text:
    76588.
    KATES et al. v. BRUNSWICK MOTEL ENTERPRISES, INC.
    (371 SE2d 686)
   Sognier, Judge.

Harry B. Kates and Carolyn Kates brought suit against Brunswick Motel Enterprises, Inc. d/b/a Holiday Inn 1-95, (Brunswick) to recover damages for the loss of personal property from a guest room they were occupying in a motel owned and operated by Brunswick. The trial court granted Brunswick’s motion for summary judgment and denied the Kateses’ motion for partial summary judgment, and the Kateses appeal.

The record reveals without dispute that appellee provided a safe for the deposit of valuable articles by guests and that notices regarding the availability of the safe, and appellee’s disclaimer of liability for guests’ valuables unless they were placed in the safe, were posted. Three such notices were in the guest room occupied by appellants: one placed on a table, and two framed notices on the wall between the front door and the door to a connecting room. In addition, a framed notice hung on the wall behind the registration desk, although its exact location is disputed, and the notice was printed on the registration form signed by appellant Harry Kates.

Appellants contend the trial court erred by granting appellee’s motion for summary judgment and by denying their own motion, because the record demonstrates appellee’s failure to comply strictly with the notice provisions of OCGA §§ 43-21-10 through 12, which are in derogation of the common law and thus must be strictly construed. Although we agree with appellants that these statutes must be strictly construed, we find that compliance with the proper statute has been demonstrated here.

OCGA § 43-21-10 provides that “[t]he innkeeper may provide a safe or other place of deposit for valuable articles and, by posting a notice thereof, may require guests of the innkeeper to place such valuable articles therein or the innkeeper shall be relieved from responsibility for such articles.” We find OCGA § 43-21-10 to be the statute which governs the instant case and do not agree with appellants’ argument that appellee was required to have complied with OCGA §§ 43-21-11 and 43-21-12 in addition to OCGA § 43-21-10 in order to be relieved of liability in this instance. OCGA § 43-21-12 has been held to apply to reasonable regulations other than those connected with the safe, Murchison v. Sergent, 69 Ga. 206 (1883), in view of the language in OCGA § 43-21-10 governing the notice which must be given regarding the safe. OCGA § 43-21-11 is clearly inapplicable, because that section governs the limitation on the liability of an innkeeper for valuables which are deposited in the safe, and the notice required to effectuate such a limitation.

Contrary to appellants’ argument, the requirement in Murchison that the statutes be read in pari materia means simply that they must be harmonized, and may not be read in a vacuum, and not that all three statutes must be read as requiring the same notice despite clearly different language regarding the notice required in each. OCGA § 43-21-11 (b) requires that a notice containing the provisions of subsection (a) of the statute be posted “in a conspicuous place in all rooms of the hotel occupied by guests.” OCGA § 43-21-12 requires the innkeeper to post a copy of the Code section, “printed in distinct type, on the inside of the door of the guest’s room.” However, the applicable statute here, OCGA § 43-21-10, requires only that the innkeeper post a notice of the availability of the safe and the requirement that guests place valuables therein, to relieve the innkeeper of liability for the loss of such items. In the instant case, the notice was posted not only on the registration card, compare Murchison, supra, but also in the guest’s room and behind the registration desk. We hold these notices were sufficient to comply with the “posting” requirement of OCGA § 43-21-10, thereby insulating appellee from liability for the loss of valuables not placed in the safe.

Accordingly, since no material issues of fact remained, and appellee was entitled tq judgment as a matter of law, the trial court did not err by granting appellee’s motion for summary judgment and denying that of appellants. See generally Francis v. Union Bank, 183 Ga. App. 84, 85 (1) (357 SE2d 837) (1987).

Decided July 15, 1988.

Grayson P. Lane, for appellants.

M. Lynn Frey, for appellee.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    76826.
    McGHEE v. THE STATE.
    (371 SE2d 308)
    Decided July 15, 1988.

      L. David Wolfe, for appellant.

      Lewis R. Slaton, District Attorney, Charles T. Shean III, Assistant District Attorney, for appellee.
   Deen, Presiding Judge.

Appellant McGhee was found guilty on three counts of unlawfully entering an automobile. He appealed from this judgment on March 30, 1988, and his case was assigned to the June 1988 calendar of this court. His brief and enumeration of errors were due May 9, 1988. When none had been filed by May 21, this court ordered him to file not later than June 1, 1988. He has failed to file, to request an extension of time, or to communicate with this court in any manner whatsoever.

Rule 27 of the Court of Appeals requires that the enumeration of errors be filed with the Clerk of the Court within twenty days after the case is docketed. No brief, enumeration of errors, or any other documents have been filed, and no effort has been made to prosecute this appeal. Held:

We have examined such material of record as has been made available to us, and we find nothing to indicate that the conviction and sentence of this recidivist offender should not be affirmed.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author:
McMurray, Presiding Judge.
      Pope, Judge,

text:
    75967.
    POWELL v. THE STATE.
    (372 SE2d 234)
   McMurray, Presiding Judge.

Defendant appealed his 1985 conviction for voluntary manslaughter and, in response to his contention that the State’s use of peremptory challenges was discriminatory, this court remanded with direction for an evidentiary hearing in accordance with Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). (For this court’s previous holding and statement of pertinent facts, see Powell v. State, 182 Ga. App. 123 (355 SE2d 72).)

Evidence at the Batson hearing showed that the State used 9 of its 10 peremptory challenges to strike 9 of the 12 prospective jurors who were black. Three blacks were on the jury ultimately selected for the trial of the case sub judice. Thus, the proportion of blacks on the selected jury (25 percent) was slightly less than the proportion of blacks on the panel (28.57 percent). At the Batson hearing, defendant argued that the State had discriminated against blacks in the jury selection process. The trial court rejected this argument and refused to make a ruling as to whether a prima facie showing of discrimination by the State was present. However, in an abundance of caution, the trial court required the State to give the reasons for its peremptory strikes. After the State complied, defendant requested cross-examination of the State’s attorney. This request was denied and defendant offered nothing in rebuttal. Subsequently, the trial court entered an order finding that each of the State’s peremptory challenges were “racially neutral.” Defendant now appeals, asserting error as to the trial court’s rulings at the Batson hearing and reasserting enumerations of error that were previously raised but were not considered by this court. See Powell v. State, 182 Ga. App. 123 (4), supra. Held:

1. In his third enumeration of error, defendant contends the trial court erred in “failing to make a determination and finding as to whether [he] had established a prima facie case of purposeful discrimination by the State in jury selection as contemplated by Batson v. Kentucky.” We do not agree. Since the trial court proceeded with the second phase of the Batson hearing, requiring the State to give its reasons for its peremptory strikes and ruling on the State’s motivation for said strikes, a determination of prima facie discrimination was unnecessary. See Williams v. State, 258 Ga. 80, 81, n. 2 (365 SE2d 408).

2. We next consider defendant’s contention that the trial court erred in refusing to allow him to cross-examine the State’s attorney during the Batson hearing.

In Batson, the United States Supreme Court held that “[o]nce the defendant makes the requisite showing [of discrimination by the State in the jury selection process], the burden shifts to the State to explain adequately the racial exclusion. Alexander v. Louisiana, 405 U. S. at 632, [31 LE2d 536, 92 SC 1221]. [Emphasis supplied.]” Batson v. Kentucky, 476 U. S. 79 at 94 (106 SC 1712, 90 LE2d 69, 86). We find no directive in Batson which requires the State’s attorney to further explain his conduct to defendant on cross-examination (of the State’s attorney), nor do we find such authority in Georgia. In response to defense counsel’s argument regarding defendant’s constitutional right to confrontation through cross-examination, we observe that the State’s attorney was not testifying as a witness against defendant, but was “explaining” his conduct as an officer of the court. Under such circumstances, we find that the trial court did not err in refusing to allow defendant’s attorney to cross-examine the State’s attorney.

3. Turning now to defendant’s contention that the trial court erred in finding that the State’s peremptory challenges were “racially neutral,” we reject defendant’s argument that the explanations given by the State at the Batson hearing were unbelievable because they were inconsistent with the explanations given at trial. After examining the trial transcript and the transcript of the Batson hearing, we find the State merely expanded and clarified its reasons for challenging black members of the venire. See Evans v. State, 183 Ga. App. 436, 439 (3) (359 SE2d 174). Consequently, “ ‘giving great deference’ (90 LE2d at 89, n. 21) to the trial court’s conclusion that the State’s peremptory challenges were not purposefully discriminatory, we cannot say that the trial court’s finding was clearly erroneous. See United States v. Mathews, 803 F2d 325 (7th Cir. 1986).” Evans v. State, 183 Ga. App. 436 (3), supra. Compare Gamble v. State, 257 Ga. 325, 326 (5) (357 SE2d 792). Defendant’s first, second and fifth enumerations of error are without merit.

4. Next, defendant challenges the trial court’s charge that: “[t]he law infers that a person intends to accomplish the natural and probable consequences of his acts and if a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily used and thereby causes the death of a human being the law infers the intent to kill. These inferences may be rebutted however.” Defendant contends that this charge falls within the proscription of Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39), and Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344).

In Hosch v. State, 246 Ga. 417, 419 (3) (271 SE2d 817), the Supreme Court disapproved the phrase “the law presumes” in the deadly weapon charge; and, more recently, in Williams v. Kemp, 255 Ga. 380, 388 (338 SE2d 669) (1986), the Supreme Court found constitutionally infirm a similar charge on intent, notwithstanding the fact that an additional charge that such a presumption is rebuttable was given. From this perspective, defendant in the case sub judice argues that the trial court’s substitution of the term “infers” in lieu of the term “presumes” did not render benign the otherwise unconstitutionally burden-shifting charge. We agree.

