georgia case law undermines Jones’ argument that the standards manual evidences the control necessary for actual agency. We recognize that these cases often involve parties with a franchisor-franchisee relationship or a written supplier agreement. Citing that fact, Jones argues that this authority does not apply here because, in her view, the Byron BP had no franchise or other contractual relationship with BP. Regardless of whether the Byron , station had any contractual agreement with BP, however, the control test governing actual agency is the same. And under that test, BP’s cleanliness and appearance standards do not raise a question of fact as to actual agency.

Furthermore, Michael Huff, owner of the Byron BP, testified that he never received a copy of the service manual or Beckham’s agreement with BP, which references the manual. He also denied any significant contact with BP, asserting that he dealt instead with Beckham. Indeed, as Jones asserts on appeal, BP had no contractual relationship with the Byron BP. According to Huff, he and his station manager set the rules and policies at the Byron BP station. BP did not control employee hiring, firing, or training, and BP did not set the Byron BP’s hours of operation.

The record lacks any evidence that BP reserved a right to control the time, manner, and method of the Byron BP’s operations. The trial court, therefore, properly granted BP summary judgment on the actual agency claim.

(b) Apparent agency. We also find no question of fact as to Jones’ apparent agency claim. To recover under this theory, Jones must show (1) that BP held the Byron BP out as its agent; (2) that she justifiably relied on the care or skill of the Byron BP based on BP’s alleged representation; and (3) that this justifiable reliance led to the injury.

Jones asserts that BP held the Byron BP out as its agent through its national advertising campaign, which, she claims, “represented to the public that all BP stations were its own.” BP’s advertising campaign revolved around the slogan “BP, we keep you moving.” According to a BP representative, BP used this slogan “to position [itself] as a brand that could be differentiated as a quick, fast experience for our customers with high-quality gasolines.” Other advertising tag lines included “we keep people moving with pay at the pump and our fast BP shops” and “we at BP will continue to provide lots of convenient locations.”

An apparent agency does not arise simply because an independent gasoline station displays a national oil company’s trademark. As we have held,

[i]t is indeed a matter of common knowledge and practice that distinctive colors and trademark signs are displayed at gasoline stations by independent dealers of petroleum product suppliers. These signs and emblems represent no more than notice to the motorists that a given company’s products are being marketed at the station.

Similarly, a national oil company’s advertising campaign to “solicit the public’s trust and confidence in its affiliates” does not necessarily render the oil company liable for injuries at an independently operated gasoline station. In short, the company does not open itself to liability merely by advertising its brand.

Certainly, the wording of an advertisement can create an apparent agency. In Watson v. Howard Johnson Franchise Systems, for example, billboards for the HoJo Inn, an independently owned and operated Howard Johnson franchise, described the hotel as “HoJo Inn by Howard Johnson.” The evidence showed that Howard Johnson knew about that slogan, which raised a factual issue as to whether Howard Johnson held the HoJo Inn out as its own. The Watson decision, however, does not demand reversal in this case.

We note initially that Watson involved local billboards relating to a specific hotel. In contrast, a national advertising campaign is at issue here. Jones argues that by using the pronouns “we” and “our” in its advertising, BP represented to the public that all BP service stations fell under BP’s control. We disagree. Under Georgia law, it is common knowledge that independent gasoline stations use the trademarks, emblems, and colors of national oil companies, such as BP. Given the public’s knowledge of independent dealerships^ we cannot find that BP held all BP stations out as its agents by using “we” and “our” in its national advertising. We also find no evidence of apparent agency in BP’s effort to assure the public that all BP stations offer fast, top quality service. Again, the public knows that independent dealers use the BP trademark and offer BP products. The advertisements cited by Jones do not undermine that common knowledge or represent that every BP-branded gasoline station comes within BP’s control. Under these circumstances, BP’s advertising campaign did not create an apparent agency as to its branded stations.

Furthermore, Jones has not pointed to any evidence that BP specifically held out the Byron BP as its agent. She has cited no advertisements that reference the Byron BP, and the Byron BP’s use of BP colors and emblems does not support her apparent agency theory. Jones asserts that the Byron BP failed, with BP’s knowledge, to post a sign indicating that it was an independently owned and operated station. Standing alone, however, failure to post such a sign does not permit an apparent agency finding. Accordingly, the trial court did not err in granting BP summary judgment on Jones’ apparent agency claim.