To “infer” is “[t]o derive by reasoning or by implication; to conclude from facts or premises; to accept or derive as a consequence, conclusion or probability.” Webster’s New Intl. Dictionary, (2d ed.), p. 1273, n. 2. The law does not draw “conclusions” as to intent or other factual matters. Factual decisions and conclusions are matters that belong exclusively to the province of the jury. Consequently, in the case sub judice, when the trial court directed the jury to infer an essential element of the crime and that the inference was rebuttable, it unconstitutionally relieved “ ‘the State of the affirmative burden of persuasion on the [inferred] element by instructing the jury that it must find the [inferred] element unless the defendant [persuaded] the jury not to make such a finding.’ [Cit.]” Williams v. Kemp, 255 Ga. 380, 385, supra. Further, we have reviewed the trial court’s general instructions as to the State’s burden of proof and the defendant’s presumption of innocence and we find that they do not erase the error in the challenged portion of the instruction. Nor does the more specific instruction preceding the challenged charge — “A person will not be inferred to act with criminal intent but the jury may find intent, or the absence of intent, from a consideration of the words, demeanor, motive and other circumstances connected with the act for which the defendant is being tried,” — provide a sufficient explanation of the defective instruction. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Francis v. Franklin, 471 U. S. 307, 322, supra.

Accordingly, “[b]ecause a reasonable juror could have understood the challenged portions of the jury instruction in [the case sub judice] as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause.” Francis v. Franklin, 471 U. S. 307, 325, supra. Compare Catchings v. State, 256 Ga. 241, 248 (11) (347 SE2d 572); Worth v. State, 179 Ga. App. 207, 209 (3) (346 SE2d 82), and cites.

Since the challenged jury charge was erroneous, the question remains whether it was also harmless. “The court in Davis v. Kemp, [752 F2d 1515 (11th Cir. 1985)], held that the harmless error doctrine may be applicable to a Sandstrom error, if the court can say ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ 752 F2d at 1521 n. 7 (quoting Chapman v. California, 386 U. S. 18, 87 SC 824,17 LE2d 705 (1967)). The Davis court identified two circumstances under which a Sandstrom error could be harmless beyond a reasonable doubt: (1) where the instruction applied to an element of the crime not at issue at the trial or (2) where evidence of guilt was ‘overwhelming.’ 752 F2d at 1521. In that case, the court found that the error perpetrated by the instruction was harmless, because the defendant, by offering an alibi rather than a mens rea defense, had taken intent out of issue.” Carter v. Montgomery, 769 F2d 1537, 1541 (11th Cir. 1985).

In the case sub judice, although defendant admitted that he shot the victim, he testified that he intended “to just stop [the victim] and divert him from what he was doing.” He further testified that he did not intend to kill the victim. This testimony not only placed the element of intent in issue, “but substantially reduces the extent to which evidence against the defendant can be considered to be ‘overwhelming.’ In Brooks [v. Kemp, 762 F2d 1383 (11th Cir. 1985),] virtually the only evidence offered in the suspect’s defense was his own statement that the shooting had been an accident; yet the court held that this was sufficient to put intent in issue and prevent the evidence against the defendant from being considered ‘overwhelming.’ Accordingly, the court held that the Sandstrom error committed by the trial judge in instructing the jury on the issue of intent was not harmless.” Carter v. Montgomery, 769 F2d 1537, 1541, supra.

In the case sub judice, considering defendant’s testimony that he did not intend to use deadly force in order to “stop” defendant “from what he was doing” and considering the heated circumstances of the confrontation, in which defendant and the victim exchanged violent and threatening words, we cannot say that the evidence was “overwhelming” with regard to defendant’s intent to kill the victim. Consequently, since the trial court’s erroneous charge completely eliminated defendant’s defense of lack of intent to use deadly force in self-defense, we must reverse defendant’s conviction of the crime of voluntary manslaughter. Trenor v. State, 252 Ga. 264, 265 (3) (313 SE2d 482). See Drake v. Kemp, 762 F2d 1449 (11th Cir. 1985), and Thomas v. Kemp, 766 F2d 452 (11th Cir. 1985).

5. It is unlikely that defendant’s remaining challenge to the trial court’s jury instruction will reoccur upon retrial. Consequently, it is unnecessary to consider this enumeration of error.

Judgment reversed.

Benham, J., concurs and also concurs spe dally. Pope, J., concurs specially.

Decided June 14, 1988

Rehearing denied June 27, 1988

Rehearing dismissed July 5, 1988

Rehearing denied July 20, 1988

W. Washington Larsen, Jr., Celia Larsen, for appellant.

James L. Wiggins, District Attorney, Michael T. Solis, Assistant District Attorney, for appellee.

Pope, Judge,

concurring specially.

I agree that in this case the trial court did not err in refusing to allow defendant to cross-examine the prosecutor during the Batson hearing. This is because, even though the trial court never expressly ruled on whether a prima facie case of discriminatory intent had been established, the record shows a prima facie case, in fact, was not established. Compare Gamble v. State, 257 Ga. 325 (3) (357 SE2d 792) (1987) . See generally Aldridge v. State, 258 Ga. 75 (4) (365 SE2d 111) (1988) . A defendant does not have the right to cross-examine the prosecutor as part of his prima facie case. See Dewberry v. State, 743 SW2d 260, 266 (Tex. App. 1987). Once the defendant has shown he is a member of a racially cognizable group and that the prosecutor used peremptory strikes to remove members of this group from the jury, the remaining facts to establish an inference of racially discriminatory motivation for those strikes may be established from “other relevant circumstances,” such as facts appearing in the record. See Aldridge v. State, supra. The testimony of the prosecuting attorney should not be necessary to establish a prima facie case. However, once a prima facie case is established, the testimony of the prosecuting attorney concerning his reasons for making the strikes is relevant. I do not agree with the implication of Division 2 of the majority opinion that a defendant would never have the right to cross-examine the prosecutor. Once a prima facie case of discriminatory intent is established and the prosecuting attorney is called to explain the reasons for each peremptory strike, then the very purpose of the Batson hearing requires the defendant be permitted to cross-examine the prosecutor in order to challenge his explanation. Cf. Daniels v. Texas, _ SW2d _ (no. 12-86-00268-CR, Tex. App., April 26, 1988) and Cliff v. Alabama, 518 S2d 786 (Ala. Crim. App. 1987) (in which the prosecuting attorney was cross-examined by defendant at the Batson hearing).

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

       The Supreme Court in Williams v. Kemp, 255 Ga. 380, supra, held that this error did not require a reversal as the defendant’s defense “did not create any material issue on the question of whether [that defendant] intended the consequences of his acts.”


author: Sognier, Judge. Deen, Presiding Judge, Carley, Judge,

text:
    76069.
    DEPARTMENT OF TRANSPORTATION v. FREEMAN et al.
    (371 SE2d 887)
   Sognier, Judge.

Robert Freeman and the other owners of 2.627 acres of land at the “Brookwood Interchange” of 1-75 and 1-85 in Atlanta were awarded $400,000 by the jury in this condemnation proceeding. The Department of Transportation appeals from the trial court’s denial of its motion for new trial.

The property in question is landlocked between the interstate highways and the property owned by Southern Railroad, which operates the Brookwood Station. In an earlier appeal, in which the facts of this case are set forth more fully, we reversed the jury verdict for the trial court’s failure to give condemnees’ requested charge concerning the availability of the procedure set forth in OCGA § 44-9-40 authorizing the grant of a private way to a property owner with no means of ingress, egress or access to his property. Freeman v. Dept. of Transp., 177 Ga. App. 51 (338 SE2d 484) (1985).

1. Appellant contends that the trial court’s failure to give appellant’s request to charge no. 39, in which the full provisions of OCGA § 44-9-40 were set forth, constituted reversible error. OCGA § 44-9-40 provides: “(a) The superior court shall have jurisdiction to grant private ways to individuals to go from and return to their property and places of business. Private ways shall not exceed 20 feet in width and may be as much less as the applicant may choose or as the court may find to be reasonably necessary. They shall be kept open and in repair by the person on whose application they are established or his successor in title, (b) When any person or corporation of this state owns real estate or any interest therein to which the person or corporation has no means of access, ingress, and egress and when a means of ingress, egress, and access may be had over and across the lands of any private person or corporation, such person or corporation may file his or its petition in the superior court of the county having jurisdiction; said petition shall allege such facts and shall pray for a judgment condemning an easement of access, ingress, and egress not to exceed 20 feet in width over and across the property of the private person or corporation. The filing of the petition shall be deemed to be the declaration of necessity; however, where it appears that the condemnor owns a right of access, ingress, and egress to his property over another route or owns an easement to a right of private way over another route, which right or easement is not less than 20 feet in width and which alternate route affords such person or corporation a reasonable means of access, ingress, and egress, or where the judge shall find that the exercise of such right of condemnation by the condemnor is otherwise unreasonable, the judge of the superior court is authorized under such circumstances to find that the condemnation and the declaration of necessity constitute an abuse of discretion and to enjoin the proceeding.” (Emphasis supplied.)

The trial court charged the legal principles of all but the emphasized language in OCGA § 44-9-40 (b) in its instructions to the jury. Appellant argues that the absence of the above-emphasized language in the charge constituted reversible error in that the possibility presented in that language, that the superior court might refuse to proceed with the condemnation of a private easement providing access to appellees’ property by virtue of the condemnation being unreasonable, was improperly removed from the jury’s consideration. We reject appellees’ argument that the “otherwise unreasonable” language in OCGA § 44-9-40 does not apply to a determination whether a private way may be condemned when landlocked property is involved. The language of the statute does not support an interpretation that the question of reasonableness is not applicable when the property sought to be accessed by a private way is landlocked. “In order to prove the necessity of a private way, OCGA § 44-9-40 (b) requires the condemnor to show he has no reasonable means of access to his property. [Cit.] Where the condemnor proves that he has no access to his property, i.e., that it is landlocked, he makes out a prima facie case of necessity under the statute. The burden of persuasion then shifts to the condemnee to prove the condemnor has a reasonable means of access to the property.” International Paper Realty Corp. v. Miller, 255 Ga. 676, 677 (341 SE2d 445) (1986). The “prima facie case of necessity” shown by the existence of landlocked property does not equate to an absolute entitlement to a private way to such property regardless of the reasonableness involved. For example, had the only means of accessing appellees’ property mandated the destruction of Brookwood Station, a structure on the historical building register, a superior court judge could have considered the grant of a private way to the landlocked property to be unreasonable and enjoined it. Thus, neither the statute nor the case law supports appellees’ interpretation of OCGA § 44-9-40.

However, we find no reversible error in the trial court’s refusal to charge appellant’s request to charge no. 39 because, while correct as an abstract principle of law, it was not adjusted to the evidence adduced at trial. While there was evidence that the potential grantor of the private way, Southern Railroad, would have vigorously opposed the creation of a private way for obvious safety reasons if a grade level crossing of its tracks had been involved, appellees’ evidence re-fleeted plans for accessing the property by tunnel or bridge over the tracks. There was no evidence a private way obtained by bridge or tunnel to the property would be unreasonable; the only evidence even addressing these plans was the testimony of one railroad official who stated that he would have opposed the access because the construction would have interfered with the railroad’s business. The same official also acknowledged that the interference the railroad had experienced during the construction of the tunnel currently providing railroad employees access under the rails had ceased.

Although appellant points to evidence that accessing the major commercial building appellees claimed they would have built on the landlocked property would have required more than the twenty foot private way, there was no evidence appellees would have been legally prevented from constructing the building due to the twenty-foot limitation and we do not find the feasibility of implementing a grantee’s plans for the landlocked property to be relevant to the question whether granting the private way would be “otherwise unreasonable.” The feasibility issue was appropriately left for jury consideration in regard to the claimed value of the condemned property and was posited to the jury in a charge that thoroughly presented the possibility that appellees’ plans for the property would be subject to the twenty-foot private way limitation. The jury rendered a verdict which this court should uphold if it can be done in accordance with the law, Bob Lairsey Ins. Agency v. Allen, 180 Ga. App. 11, 12 (1) (348 SE2d 658) (1986), and since the law does not require the giving of a charge that is not pertinent and adjusted to the facts, see Revbar Corp. v. Marthaler, 180 Ga. App. 559, 560 (1) (349 SE2d 795) (1986), the trial court did not err by refusing to charge appellant’s request to charge no. 39.

2. Appellant contends the trial court erred by admitting evidence of property development plans drawn up by an architect in 1962 and a local newspaper article published in 1965 discussing plans for the rebuilding of the Brookwood Interchange on the basis that they were not relevant to the issue of value on the date of taking. Appellant argues that appellees sought by the admission of this evidence to obtain compensation for any inability to utilize fully the property prior to the actual condemnation thereof, citing Josh Cabaret v. Dept. of Transp., 256 Ga. 749-750 (4) and (5) (353 SE2d 346) (1987). However, the record reveals that the testimony regarding appellees’ development plans was admitted as relevant to the jury’s determination whether a reasonable probability existed that the land could be used for commercial purposes as contended, see Georgia Power Co. v. Cole, 141 Ga. App. 806-807 (1) (234 SE2d 382) (1977); see also Dept. of Transp. v. Pilgrim, 175 Ga. App. 576, 578 (2) (333 SE2d 866) (1985), and the newspaper article was admitted to explain why appellees did not follow through with their development plans. See OCGA § 24-3-2. The evidence thus served to rebut appellant’s position at trial that appellees never intended to develop the property commercially. “ ‘Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. [Cits.]’ [Cit.]” Weathers v. Cowan, 176 Ga. App. 19, 20 (1) (335 SE2d 392) (1985). Appellant’s reference to Josh Cabaret is therefore inapt, and we find no abuse of the trial court’s discretion by admitting this evidence.

3. We find no merit in appellant’s contention that thé admission of testimony by two expert witnesses on behalf of appellees, Julian Diaz and Carl Tschappat, improperly introduced evidence relative to the value of appellees’ property subsequent to the taking. The record reveals that both witnesses clearly based their opinions regarding the value of appellees’ property as of the date of taking in December 1980. The complained-of testimony by both witnesses merely reflected their recognition that the real estate market in 1980 was beginning to undergo dramatic changes as to property values in the midtown area where appellees’ property is situated, and that the manifestation of that change in the years following had confirmed their opinions of the trend. The record thus does not support appellant’s contention and Wright v. MARTA, 248 Ga. 372 (283 SE2d 466) (1981), cited by appellant, is inapposite.

Judgment affirmed.

Birdsong, C. J., Banke, P. J., Pope, Ben-ham, and Beasley, JJ., concur. Deen, P. J., concurs and also concurs specially. McMurray, P. J., and Carley, J., dissent.

Deen, Presiding Judge,

concurring specially.

While concurring fully in the majority opinion, I would like to make the following observations:

1. In the prior appearance of this case, we ruled that the court below erred in not giving the condemnees’ requested charge “concerning the availability of a procedure under Georgia law enabling the owner of landlocked property to petition for a ‘private way’ easement of access over the lands of another. See OCGA § 44-9-40.” Freeman v. Dept. of Transp., 177 Ga. App. 51 (338 SE2d 484) (1985). The trial court was therefore bound by “the law of the case which [it] properly followed in conducting the jury trial. OCGA § 9-11-60 (h), [Cits.]” Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 138 (308 SE2d 378) (1983).

Appellant’s sole objection was to the failure of the court to give its requested charge which was a verbatim statement of the Code section. The court, however, did give appellees’ requested charge, which was a summary of the statute.

A charge need not be given in the exact language of the request to charge. Shirley v. State, 245 Ga. 616 (266 SE2d 218) (1980). “[I]f the charge given fairly covers the subject matter of requested charges, it is not error to fail to give the requests.” Nolen v. Murray Indus., 165 Ga. App. 785, 788 (302 SE2d 689) (1983). An examination of the charge reveals that appellant’s request to charge was fairly covered by the charge which was given by the trial court. Portions of the requested charge which were not covered in the charge were not authorized by the evidence.

A charge giving a summary of the statutory section dealing with private ways is sufficient. State Hwy. Dept. v. Davis, 129 Ga. App. 142 (199 SE2d 275) (1973). See also State Hwy. Dept. v. Howard, 119 Ga. App. 298 (167 SE2d 177) (1969). Failure to charge that a petition for a private way may be enjoined if unreasonable was not error because it was not authorized by the evidence. Proof of the reasonableness of a private way is not a prerequisite to the grant of a private way under OCGA § 44-9-40, where the property is landlocked. International Paper Realty Corp. v. Miller, 255 Ga. 676 (341 SE2d 445) (1986). In the instant case, the property was landlocked and the reasonableness of a private way did not become an issue at trial. It was therefore not error for the court to fail to charge that the petition could be enjoined if unreasonable.

2. The Department of Transportation maintained at trial that the condemnees’ property was purely a speculative investment which never was and never could be reasonably expected to be commercially developed. To rebut this contention, the condemnees offered evidence that in 1962 they had employed an architect who had drawn up plans for a commercial building on the property, and that they had discussed developing the property with a real estate developer. They also offered evidence that in 1965 the Atlanta Journal published an article announcing plans to rebuild the Brookwood Interchange. The condemnees offered this latter evidence to explain their reason for failing to develop the property as planned and to rebut the contention that the property was not developed because of an access problem with the site. The Department of Transportation objected to the development plans on the ground that they were not relevant to the value of the property as of the date of the taking, and to thie newspaper article on the ground that it was hearsay..

The admission of this evidence was proper. The testimony as to the development plans helped establish the condemnees’ position that it was possible to develop the property. See State Hwy. Dept. v. Thomas, 106 Ga. App. 849 (128 SE2d 520) (1962). Testimony about the newspaper article was given to explain the conduct of the condemnees in not following through with their development plans. Appellant now complains for the first time, on appeal, that it was not relevant as to value. “ ‘An objection to the admission or exclusion of evidence must be specifically raised at trial in order to be heard on appeal. [Cits.]’ ” Herron v. MARTA, 177 Ga. App. 201, 202 (338 SE2d 777) (1985).

3. An examination of the testimony of the condemnees’ two witnesses shows that, contrary to appellant’s assertion, they did not testify as to the value of the land at the time of trial, but as to its value at the time of the taking. Mr. Diaz testified that changes in land value in the area began about 1980 and that his ultimate opinion in value related only to the date of the taking, although he did compare the dramatic changes in land values from about 1980 until approximately a year before trial. The other witness testified that the market in the area was depressed in the 1970’s, but shifted to a strong market by late 1980, and that the passage of six years confirmed his opinion. He also made it clear that his opinion as to the value of the property was based on its value in December 1980. The Department of Transportation’s objections were therefore properly overruled. See Ivy Inn v. MARTA, 255 Ga. 557, 559 (340 SE2d 600) (1986); Dept. of Transp. v. Whitehead, 169 Ga. App. 226, 229 (312 SE2d 344) (1983).

Carley, Judge,

dissenting.

I cannot agree with the majority that the trial court did not err in refusing to give appellant’s request to charge No. 39 which is the entirety of OCGA § 44-9-40 as follows: “(a) The superior court shall have jurisdiction to grant private ways to individuals to go from and return to their property and places of business. Private ways shall not exceed 20 feet in width and may be as much less as the applicant may choose or as the court may find to be reasonably necessary. They shall be kept open and in repair by the person on whose application they are established or his successor in title, (b) When any person or corporation of this state owns real estate or any interest therein to which the person or corporation has no means of access, ingress, and egress and when a means of ingress, egress, and access may be had over and across the lands of any private person or corporation, such person or corporation may file his or its petition in the superior court of the county having jurisdiction; said petition shall allege such facts and shall pray for a judgment condemning an easement of access, ingress, and egress not to exceed 20 feet in width over and across the property of the private person or corporation. The filing of the petition shall be deemed to be the declaration of necessity; however, where it appears that the condemnor owns a right of access, ingress, and egress to his property over another route or owns an easement to a right of private way over another route, which right or easement is not less than 20 feet in width and which alternate route affords such person or corporation a reasonable means of access, ingress, and egress, or where the judge shall find that the exercise of such right of condemnation by the condemnor is otherwise unreasonable, the judge of the superior court is authorized under such circumstances to find that the condemnation and the declaration of necessity constitute an abuse of discretion and to enjoin the proceeding.” (Emphasis supplied.)