(c) Joint venture. Jones also argues that BP, Beckham, and the Byron BP entered into a joint venture, rendering BP liable for negligence attributable to the Byron BP. A joint venture arises “ ‘when there exist rights of mutual control as to the conduct of the various members of the enterprise.’ ” Mere business interdependency does not create a joint venture.

In Wells v. Vi-Mac, Inc., we rejected a joint venture argument analogous to that raised by Jones. There, a claimant injured at an independently owned Texaco station sued the company that supplied the gasoline and leased the station’s property and equipment to the station owner. We found that, although the company required the station owner to sell Texaco products and comply with Texaco’s cleanliness standards, it had no right to control the station’s manner of operation. Thus, because the company and the station owner “did not have mutual rights of control, there was no joint venture.”

A similar lack of mutual control exists here. As found in Division 1 (a), BP reserved no right to control the time, manner, and method of the Byron BP’s operations. In short, it did not have “ ‘mutual control as to the conduct of’ ” the Byron BP. Accordingly, the trial court properly granted BP summary judgment on Jones’ joint venture allegations.

Case No. A01A1207

In its appeal, BP argues that the trial court erred in denying its motion for summary judgment on Jones’ direct negligence and punitive damages claims. We agree.

2. Jones’ direct negligence claim arises under Restatement (Second) of Torts, § 324A. Under that section, which has been adopted in Georgia,

[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Jones argues that BP gratuitously undertook a duty to receive, handle, and resolve customer complaints at its branded stations, including those operated by independent dealers. The evidence reveals that BP accepted customer complaints through a toll-free telephone number, as well as through written correspondence and electronic mail. The evidence further shows that numerous consumers lodged complaints with BP regarding the Byron BP, alleging that the station and its employees overcharged, defrauded, and threatened customers. Based on this evidence, the trial court concluded that BP undertook a duty to receive and respond to customer complaints. It further found that a question of fact remained as to whether BP acted negligently in handling these complaints.

On appeal, BP argues that it never undertook a duty to resolve the complaints about the Byron BP, which it forwarded to Beckham for handling and resolution. Even assuming that BP undertook this duty, however, we agree with BP that Jones cannot sustain a cause of action under § 324A.

(a) Pursuant to § 324A (a), BP may be liable to a third party for negligently performing a duty undertaken to protect the third party or the third party’s things if BP’s negligence increased the risk of harm. This subparagraph applies “ ‘when a nonhazardous condition is made hazardous through the negligence of a person who changed its condition or caused it to be changed.’” The negligence must “expose [ ] the injured person to a greater risk of harm than had existed previously.”

Jones claims that the Byron BP station had a serious customer service problem that presented a hazard to customers. BP obviously did not create this alleged hazard; it arose from the station’s activities. Nevertheless, Jones asserts that the station became a greater risk to the public with each complaint that BP failed to investigate and address. In her view, BP’s failure to respond reasonably to the customer complaints increased the risk produced by the alleged hazard.

Without dispute, BP did not eliminate the customer service problem at the Byron BP. Liability, however, does not attach for failing to decrease the risk of harm. Instead, § 324A (a) applies when the alleged negligence increases the risk. We cannot simply assume that BP’s alleged failure to respond to complaints increased the risk to customers, and Jones has pointed to no evidence that the risk escalated. At most, the evidence shows that BP allowed the hazard to continue, conduct that does not support liability under this subparagraph.

. (b) To be liable under § 324A (b), BP must have undertaken a duty owed by another party to Jones. BP’s agreement with Beckham required Beckham to develop “customer responsiveness programs designed to respond to and resolve customer inquiries or complaints . . . received directly by [Beckham], and to those received by [BP] and referred to [Beckham] for response.” Based on this evidence, Jones argues that Beckham originally owed customers a duty to respond to and resolve customer complaints. She further claims that BP gratuitously took this duty over from Beckham, thus meeting the requirements of subparagraph (b).

Subparagraph (b) only applies, however, “to those situations where the alleged tortfeasor’s performance is to be substituted completely for that of the party on whose behalf the undertaking is carried out.” Nothing in the record indicates that BP entirely took over the duty of responding to and resolving customer complaints. In fact, the evidence shows that when BP received complaints involving the Byron BP, it generally forwarded those complaints to Beckham with instructions to “please handle.” Furthermore, Michael Huff testified that he worked directly with Beckham in resolving any customer complaints that he received from Beckham. According to Huff, the Beckham representative would tell him, “|h]ere’s a complaint; give me an answer to it or settle it and I’ll be back next week and we’ll settle it.”

Beckham’s agreement with BP required Beckham to resolve customer complaints at the Byron BP. Although BP may have become involved with those complaints, the evidence shows that it did not completely take over the responsibility originally delegated to Beck-ham. BP kept Beckham in the complaint resolution process. Accordingly, BP’s liability cannot rest on § 324A (b).

(c) The final basis for liability under § 324A — reliance — similarly does not support Jones’ claim. Section 324A (c) “requires proof of actual reliance by either [Jones] or [Beckham] on [BP’s] undertaking.”

As noted above, BP allegedly undertook the duty to resolve and respond to customer complaints. Jones has pointed to no evidence that she actually relied on this undertaking. According to Jones, she visited the Byron BP on November 14, 1997, because she knew from her own experience and from advertisements that BP offered “top quality service.” That testimony, however, does not create a question of fact as to Jones’ reliance in this case. Her belief in the quality of BP’s service is irrelevant to whether she relied on BP’s alleged undertaking to respond to and resolve customer complaints. Indeed, Jones has not cited any evidence that she knew about BP’s customer complaint process before November 14, 1997. We thus find that no factual question remains as to Jones’ reliance on the claimed undertaking.

Factual issues are similarly absent with respect to Beckham’s reliance. Jones argues that “Beckham Brothers relied on BP to obtain and handle complaints.” Yet, the evidence, including Michael Huff’s testimony, shows that Beckham remained heavily involved in complaint resolution at the Byron BP. Furthermore, Jones has pointed to no evidence that Beckham relaxed or altered its own complaint procedures in reliance on BP’s alleged undertaking. The record lacks evidence that Beckham relied on this purported undertaking to Jones’ detriment. Accordingly, the trial court erred in failing to grant BP summary judgment on Jones’ claim under § 324A (c).

3. As found in Divisions 1 and 2, BP was entitled to summary judgment on each of Jones’ substantive claims. The trial court, therefore, erred in failing to award BP summary judgment on Jones’ request for punitive damages.

Judgment reversed in Case No. A01A1207. Judgment affirmed in Case No. A01A1208.

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

Decided November 15, 2001

Reconsideration denied December 7,2001

Alston & Bird, Gerald L. Mize, Jr., George N. Mori, Douglas G. Scribner, Paul J. Kaplan, for appellant.

Gregory, Christy & Maniklal, Hardy Gregory, Jr., Gary C. Christy, Preyesh K. Maniklal, Christopher N. Smith, for appellee.

       We granted BP’s application for interlocutory appeal on March 30, 2001.

        Sudler v. Campbell, 250 Ga. App. 537, 538 (1) (550 SE2d 711) (2001).

       For ease of discussion, we will address the two cases on appeal in reverse order.

        Manis v. Gulf Oil Corp., 124 Ga. App. 638, 639 (185 SE2d 589) (1971). See also Asbell v. BP Exploration & Oil, 230 Ga. App. 700, 703 (1) (497 SE2d 260) (1998).

       (Emphasis omitted.)

        Asbell, supra. See also Wells v. Vi-Mac, Inc., 226 Ga. App. 261 (1) (486 SE2d 400) (1997) (“[The claimants’] assertion that Vi-Mac exercised a high degree of control over Miller’s business is not borne out by the record, which shows that Vi-Mac could require Miller to sell only Texaco products and comply with Texaco standards for cleanliness and appearance, but could not otherwise control Miller’s hours or manner of operation.”); Anderson v. Turton Dev., 225 Ga. App. 270, 274 (2) (a) (483 SE2d 597) (1997) (rules in hotel franchise agreement imposing various building, construction, and operational requirements did not permit the franchisor to control the daily operations of the franchise; they were simply “ ‘a means of achieving a certain level of quality and uniformity within [the franchise] system’ ”); McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 742 (1) (435 SE2d 51) (1993) (physical precedent only) (same).