As the majority properly recognizes, it is especially the emphasized portion of the Code section which forms the basis of appellant’s contention that harmful error occurred in the refusal of the trial court to give the requested charge. The appellant presented evidence that the owner of the property over which any right-of-way would have to be obtained would vigorously oppose such right-of-way and that under the particular circumstances involved, any such right-of-way would be “unreasonable.” The charge was adjusted to the evidence and should have been given.

The majority correctly holds that “[t]he ‘prima facie case of necessity’ shown by the existence of landlocked property does not equate to an absolute entitlement to a private way to such property regardless of the reasonableness involved.” (Majority opinion, page 884.) But the majority then concludes that the trial court’s refusal to charge appellant’s request to charge No. 39 was not reversible error because the requested charge was not “adjusted to the evidence adduced at trial.” (Majority opinion, page 884.) However, it is clear from a review of the evidence offered at trial that appellant relied extensively upon its evidence showing, both explicitly and implicitly, that the creation of a private right-of-way would be unreasonable and might be refused by the superior court.

“To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. [Cits.]” Morse v. MARTA, 161 Ga. App. 405, 406 (1) (288 SE2d 275) (1982). “ ‘To warrant the court in charging the jury on a given topic it is not necessary that the evidence should shine upon it with a clear light but “it is enough if glimpses of it be afforded by the evidence.” [Cit.]’ [Cit.]” Harris v. Collins, 149 Ga. App. 638, 640 (5) (255 SE2d 107) (1979). The condemnor’s evidence raised the issue of the reasonableness of the grant of a private right-of-way to appellees. The condemnor’s argument in this connection may or may not have been viable, and that was for the jury to determine. However, in determining that issue, the jury should have been charged as to the entire Code section so that it would be aware of the possibility of a denial of such a private right-of-way.

For the above reasons, I believe that the trial court committed reversible error in refusing to give the requested charge. See Dept. of Transp. v. Pilgrim, 175 Ga. App. 576, 577 (1c) (333 SE2d 866) (1985). Therefore, I respectfully dissent.

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

Decided July 7, 1988

Rehearing denied July 20, 1988

Dennis S. Mackin, J. Matthew Dwyer, Jr., Beryl H. Weiner, Michael J. Bowers, Attorney General, for appellant.

Paul Webb, Jr., Laurie Webb Daniel, for appellees.


author: McMurray, Presiding Judge.

text:
    76385.
    HILL v. GOODYEAR TIRE & RUBBER COMPANY.
    (371 SE2d 661)
   McMurray, Presiding Judge.

This is a slip and fall case. Plaintiff’s complaint alleges that she was an invitee at defendant’s business establishment (an automobile service and repair facility) when she slipped and fell on a slick greasy substance which had been left on the floor by an employee of defendant. The complaint also avers that defendant’s employees knew or should have known the slick greasy substance which caused her fall was on the floor and that defendant was negligent in allowing the substance upon the floor. Plaintiff also alleges that due to her fall, she has suffered permanent injuries, medical expenses, and lost time from work.

Defendant’s answer denied that it was negligent in any way. Subsequently, defendant moved for summary judgment. The state court found “that the defendant had no superior knowledge, either constructive or actual, of the alleged defect on its premises ...” and granted defendant’s motion for summary judgment. Plaintiff appeals. Held:

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327).

The only evidence in the record of the case sub judice consists of the deposition of plaintiff. The testimony of plaintiff is that while she was watching where she was going, she was unable to see the greasy substance on the floor until after she had stepped in it and fallen.

“The burden is on the party who moves for summary judgment to produce evidence which conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. Raven v. Dodd’s Auto Sales & Svc., 117 Ga. App. 416 (160 SE2d 633); Saunders v. Vickers, 116 Ga. App. 733, 734 (158 SE2d 324). . . . There is no duty placed upon the plaintiff to produce evidence until the defendant’s evidence pierces the plaintiff’s pleadings and demands a finding in defendant’s favor on the particular issue of fact made by the pleadings.” Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465). See also Burnsed v. City of Albany, 184 Ga. App. 297, 298, 299 (361 SE2d 275).

Decided July 5, 1988

Rehearing denied July 20, 1988.

Richard B. Thornton, for appellant.

C. Ashley Royal, for appellee.

There is clearly evidence of plaintiff’s lack of knowledge of the greasy substance on the floor, therefore, the primary issues presented on appeal involve whether defendant had superior knowledge of the greasy substance. Since the evidence in support of defendant’s motion for summary judgment fails to establish defendant’s lack of knowledge of the greasy substance on the floor, defendant failed to pierce the allegations of plaintiff’s complaint and plaintiff was under no duty to produce evidence in support of her allegation regarding defendant’s knowledge of the greasy substance on the floor. Thus, defendant failed to negate an essential element of plaintiff’s case. The state court erred in granting defendant’s motion for summary judgment. Peoples Bank of Bartow County v. Austin, 159 Ga. App. 223, 227 (2) (283 SE2d 81); Guthrie v. Monumental Properties, 141 Ga. App. 21 (2), 22, 23 (232 SE2d 369).

Judgment reversed.

Pope and Benham, JJ., concur.


author: Benham, Judge.

text:
    75810, 75811.
    CROWELL v. CITY OF EASTMAN et al.; and vice versa.
    (371 SE2d 667)
   Benham, Judge.

The dispositive rule of law in these appeals is the “law of the case” rule. In Crowell v. City of Eastman, 182 Ga. App. 489 (356 SE2d 104) (1987), holding that this was not a proper case for declaratory judgment, this court reversed the judgment entered in favor of appellees. Upon the return of the remittitur, appellees filed a motion for summary judgment. The main appeal here is from the grant of that motion. The cross-appeal concerns a holding the trial court made in the course of granting summary judgment to appellees.

1. This case may instructively be compared to Worley v. Travelers Indent. Co., 121 Ga. App. 179 (173 SE2d 248) (1970). There, a jury verdict had been reversed because of insufficiency of the evidence, and the trial court had refused, after remittitur, to permit a de novo hearing. This court held that the law of the case was merely that the evidence was insufficient at the previous trial. That being so, a de novo hearing was mandated. On the first appearance of the present case, we held that Crowell’s defense that the complaint failed to state a claim had been established by the record and that the case was not one which was appropriate for declaratory judgment. Crowell v. City of Eastman, supra, Division 1. That holding was the law of the case. Unlike the appellate ruling in Worley, our ruling in the first appearance of this case did not invite de novo proceedings; it implicitly forbade them. Rather than holding that there was not enough evidence to entitle the plaintiffs to a declaratory judgment, we held that there was enough evidence to establish that the plaintiffs had no claim for declaratory judgment at all. All that remained to be done upon the receipt of the remittitur was for the trial court to vacate its judgment and give effect to this court’s judgment by dismissing the action. “Upon the remittitur from the appellate court being filed in the trial court, the issue is res judicata, and the lower court has no authority to . . . hear further evidence or consider any other matter that would otherwise affect the finality of the judgment of this court. The only action which that court had authority or power to take was to make the judgment of this court the judgment of the trial court. . Shepherd v. Shepherd, 243 Ga. 253, 254 (253 SE2d 696) (1979). It follows, then, that the trial court erred in entertaining appellees’ motion for summary judgment.

“[R]ulings of the appellate courts are binding in all subsequent proceedings in the trial or appellate courts. [Cit.] Moreover, the decision of the appellate court, and any direction awarded, shall be respected and in good faith carried into full effect by the court below. [Cits.]” Stafford Enterprises v. American Cyanamid Co., 164 Ga. App. 646, 650 (297 SE2d 307) (1982). This court has ruled that declaratory judgment is not appropriate in this case. To give that ruling full effect, the trial court must vacate its most recent order and dismiss the declaratory judgment action. It is directed to do so.

2. In light of our holding in the preceding division, the issue raised on the cross-appeal is moot and that appeal is, therefore, dismissed.

Judgment reversed with direction in Case No. 75810. Appeal dismissed in Case No. 75811.

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

Decided July 11, 1988

Rehearing denied July 21, 1988

John M. Brown, Stephen L. Ivie, for appellant.

Will Ed Smith, for appellees.


author: Beasley, Judge. Banke, Presiding Judge,

text:
    75879.
    LARSON v. TANDY CORPORATION.
    (371 SE2d 663)
   Beasley, Judge.

Larson appealed the grant of summary judgment against him in his suit arising from Tandy Corporation’s termination of the business relationship between them.

Tandy is a nationwide retailer of electronic goods to the consumer market through a chain of stores doing business under the registered name “Radio Shack,” a division of Tandy. On November 1, 1974, Larson entered into a Special Manager Incentive Agreement (SMIA) with Tandy whereby Larson agreed to manage a store for compensation equal to one-half of the adjusted gross profit of the store as computed by a specified formula and to provide the company with a $20,000 “security deposit.” The agreement was for a period of two years, automatically renewable annually until either party gave notice of termination 30 days prior to the end of a fiscal year. A right of termination before the two-year period expired was also included.

After the original agreement expired in October 1976, there followed a succession of renewal agreements much like the first SMIA. The last one was for a six-month period from November 1, 1982 to April 30, 1983. Larson received written notice of his termination on June 22, 1983 for what the company stated to be difficulty in following management policies. Larson’s view was that the company simply wanted to replace SMIA managers with company managers so as to increase the company’s profits.

Larson sued Tandy, alleging that the SMIA was a partnership agreement, that it was terminated without notice or justification on terms which were prejudicial and damaging to him and deprived him of “his equity ownership in the business as a going concern.” He maintained that Tandy’s actions constituted a breach of contract, fraud in inducing him to enter into the SMIA, and unfair and deceptive business practices in violation of the Fair Business Practices Act of 1975, OCGA § 10-1-390 et seq.