       See Pizza K v. Santagata, 249 Ga. App. 36, 39 (547 SE2d 405) (2001) (“[R]eserving the right to inspect or evaluate a franchisee’s compliance with the franchisor’s ‘standards and to terminate the franchise for noncompliance is not the equivalent of retaining day-to-day supervisory control of the franchisee’s business operations as a matter of law.’ ”); Anderson, supra (no agency relationship created by hotel franchisor’s right to inspect the hotel); McGuire, supra at 742-743 (same).

       See Pizza K, supra at 36; Asbell, supra at 702; Wells, supra at 261; Anderson, supra at 270; McGuire, supra at 740-741.

        See Butkus v. Putting Greens Intl. Corp., 222 Ga. App. 661, 663 (475 SE2d 693) (1996).

       See Texaco, Inc. v. Youngbey, 211 Ga. App. 789, 790 (440 SE2d 533) (1994); Manis, supra at 639-640.

       (Punctuation omitted.) Id.

        Ragsdale v. Harris, 162 Ga. App. 888, 889 (293 SE2d 475) (1982). See also Pitts v. Ivester, 171 Ga. App. 312, 314-315 (2) (320 SE2d 226) (1984).

       216 Ga. App. 237 (453 SE2d 758) (1995).

       (Emphasis supplied.) Id. at 238.

       See Youngbey, supra; Manis, supra.

       Cf. Watson, supra.

       See Youngbey, supra; Manis, supra.

       See Anderson, supra at 275. Cf. Watson, supra (Howard Johnson’s knowledge that HoJo Inn failed to post independent hotel sign, combined with “HoJo Inn by Howard Johnson” advertisement, created a factual issue regarding apparent agency).

        Pope v. Goodgame, 223 Ga. App. 672, 674 (2) (c) (478 SE2d 636) (1996).

       Id.

       Supra at 261-262.

       Id. at 261.

       Id. at 262 (1).

       Goodgame, supra.

       See id.; Wells, supra.

        Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980).

       Restatement (Second) of Torts, § 324A.

       See Restatement (Second) of Torts, § 324A (a).

        Adler’s Package Shop v. Parker, 190 Ga. App. 68, 71 (1) (b) (378 SE2d 323) (1989).

        Huggins v. Standard Fire Ins. Co., 166 Ga. App. 441, 442 (304 SE2d 397) (1983).

       See id.; Adler’s Package Shop, supra. See also Howell v. United States, 932 F2d 915, 917-919 (11th Cir. 1991) (under Georgia law, FAA inspector’s failure to ground plane with known fuel contamination problem or to take other action to prevent plane from flying did not increase risk that fuel problem would later cause plane to crash); Smallwood v. United States, 988 FSupp. 1479, 1481-1482 (1) (a) (i) (S.D. Ga. 1997) (OSHA’s alleged failure to inspect for dangerous conditions at plant did not increase risk that claimant would step into unguarded vat of molten metal; “[i]ndeed, if the vats were hazardous, they were hazardous prior to the inspections”).

       (Emphasis supplied.) Huggins v. Standard Fire Ins. Co., supra. See also Hutcherson v. Progressive Corp., 984 F2d 1152, 1156 (11th Cir. 1993) (citing Huggins v. Standard Fire Ins. Co.).

       See Huggins v. Standard Fire Ins. Co., supra. Cf. Blossman Gas Co. v. Williams, 189 Ga. App. 195,198 (1) (375 SE2d 117) (1988) (physical precedent only) (where retailer volunteers to inform its customers of a product recall by mailing recall notices supplied by manufacturer, and thus takes over duty originally falling on manufacturer, it must carry out this voluntarily assumed task with ordinary care, and its failure to do so may result in liability under § 324A (b)).

        Huggins v. Standard Fire Ins. Co., supra. See also Argonaut Ins Co. v. Clark, 154 Ga. App. 183, 186 (2) (267 SE2d 797) (1980) (“Potential liability arises under subparagraph (c) if ‘the harm is suffered because of the reliance of the other or the third person upon the undertaking.’ ”).

       See Universal Underwriters Ins. Co. v. Smith, 253 Ga. 588, 591 (322 SE2d 269) (1984) (“We conclude that use by a third person of a defective instrumentality... in the manner in which such instrumentality is customarily used, where the fact of inspection is known to the third person but the defect is unknown, demonstrates reliance by the third person upon the defendant’s safety inspection of the defective instrumentality.”) (emphasis supplied); Howell, supra at 919 (III) (“Georgia law, at a minimum, requires knowledge that the allegedly negligent inspection occurred before reliance can be found and ‘good Samaritan’ liability can attach”).

       See Tillman v. Travelers Indem. Co., 506 F2d 917, 921 (II) (5th Cir. 1975) (cited with approval in Argonaut Ins. Co., supra at 187) (insurance company that agrees to inspect for safety hazards may be liable to injured employee if the employer “so relied on the insurer’s undertaking that it neglected its own safety inspection program to . . . (the employee’s) detriment”); Restatement (Second) of Torts, § 324A, comment e (“Where the reliance of the other, or of the third person, has induced him to forgo other remedies or precautions against such a risk, the harm results from the negligence as fully as if the actor had created the risk”) (emphasis supplied).

       See Adler’s Package Shop, supra at 71-72; Tillman, supra.


text:
    A01A2043.
    HARRISON v. THE STATE.
    (557 SE2d 447)
   Eldridge, Judge.

A Dougherty County jury found John William Lee Harrison guilty of armed robbery for his participation in acts that occurred at the Inns & Suites motel on Oglethorpe Avenue in Albany, wherein Harrison drove two teenagers to the motel; urged them to rob it with a .380 caliber automatic pistol; waited for them behind the motel; and drove them away following the taking of approximately $150 from the motel. He appeals and, without challenging the sufficiency of the evidence against him, claims error in the trial court’s failure to charge the jury on the lesser included offense of robbery by intimidation. We find no error, however, and affirm.

Harrison contends that because the jury heard evidence that a nontestifying co-defendant was permitted to plead guilty to the lesser included offense of robbery by intimidation in the instant case, such provided “evidence” of same so as to permit a jury charge thereon in the trial of the instant case. We disagree. °

A guilty plea to a lesser included offense can very well be the result of negotiation and, on its face, does not prove the factual basis for the plea, which may indeed encompass the greater offense. Thus, the mere existence of a plea to a lesser included offense is not “evidence” as to the underlying facts so as to support a jury charge on the lesser offense, and proof of such factual issues must be established at trial.

Decided December 7, 2001.

Farkas, Ledford & Perry, Thomas G. Ledford, for appellant.

Kenneth B. Hodges III, District Attorney, Leisa Green-Meadows, Assistant District Attorney, for appellee.

Here, the evidence was uncontradicted that the Inns & Suites motel was robbed at gunpoint; the motel clerk testified that the money was taken at gunpoint; one of the co-defendants who performed the robbery testified that he used a gun to effectuate the robbery; the gun discharged during the co-defendants’ flight from the motel to Harrison’s car, and a .380 caliber casing was recovered by the police outside the motel; and even Harrison, who took the stand and testified that he had no knowledge that the co-defendants were going to rob the motel, stated that he saw money and a gun in the backseat of his car after the co-defendants returned thereto. “Where the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offense of robbery by intimidation.”

Judgment affirmed.

Andrews, P. J., and Miller, J, concur.

       There were two additional named co-defendants in the instant case who were present in the car with Harrison and the two teenagers referenced above.

       See, e.g., Sample v. State, 232 Ga. App. 690, 692 (1) (503 SE2d 576) (1998) (plea result of negotiated agreement, while election not to prosecute cocaine trafficking charge based on acceptance of negotiated plea); In the Interest of J. M. R., 218 Ga. App. 490, 491 (1) (462 SE2d 173) (1995) (evidence supported conviction on greater offense, but defendant permitted to plead to lesser included offense “for reasons not revealed by the record”).

        Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991) (introduction of guilty plea does not relieve a party as to proof of underlying factual issues).

       (Punctuation and footnote omitted.) Brinson v. State, 245 Ga. App. 411, 413 (2) (537 SE2d 795) (2000).