1. Larson asserts that his business relationship with Tandy was a partnership because there were shared risks, expenses, and interest in profits and losses, so that Tandy could not be allowed to “arbitrarily” dismiss him with no offer of compensation for the value of the enterprise as a going concern and for his lost benefits in future profits and income. He maintains that the unlawful termination of the partnership relationship entitles him to an accounting from Tandy based upon his fair and reasonable share in the value of the enterprise.

The original SMIA expressly provided, “It shall be understood by both Company and Manager that under the terms of this Agreement, Manager is an employee of the Company and as such enters into this Agreement individually and not as a member of any partnership, corporation, or association. Further, Company has the right of final control and direction of Manager and all employees within the Store not only in the ultimate result of the Store’s performance but in all the details of the operation of the Store. The Company has the right to terminate any employee (other than Manager) in the Store immediately and the right to terminate Manager under the terms of this Agreement.” The SMIA also provided that the Manager would at no time have any ownership of the store’s assets other than those provided by the Manager.

This original SMIA and subsequent written agreements expressly stated the nature of the business relationship was that of employer-employee and Larson signed the documents acknowledging this. Larson’s compensation by sharing in the profits would not of itself create a partnership relationship.

While it is true that a partnership exists where there is a joint enterprise, a joint risk, a joint sharing of expenses, and a joint interest in the profits and losses, Smith v. Hancock, 163 Ga. 222, 231 (2) (136 SE 52) (1926), a partnership is not created solely by an agreement to share profits. See Elliott v. Floyd, 85 Ga. App. 416 (69 SE2d 620) (1952); Falk v. LaGrange Cigar Co., 15 Ga. App. 564 (84 SE 93) (1915); Dawson Nat. Bank v. Ward & Gurr, 120 Ga. 861 (48 SE 313) (1904); Sankey & Shorter v. Columbus Ironworks, 44 Ga. 228 (1871).

Under the SMIAs, Larson was responsible for furnishing the security deposit and for equipment which in his opinion was necessary in the operation of the store other than that furnished by the company, while Tandy was responsible for selection and lease of a site for the store premises, selection and delivery of store fixtures, the petty cash fund, all operating and merchandising policies, merchandise inventory, selection of media and time for national and local advertising, the bank checking account, exterior signage, store hours, and the filing of all matters pertaining to the labor force including payroll preparation and compliance with labor and tax laws. Tandy and Larson were jointly responsible for selection of a local bank and for the final right of approval in determining disputes as to operating or personnel matters.

The ultimate decision-making was Tandy’s. What might be termed Larson’s only “risk” in the enterprise was any negative impact on the profits of the store and therefore on his compensation. The undisputed evidence is that Larson held no title, jointly or severally, to the real and personal assets of the enterprise other than that which he furnished, and that he had no right of control as owner over the profits. Sankey, supra. Although Larson contends that the initial $20,000 security deposit was actually used to purchase store inventory, the only evidence as to the purpose and use of the security deposit was that it was to provide the company with security for its investment, to insure the manager’s faithful performance of his obligations under the agreement, and to induce the manager to obtain the best profits possible. The security deposit along with salary due were paid to Larson following the termination.

The undisputed evidence shows that the relationship was not that of a partnership as a matter of law.

2. Is there any evidence that Larson’s termination constituted a breach of contract?

All written SMIAs relied upon by Larson expired by their own terms prior to his termination. Thus the claim of breach of a written agreement fails.

As for a claim of breach of any oral employment agreement, insofar as Larson maintains that to induce him to enter the original SMIA, the company represented that he would be the store manager so long as he operated the business in a profitable manner, such an oral employment agreement cannot support a claim for the recovery of damages or compensation for services not performed or for any breach of contract. Trade City G. M. C. v. May, 154 Ga. App. 371, 372 (2) (268 SE2d 421) (1980).

3. Larson also alleges fraud in the inducement. He claims that when he considered becoming a SMIA manager in 1974, a regional manager assured him that “the only basis for his being terminated as a SMIA would be a level of performance of his particular store which was below five percent of the national average performance of all Radio Shack stores, a level of performance which was ‘completely out of the question.’ ” This assurance, he claims, prompted him to become a SMIA manager.

Even if such a promise of employment for an indefinite term was made, it will support a recovery limited to compensation actually earned, Trade City G. M. C. v. May, supra at 372 (2), which he received. In addition, such a promise cannot support a claim of fraud because it is based on a promise as to future events. Hudson v. Ven ture Indus., 147 Ga. App. 31, 34 (2) (248 SE2d 9) (1978).

4. Appellant further contends that the alleged fraudulent representation constituted violation of the Fair Business Practices Act of 1975, OCGA § 10-1-390 et seq.

For conduct to be actionable under the Fair Business Practices Act, it must be within that class of conduct made unlawful by OCGA § 10-1-393 (a), which proscribes unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce. Before determining whether acts or practices are unfair or deceptive, it must be determined whether the particular activity occurred in the conduct of consumer transactions and consumer acts or practices.

The legislature intended to limit the scope of the Act to the consumer market. Its coverage is limited to activities in the conduct of consumer transactions and consumer acts or practices in trade or commerce. Benchmark Carpet Mills v. Fiber Indus., 168 Ga. App. 932 (311 SE2d 216) (1983). This case does not involve a consumer transaction. OCGA § 10-1-392. Employment is not a consumer item.

Even if we accept the characterization that we are dealing with the sale of a business interest, the FBPA does not aid appellant. Application of “two factors are determinative: (a) the medium through which the act or practice is introduced into the stream of commerce; and (b) the market on which the act or practice is reasonably intended to impact. It is only when the application of both of these factors indicates that the act or practice occurred within the context of the consumer marketplace that the fairness or deceptiveness of the act or practice need be examined. This is so because an act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the FBPA.” Benchmark Carpet Mills v. Fiber Indus., supra at 934.

Here, the alleged deception was not introduced into the stream of commerce. Nor was it reasonably intended to impact on any “market” other than Larson. The FBPA does not “provide an additional remedy for private wrongs which do not and could not affect the consuming public generally.” Zeeman v. Black, 156 Ga. App. 82 (273 SE2d 910) (1980). The Act has no applicability to Larson’s claims.

5. Woven through his argument on appeal is Larson’s contention that at all times of his management, he did an excellent job in adhering to company policies and in showing a good economic performance and that his termination was based upon a policy formulated by Tandy to eliminate SMIA managers in order to substitute company managers who would share less in store profits, resulting in increased income to Tandy. He maintains that the reasons given for his termination were essentially baseless and given in order to mask such policy.

Tandy submitted evidence of Larson’s failure to adhere to certain policies including tardy opening of the store and permitting employees to borrow funds from the cash register. In support of Larson’s contention about company subterfuge, he cites a fellow SMIA’s deposition statement that the company wanted to get him (the colleague) out of his store because he was a SMIA manager and that “little things” made the fellow SMIA think that the company was “really concerned about getting rid of those franchise stores and putting in company managers to increase their share of the profit.”

Larson submitted no evidence whatsoever to show a policy implemented against him to force him out, nor did he submit evidence to rebut the company’s documentation of his violations of certain company policies, which would have provided reason for his termination.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Parley, Sognier, Pope, and Benham, JJ., concur. McMurray, P. J., and Banke, P. J., dissent.

Banke, Presiding Judge,

dissenting.

I would reverse the grant of Tandy’s motion for summary judgment.

By the terms of the written agreement, Tandy was authorized to “withdraw from Manager’s Security Deposit ... (4) Any loss sustained by [Tandy] by reason of Manager’s failure to manage the Store and/or protect the assets of the store with a reasonable degree of care, skill and judgment; and/or, his/her failure to fulfill Manager’s obligations under this Agreement.” The agreement further specified that in the event the company’s “total investment” in inventory and net book value of fixed assets in the store should come to exceed double the amount of the security deposit, the manager could be required to make an additional security deposit in an amount equal to 50 percent of such excess and could be held accountable for a “return on investment charge” on the amount of such excess until the additional security deposit was made. On the basis of these additional contractual terms, I believe a material factual question exists as to whether the appellant shared with Tandy a joint risk of loss as well as a joint interest in profits, with the result that, notwithstanding the language of the agreement specifying that no relationship other than that of employee-employer was contemplated, he acquired an equity interest in the business.

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

Decided July 5, 1988

Rehearing denied July 21, 1988

Morgan M. Robertson, for appellant.

Everette L. Doffermyre, Jr., for appellee.

       The parties agree that the Uniform Partnership Act (UPA), OCGA § 14-8-1 et seq. does not control because this action was filed prior to the effective date of the Act.


author: Beasley, Judge.

text:
    76157.
    McCLINTOCK v. WELLINGTON TRADE, INC.
    (371 SE2d 893)
   Beasley, Judge.

McClintock purchased from Containerhouse one hundred used ocean freight containers to be resold and utilized as mini-warehouses. The purchase was made on credit and effected by a Purchase and Security Agreement, drafted by McClintock’s counsel working on the instructions of both parties. It provided for payment by three differing promissory notes, one dubbed short term and two dubbed long term. Each was secured by a set number of the containers, with differing specifications among the three groups.

Although title to all one hundred containers was delivered immediately, only sixteen of the first group of containers were physically delivered, as McClintock directed. McClintock failed to pay according to the terms of the notes and Containerhouse deemed McClintock to be in default of all three notes and made a written demand. McClintock’s attorney wrote Containerhouse’s attorney advising that Mc-Clintock did not consider himself to be in default due to the quality of the containers but that he elected to proceed with the appraisal method pursuant to paragraph 4.7 of the agreement.

Approximately one month later, McClintock’s counsel again wrote Containerhouse’s counsel with regard to the appraisal. The letter stated that it was McClintock’s contention that the agreement became effective only with respect to sixteen containers which had been physically delivered and which were secured by the short term note; therefore, that McClintock would have those sixteen containers appraised and would apply the provisions of paragraph 4.7 on a pro rata basis, at the original agreed upon price of $2,600 per container. (The other two groups of containers bore a different price.) Two days later, Containerhouse’s attorney replied that in addition to the sixteen containers which were actually delivered, there were six additional containers set aside for delivery but that McClintock never gave directions as to where he wanted to place them. (This letter erroneously referred to six containers rather than five to complete the number of twenty-one containers secured by the short term note.) It was Containerhouse’s position that these containers should also be appraised and that there was a binding contract for McClintock to purchase all the containers referred to in the agreement.

McClintock had the sixteen containers appraised. Containerhouse had all of the containers appraised and determined that there was a deficiency. Containerhouse recovered the containers which had actually been delivered. Some of these and of the remainder of the one hundred were resold, and some were retained. Notice of the sale was not given to McClintock.

Containerhouse sued McClintock in three counts, one on each note, for the differences between the outstanding balances on the notes and the appraised values, a total of $107,100 plus pre-judgment interest at the contract rates (computed up to the time of filing as approximately $24,000) and statutory attorney fees. McClintock counterclaimed alleging that Containerhouse breached the agreement in that the initial sixteen units were of poor quality and non-conforming and that the company had defrauded him by inducing him to enter into the agreement knowing it would not perform, and by delivering units of inferior quality and of substantially lesser value than that contracted for. He also claimed that he was entitled to notice of the sale and since he did not get notice, no action for a deficiency was allowed.

A jury awarded Containerhouse $135,997.50 plus $2,160 sales tax and attorney fees and expenses of $14,020; the jury also found for plaintiff Containerhouse on the counterclaim.

1. Appellant contends that the trial court erred in ruling as a matter of law that he exercised his right to proceed under paragraph 4.7 of the Purchase and Security Agreement as to all one hundred containers, rather than only the sixteen containers which had been physically delivered.

He argues that in so ruling the trial court was “granting a partial summary judgment during the course of the trial” despite clear evidence that the appraisal election applied at most to the twenty-one containers which secured the short term note, that at the very least there was a factual question, including an estoppel issue, with regard to the scope of the appraisal request. Containerhouse responds that the court’s ruling was a proper construction of the contract.

It becomes necessary to examine the relevant provisions of the parties’ agreement. Paragraph 4.6 provided: “If an Event of Default . . . occurs with respect to the Short Term Note and is continuing, Containerhouse, at its option, and upon 30 days’ notice to McClintock, will, subject to McClintock’s rights under Paragraph 4.7 have the right to take possession of the Containers securing the Short Term Note and may sell the Containers or any part or parts thereof at public or private sale and may apply the net proceeds, after deducting all costs and expenses for collection, sale and delivery, to the payment of the Short Term Note. If an Event of Default. . . occurs with respect to either of the Long Term Notes and is continuing, Containerhouse shall, upon 30 days’ written notice to McClintock, take possession of the Containers securing the Long Term Note(s) in default and shall sell such Containers or any part or parts thereof at public or private sale and shall apply the net proceeds, after deducting all costs and expenses of collection, sale and delivery to the defaulted Long Term Note(s). At a public sale, Containerhouse may purchase all or any part of the Containers offered at such sale. In addition, Containerhouse will have all of the rights and remedies of a secured party under the applicable Uniform Commercial Code or otherwise as provided by law. McClintock will have the obligation promptly to assemble the Containers and make available to Containerhouse or its assignee at a place and time convenient to both parties. In addition to the 30-day notice of default, Containerhouse will give notice to McClintock of any sale or other disposition of the Containers and the mailing of such notice to McClintock at his address last known to Containerhouse, at least ten days before any sale or other disposition, conclusively will be deemed reasonable notice thereof.”

Paragraph 4.7 provided: “(a) Notwithstanding anything to the contrary in the Agreement, in order to avoid loss to McClintock which may be occasioned by a distress sale of the Containers, Containerhouse or its assignee hereby agrees, if McClintock makes the election referred to in paragraph 4.7 (b), to accept title to the Containers with regard to the Short Term Note, and in any event with respect to the Long Term Note(s), at the lesser of (i) the appraised fair market value of the Containers at the time of foreclosure (‘Appraised Value,’ as further defined hereinafter), or (ii) the amount then outstanding on the Long Term Note(s).

“(b) If McClintock receives from Containerhouse the notice of default referred to in Paragraph 4.6, McClintock may notify Containerhouse, within 30 days of the date of such notice, of its election to proceed in accordance with this Paragraph 4.7. If McClintock so elects, McClintock and Containerhouse will each retain, within 20 days of Containerhouse’s receipt of notice of such election, an independent qualified appraiser ... to appraise as promptly as is practicable, but in any event within 30 days from the date of his appointment, the fair market value of the Containers based on their quality and quantity and the anticipated costs and proceeds of its disposition at the wholesale level on a commercially reasonable basis in accordance with practices then prevailing in the industry . . . The Appraised Value will be the average of the values determined by these two appraisals;. . . The determination of the Appraised Value by the appraisers or pursuant to appraiser arbitration, as the case may be, will be binding on the parties and enforceable in any court having jurisdiction thereof.

“(c) After the Appraised Value is determined McClintock will have the obligation to assemble the Containers and make them available to Containerhouse or its assignee at a place and time convenient to both parties. Thereafter, Containerhouse or its assignee will have all right, title and interest in the Containers.”

Paragraph 4.9 provided: “Nothing contained in this Paragraph 4 will obligate McClintock further than to bind the right, title and interest of Containerhouse in and to the Containers, and on default hereunder McClintock will be personally liable for, and only for, the amount due with respect to the Short Term Note, and that portion of Long Term Notes after application of any proceeds from the disposition, or other application of the value, of the Containers, as herein provided.”

The ruling at issue came about following plaintiff’s objection to defendant’s direct examination of the attorney who drafted the purchase agreement. Defendant asked the attorney if when the attorney drafted the agreement, it was the attorney’s understanding that the intention of the parties under paragraph 4.7 was that if there was an election by McClintock to proceed under that paragraph that Mc-Clintock would waive his rights to receive credit for monies that Containerhouse generated by selling the containers. Plaintiff objected on the basis that the question violated the parol evidence rule, because it was an attempt to use testimony to “construe and change the terms of an unambiguous contract,” that the “contracts spoke for themselves.” The jury was removed and the parties argued at length as to whether or not the contract terms were ambiguous so as to permit the defendant to continue the objected-to line of questioning. The court then attempted to narrow or crystallize the issues that the jury would have to determine.

Plaintiff’s position was that there were no issues for the jury other than to calculate the damages according to the notes, that once McClintock elected the appraisal method under paragraph 4.7, it covered all one hundred containers and he waived notice of any sale of the collateral. Defendant responded that the contract did not contain waiver language and that none was implied, that it did expressly provide for notice, and that in any event he had elected to have only part of the collateral appraised.

The court ruled that McClintock had made an election to have all the containers appraised. The direct examination of defendant’s witness resumed thereafter.

The court later charged the jury that “under the contract of the parties, once the defendant made an election to proceed under paragraph 4.7, from the point of election the parties were bound to follow the appraisal procedure set forth in paragraph 4.7. After the election was made the plaintiff had no obligation to notify the defendant of any further sales or to give him credit for any later sales.”

It is clear that the court construed the parties’ agreement with respect to whether the contract allowed partial or only total appraisal choice. It is not clear whether the court construed it as allowing only all or nothing so that the choosing of appraisal method constituted a total election as a matter of law, (which is appellee Containerhouse’s understanding of the court’s ruling), or whether the court construed the agreement as allowing a choice between some or all and that evidence of the choice made here undisputedly amounted to a total election as a matter of fact (which is appellant’s understanding of the court’s ruling). Regardless of which interpretation of the court’s analysis is accurate, the jury was told that McClintock’s election was as to all the containers. In either event the threshold and dispositive question is not whether the disputed ruling was one of fact or one of law but whether the parties’ contract on this point was susceptible to construction by the court.

“Ordinarily, . . . , ‘[t]he construction of a contract is a question of law for the court,’ OCGA § 13-2-1, the cardinal principle of construction being the ascertainment of the parties’ intention. OCGA § 13-2-3. Where there appears to be an ambiguity in the contract, however, a jury question may arise, since resolution of the apparent ambiguity may require a consideration of evidence (including parol evidence) regarding the facts which reflect the intention of the parties in entering into the contract. [Cits.] Questions of fact, of course, are the province of the jury. [Cit.]

“The existence or non-existence of an ambiguity is itself a question of law for the court. [Cit.] If the court determines that there is an ambiguity, this does not automatically give rise to a jury question, however. [Cit.] At this point it becomes the duty of the court to attempt to resolve the ambiguity by applying the rules of construction set forth in OCGA § 13-2-2. [Cits.] It is only when the ambiguity remains after the statutory rules have been applied that the issue becomes one for the jury. [Cits.]” Capital Ford Truck Sales v. U. S. Fire Ins. Co., 180 Ga. App. 413, 417 (1) (349 SE2d 201) (1986), rev’d and vacated on other grounds, 257 Ga. 77 (355 SE2d 428) (1987), 183 Ga. App. 242 (360 SE2d 78) (1987).

Looking at the entire contract, the provisions relating to the appraisal election and to what it applies and when are ambiguous, there being more than one way in which these provisions might be reasonably construed. Applying the applicable rules of construction, OCGA §§ 13-2-2 (1), (4), (5) and 13-2-3, the provisions are still ambiguous and, the intention of the parties being factually in dispute, appellant was entitled to a jury resolution of the issue. See Travelers Ins. Co. v. Blakey, 255 Ga. 699 (342 SE2d 308) (1986), Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986).

Inasmuch as the jury was improperly precluded from construing the unresolved ambiguous contract and inasmuch as the jury’s verdict was premised on the court’s inappropriate determination, the judgment on the main claim cannot stand.

2. Appellant contends that the trial court erred in excluding from evidence a letter from Containerhouse’s owner to McClintock’s then-counsel and testimony regarding the letter in that the evidence was relevant to the question of whether McClintock’s request to proceed under paragraph 4.7 applied to all one hundred containers rather than only sixteen.

The trial court did not err in excluding the letter and testimony about its contents because the letter evidenced an attempt to compromise the dispute. OCGA § 24-3-37; Allen v. Brackett, 165 Ga. App. 415 (1) (301 SE2d 486) (1983).

3. Appellant contends that the court erred in ruling that his request to proceed under paragraph 4.7 constituted a waiver of his right to notice of the sale or disposition of the collateral.

The court’s ruling that McClintock waived notice of disposition or sale of the collateral is affected by the court’s unauthorized determination and jury charge that McClintock elected the appraisal method for all the collateral. The notice provision also suffers from ambiguity not resolvable by court application of the rules of construction and therefore should have been left for interpretation by the jury. See Division 1.

Appellant has failed to provide any authority for the claim that OCGA § 11-9-504 (3) required that he be provided with reasonable notice of the time and place of the sale of the collateral regardless of the contract language. As appellee observes, the Uniform Commercial Code authorizes parties to vary its provisions and allows for the discharge of claims or rights arising out of an alleged breach by written waiver or renunciation. OCGA §§ 11-1-102 (3); 11-1-107. Furthermore, OCGA § 11-9-505 (2) allows a debtor to renounce or modify his rights by signing a statement after default. Even if the parties could not by contract waive notice under the Code, the question of whether or not McClintock’s actions and writings constituted a renunciation or modification of notice rights under OCGA § 11-9-505 (2) was not ruled on below. See also OCGA § 11-9-501 (3).

4. McClintock also contends that the court erred in excluding his testimony and that of the attorney who drafted the agreement as to whether he intended to waive his right to receive notice of sale or disposition of the collateral when he made his request to proceed under the appraisal option.

Whether or not such parol evidence was properly admissible depended on the court’s interpretation of the contract as being ambigúous or not. See OCGA § 24-6-1. The contract was ambiguous, see Division 1, and the sought testimony was relevant not only to determine the parties’ intent at the time of election of the appraisal but also to ascertain the intent as to the notice provisions at the time of making the contract.

5. Our decision in Division 1 disposes favorably of appellant’s contention that the court erred in charging that once he made an election to proceed under paragraph 4.7, the parties were bound to follow the appraisal method and he had no right to receive notice of disposition of the collateral.

6. In two separate enumerations, appellant asserts that the court erred in refusing to direct a verdict in his favor based upon the lack of any evidence of waiver of notice and of a valid appraisal of the collateral securing the long term notes.

Such contentions are moot. See Division 1.

7. Appellant further contends that the court erred in excluding testimony and limiting the cross-examination of Containerhouse’s owner, Sikes, on the question of expenses and overhead costs allegedly resulting from his refusal to pay for the containers in that such expenses and costs had been testified to on direct examination by Sikes as justification for the amount of liquidated damages sought by Containerhouse.

The evidence sought was relevant on the question of the damages claimed by Containerhouse as well as the credibility of Sikes. It was error to preclude it. OCGA § 24-9-64; Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 547 (6) (309 SE2d 816) (1983).

8. Appellant’s claim that the verdict was not supported by the evidence and not authorized by the law with regard to the reasonableness of liquidated damages is rendered moot by Division 1.

9. Lastly, appellant claims that the court erred in directing a verdict in favor of Containerhouse on Count II of his counterclaim, which alleged damages for fraud in connection with the sale of the containers.

The only evidence of the claimed fraud was of promises of future performance by Containerhouse. “ ‘[F]raud cannot be predicated upon statements which are promissory in their nature as to future acts. [Cits.]’ [Cit.]” First Nat. Bank &c. Co. in Macon v. Thompson, 240 Ga. 494, 495 (241 SE2d 253) (1978).

Further, McClintock did not personally inspect the initially delivered containers, which he later claimed were inferior. McClintock had a duty to exercise due diligence to protect his interests, which he did not do. Lorick v. Na-Churs Plant Food Co., 150 Ga. App. 209, 210 (257 SE2d 332) (1979). While questions of due diligence are often for the trier of fact, that is not always the case. One may fail to exercise due diligence as a matter of law, as in this case. See Bowen & Bowen v. McCoy-Gibbons, 185 Ga. App. 298, 303 (1) (363 SE2d 827) (1987). “ ‘ “(W)hen the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser does not avail himself of these means, he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller.” [Cit.]’ [Cit.]” Lorick, supra at 210. Thus the fraud claim failed as a matter of law. Shivers v. Sweda Intl., 146 Ga. App. 758, 759 (247 SE2d 576) (1978).

Decided July 7, 1988

Rehearing denied July 21, 1988

C. David Hailey, for appellant.

James W. Penland, for appellee.

The judgment on the counterclaim stands.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Banke, P. J., concur.


author: Carley, Judge. Deen, Presiding Judge,

text:
    76478.
    SEVEN HILLS SECURITY, INC. et al. v. DILLINGHAM.
    (372 SE2d 1)
   Carley, Judge.

Appellant-defendant Tim Brannon, acting on behalf of his employer, appellant-defendant Seven Hills Security, swore out a warrant for the arrest of appellee-plaintiff on a charge of criminal trespass. Appellee was prosecuted on this criminal charge. At the trial of the criminal action, appellee moved for a directed verdict of acquittal at the close of the State’s evidence. The trial court denied appellee’s motion. Appellee moved for a directed verdict of acquittal at the close of all the evidence. The trial court then granted appellee’s motion.

Appellee subsequently brought this suit against appellants, seeking to recover for malicious prosecution. Appellants answered, denying the material allegations of the complaint. After a period of discovery, appellants moved for summary judgment. The trial court denied appellant’s motion, but certified its order for immediate review. This appeal results from the grant of appellants’ application for an interlocutory appeal from the trial court’s denial of their motion for summary judgment.

This case is controlled by our recent decision in Griffin v. Ga. Power Co., 186 Ga. App. 565, 567 (1) (367 SE2d 832) (1988), cert denied. “Since any subsequent determination as to a defendant’s guilt made at the close of all of the evidence is not inconsistent with any previous determination made at the close of the State’s evidence, it would necessarily follow that any finding which was implicit in the trial court’s denial of [appellee’s] initial motion for a directed verdict of acquittal would not be obviated by the trial court’s grant of [appellee’s] second motion. Implicit in the denial of [appellee’s] initial motion for a directed verdict of acquittal was the trial court’s determination of the existence of probable cause for the prosecution. [Cit.] This determination is unreversed and is binding. The grant of [appellee’s] subsequent motion for a directed verdict of acquittal establishes only that the criminal prosecution terminated in his favor. ‘(T)he existence of probable cause has been established, during the trial of the criminal case, in such manner as to preclude [appellee’s] action for malicious prosecution.’ [Cit.]”

Griffin v. Ga. Power Co., supra, cannot be distinguished on its facts. The trial court presiding at appellee’s criminal prosecution did not withhold its ruling on appellee’s initial motion for a directed verdict of acquittal and then subsequently grant that motion after the close of all the evidence. Here, as in Griffin v. Ga. Power Co., supra, there was a denial of the initial motion for a directed verdict of acquitted followed by the grant of a second motion, not merely the delayed grant of the initial motion. “[A] motion for a directed verdict of acquittal was made and denied at the close of the State’s evidence. A trial court cannot choose to deny a meritorious motion for a directed verdict of acquittal made at the close of the State’s case.” (Emphasis in original.) Griffin v. Ga. Power Co., supra at 566 (1). The evidence established, as a matter of law, the existence of probable cause for appellee’s criminal prosecution. Accordingly, the trial court erred in denying appellant’s motion for summary judgment as to their non-liability for the alleged malicious prosecution of appellee.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Sognier and Pope, JJ., concur. Deen, P. J., Banke, P. J., Benham and Beasley, JJ., dissent.

Deen, Presiding Judge,

dissenting.

I agree with the majority opinion that the instant case is controlled by this court’s recent decision of Griffin v. Ga. Power Co., 186 Ga. App. 565 (367 SE2d 832) (1988), in which this writer was one of the five judges constituting the majority vote. Upon further consideration of the issue presented by Griffin and the instant case, however, I am now convinced that the dissenting opinion in Griffin states the better rule.

Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987), states a hard and fast rule, i.e, denial of a motion for a directed verdict of acquittal constitutes a binding determination of the existence of probable cause. It is not inconceivable that a trial court may err in denying the motion and thereby assure the acquitted criminal defendant’s failure in any subsequent action for malicious prosecution. This court cannot avoid the application of Monroe v. Sigler where only one motion for directed verdict is made and denied, but we need not unnecessarily extend it to situations where two motions for directed verdict of acquittal are made, with the first motion being denied and the second being granted. As noted by the dissenting opinion in Griffin, extending the application of Monroe v. Sigler “ignores the practical realities that often attend and influence the disposition of initial motions for directed verdict in criminal cases.” It also “requires no resort to transcendentalism for us to know” that sooner or later a party will avoid civil liability despite having maliciously instigated the prosecution of another. Southern R. Co. v. Wafford, 7 Ga. App. 652 (67 SE 831) (1910). Such a result understandably will strike some as unfair.

Decided June 29, 1988

Rehearing denied July 21, 1988

J. Anderson Davis, Karl M. Kothe, for appellants.

John E. Sawhill III, William Sparks, for appellee.

In the instant case, the initial denial of the motion for directed verdict of acquittal, followed by the eventual grant of the second motion, should not require a finding as a matter of law that probable cause existed. Rather, it should have no conclusive evidentiary effect in a subsequent action for malicious prosecution. Accordingly, I believe that Griffin should be overruled, and that the trial court’s denial of the appellants’ motion for summary judgment in this case should be affirmed.

I am authorized to state that Presiding Judge Banke, Judge Ben-ham, and Judge Beasley join in this dissent.


author: Deen, Presiding Judge. Sognier, Judge,

text:
    75931.
    SALCEDO v. THE STATE.
    (372 SE2d 238)
   Deen, Presiding Judge.

Appellant was convicted of burglary and he appeals.

1. Appellant contends the trial court erred by denying his motion in limine, thereby allowing the State to present evidence of an alleged rape in Florida of which appellant was acquitted in a jury trial.

The indictment in the instant case alleged that appellant committed the offense of burglary with intent to commit rape. The victim in this case, Jan Martin, testified that she awoke about 6:00 a.m. and saw the dim image of a man, later identified as appellant, coming through her bedroom doorway. Appellant walked to the side of Martin’s bed, took off his shoes, and sat on top of Martin, straddling her. Appellant did not have a shirt on; his pants were unzipped and his penis was out. Martin realized that appellant was the man who had asked to use her telephone about a week earlier, stating that he was lost and wanted to call his brother for directions. Martin therefore decided to engage appellant in conversation and ultimately was able to escape by running out of her house to a neighbor’s house. Entry to Martin’s house had been gained through some French doors.

Over appellant’s objection, asserted through his motion in limine, the State was allowed to present the testimony of Janice Wheaton and Detective John Zipperer concerning the alleged rape of Wheaton by appellant in Jacksonville, Florida; appellant had been tried there for burglary and sexual battery (rape), but was acquitted of sexual battery and found not guilty of burglary, but guilty of criminal trespass. Wheaton testified that she worked with appellant’s wife, and appellant and his wife had made two social visits to Wheaton’s apartment. She testified that the couple separated, and about a week later she awakened at 3:00 a.m. and appellant was standing at the side of her bed with a white sweater over his head. Appellant said “[s]pread your legs,” got on top of Wheaton, and raped her.

Detective Zipperer testified that he was with the Jacksonville police department and investigated the complaint filed by Wheaton. Zipperer also testified that several items of physical evidence were collected which were later determined to have no evidentiary value. Zipperer testified that appellant was found not guilty of sexual battery and burglary in his Florida trial, but was found guilty of criminal trespass. After testifying that the State paid his expenses to appear in the instant case, Zipperer testified he would have paid every penny himself to come to Georgia, because “I felt that a criminal got ofF at the preceding trial in Jacksonville, and I felt that the man needed to be placed somewhere where he could not rape any more women.”

Appellant contends that testimony relating to the sexual battery charge of which he was acquitted in Florida was admitted improperly, because the doctrine of collateral estoppel barred admission of the testimony of Wheaton and Zipperer.

While we agree with appellant that an acquittal is generally not admissible as evidence of a similar transaction because it amounts to relitigation of an issue already decided in a defendant’s favor, this state has adopted an exception to this rule where a sexual offense is charged and the defendant has been previously acquitted. See Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984).

In Moore v. State, 254 Ga. 674, 676 (333 SE2d 605) (1985), the court held that the State must satisfy a two-prong test for such evidence to be admitted: (1) that the defendant was in fact the perpetrator of the separate offense and (2) that the offenses are sufficiently similar so that proof of the former tends to prove the latter. To satisfy the first prong of the test in Moore, the State presented evidence that the defendant admitted having sexual relations with the victim and claimed that she consented. As he was acquitted of rape and convicted of criminal trespass, it is obvious that the jury believed his consent defense. The State satisfied the second prong of the test by establishing the similarities between the offenses. In both instances, he entered the victim’s residence during the early morning hours while the victim was asleep, that he was partially disrobed when he entered her bedroom, that he called out a name when he knocked on the door before entering without permission, that he admitted to drinking the night before, that he had been to the victim’s home one or two weeks before the incident, that he knew the victim lived alone, and that he claimed to have sat down on the edge of her bed and talked to her.

As both requirements of the Moore case have been satisfied, the evidence was properly admitted and the appellant’s conviction is affirmed. The sine qua non of Felker and the instant case is that identity and participation of the acts (except by consent on the latter case) is not in dispute, while in Moore they were in dispute. The case sub judice fits the legal test of Felker and Moore while also fitting the facts of Felker.

2. As no objection was raised in the court below to the testimony of a witness who testified as to appellant’s testimony in the Florida trial, he has not presented this issue to this court for review on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (350 SE2d 51) (1986).

3. After the trial court ruled that evidence surrounding the similar transaction in Florida was admissible it gave limiting instructions prior to the testimony of witnesses who either testified about appellant’s testimony at trial or appeared as a witness at that trial. Defense counsel had requested such instructions and made no objection to their wording when they were given. On appeal, he contends that the court’s charge to the jury: “Whether the accused has or has not committed any other similar offenses is a matter solely for your determination” was improper because it gave the jury the option of determining whether he had committed the similar offense when the Florida jury acquitted him. In making this argument, appellant overlooks the remainder of the charge which stated: “However, if you believe that the accused has had similar transactions, you will bear in mind with any such evidence you are considering solely with reference to the mental state or intent of the defendant insofar as the same is applicable to or refers to or illustrates the charge contained in the bill of indictment in this case and for no other purpose.” We find no error in this charge taken as a whole. Rosenthal v. Hudson, 183 Ga. App. 712, 714 (360 SE2d 15) (1987). We also note that the State maintains that this charge was requested by the appellant.

4. Appellant filed a motion to prevent the use of the word “rape” during the course of his trial. The court denied the motion, but agreed to give curative instructions the first time the word was used at trial.

The first time the word “rape” was used was when the judge read the indictment to the jury: “that said accused . . . without authority and with intent to commit a felony, to wit: rape therein, did enter a dwelling house . . .” No curative instruction was given after the reading of the indictment, and appellant raised no objection. We find that one was not necessary as the court was reading the indictment to inform the jury of the charges against the defendant. Later, when the Florida investigating officer testified that the defendant was charged with “sexual battery” in Florida, which was the same offense as “rape” in Georgia, no curative instruction was given and no objection was raised. The word “rape” was subsequently used several times during the testimony of the remaining witnesses. No curative instruction was given, and appellant neither renewed his request nor objected to the use of the word by the witnesses.

Accordingly, we find that he waived his objection to the use of the word “rape” during his trial. During trial, an accused cannot ignore what he considers to be an injustice, take his chances on a favorable verdict, and then complain of harm on appeal. Castillo v. State, 178 Ga. App. 312 (342 SE2d 782) (1986).

Judgment affirmed:

Sognier, Judge,

dissenting.

I respectfully dissent. This case deals with application of the collateral estoppel doctrine when a defendant has been acquitted at a prior trial. It does not deal with the rule relating to admissibility of evidence of similar transactions, applied by the majority, and contrary to the statement in the majority opinion, Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984), did not relax application of the collateral estoppel doctrine in cases involving sexual offenses.

The collateral estoppel doctrine provides that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Moore v. State, 254 Ga. 674, 675 (333 SE2d 605) (1985); Riley v. State, 181 Ga. App. 667, 668 (1) (353 SE2d 598) (1987); Lucas v. State, 178 Ga. App. 150 (342 SE2d 377) (1986). “In Moore v. State, [cit.], the Georgia Supreme Court held that evidence of prior criminal misconduct on the part of a defendant which would otherwise be relevant and admissible to prove identity, motive, bent of mind, or course of conduct is rendered inadmissible under the doctrine of collateral estoppel where the defendant has been tried and acquitted of the alleged prior offense.” Banks v. State, 185 Ga. App. 851, 852 (366 SE2d 228) (1988). (Emphasis supplied.)

There is no question in the instant case that the State was attempting to relitigate the alleged rape of which appellant had been acquitted in Florida. The State was allowed to call Janice Wheaton, the alleged victim in the Florida case who testified that appellant entered her apartment, got on top of her, and raped her. The detective who investigated the Florida case was allowed to testify that he came to Georgia to testify because “I felt that a criminal got off at the preceding trial in Jacksonville, and I felt that the man needed to be placed somewhere where he could not rape any more women.” (Emphasis supplied.) It should be noted in this regard that appellant in the instant case was not charged with rape. If the testimony quoted above leaves any doubt that the State was relitigating the Florida rape case, that doubt was dispelled by the prosecuting attorney’s question to Wheaton: “At what point in time did you realize that the person that . . . was raping you, was Raphael Salcedo [appellant]?” (Emphasis supplied.) Further, in her closing argument the prosecuting attorney stated that “[t]he man you have before you is a rapist,” and “there is no doubt in my mind that she [Wheaton] was raped by this man.” (Emphasis supplied.) Such statements by the prosecuting attorney and the testimony of Wheaton demonstrate clearly a blatant attempt by the State to relitigate the Florida case and establish that despite appellant’s acquittal in Florida he did, in fact, rape Janice Wheaton. This is not permitted under the holdings in Moore, Riley, Lucas and Banks, supra. “A defendant’s guilt ‘may not be proved by showing the commission of other crimes to prove that the accused has a criminal nature.’ [Cit.]” Felker, supra at 359 (1(a)).

Since the only apparent purpose of the State’s relitigation of the alleged rape in Florida was to show that appellant was a person of bad character, I would reverse his conviction. “The fact that there is other sufficient evidence to convict does not make the error harmless; rather, the test is whether the evidence may have influenced the jury’s verdict.” Moore, supra at 677. In my opinion, no one could honestly say that evidence of the alleged rape in Florida did not influence the jury’s verdict.

Lastly, I would like to point out that the majority opinion sub silentio overrules Banks, supra, authored by Presiding Judge Banke; Riley, supra, authored by Judge Carley; and Lucas, supra, authored by Judge Benham. Hence, I dissent to the failure of the majority opinion to specifically overrule those cases.

I am authorized to state that Chief Judge Birdsong, Judge Pope, and Judge Benham join in this dissent.

Decided July 1, 1988

— Rehearings denied July 14, 1988 and July 22, 1988 —

James E. Malone, Dennis C. O’Brien, for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, Eleni Ann Pryles, Assistant District Attorneys, for appellee.