text:
    A97A0813.
    In the Interest of C. W., a child.
    (490 SE2d 442)
   Beasley, Judge.

C. W. appeals from the order of the juvenile court adjudicating him delinquent and ordering him detained for treatment. The adjudication was predicated on acts of fleeing or attempting to elude a police officer, OCGA § 40-6-395, obstruction of an officer by offering or doing violence, OCGA § 16-10-24 (b), interference with government property, OCGA § 16-7-24, and disorderly conduct, OCGA § 16-11-39.

On June 25, 1996, about 7:00 p.m., a resident of a subdivision stopped Patrol Officer Eitneier and told him that two male juveniles were driving a go-cart through people’s yards and on the street and that he had almost run them over. He requested the officer to ask them to stay off the street and to be careful. The officer said he would do so if he saw them.

About twenty minutes later, as Eitneier left one of the houses, he saw the go-cart come back into the subdivision from the woods at the back of the property and go into the street. He activated the siren on his patrol car to stop the go-cart to warn the youths for their safety and to prevent trespass and violation of rules of the road. But C. W., the 15-year-old driver, looked at him and drove into the woods. Eitneier activated his siren again, but C. W. did not stop.

Eitneier radioed for another patrol car to meet him at a nearby intersection, where he presumed C. W. would emerge. He arrived there before any other vehicle and placed his car in the road. C. W. approached, and Eitneier told him to get off the go-cart. C. W. instead evaded the car but wrecked the go-cart in doing so. As Eitneier approached, the passenger fled. C. W. was momentarily entangled in the go-cart. He extricated himself and began to run. Eitneier told him to stop, and after two or three more steps, he did so. Because C. W. had attempted to elude him on the go-cart and on foot and was larger than Eitneier, Eitneier decided to place handcuffs on him. C. W. profanely told Eitneier he could not arrest him because he was a juvenile. After being handcuffed he said he would beat Eitneier if he would remove the handcuffs and remove his badge. He also said “Don’t let me catch you on the street; I’ll kill you” and continued with profanities. Eitneier placed C. W. in the back of his patrol car and waited for another patrol car to arrive.

C. W. began to kick the door and window while screaming profanities. Eitneier told him to cease or he would spray him with pepper spray, but C. W. continued despite at least eight warnings. Another officer arrived, and Eitneier outlined the situation. C. W.’s kicks began to deform the door, and the other officer advised spraying him to control his combativeness. The officers opened the car and sprayed C. W, who kicked at the officers. They closed the door, and shortly C. W. kicked out the car’s window.

C. W.’s mother arrived and asked for an explanation. Because they were on a busy street, blocking traffic, and people were gathering, the officers decided to go to the police station for safety rather than discuss the matter there. When they arrived, Eitneier assisted C. W. in washing his eyes, and C. W. was released to his mother.

1. C. W. first contends his motion to dismiss the delinquency petition should have been granted because certain procedures required by the juvenile code were not followed, including that C. W. was taken to the police station when he was in custody.

OCGA § 15-11-19 (a) directs “[a] person taking a child into custody, with all reasonable speed and without first taking the child elsewhere” to (1) “[forthwith release the child without bond to his parents . . . upon their promise to bring the child [to] court”; (2) take the child to a medical facility when applicable; (3) “[b]ring the child immediately before the juvenile court or promptly contact a juvenile court intake officer”; or (4) bring a child suspected of a delinquent act before the superior court. The State contends it complied with OCGA § 15-11-19 (a) (1) to the extent necessary. It is undisputed that the police did not take the child to a medical facility or to court.

Taking the juvenile to police headquarters did not comply with OCGA § 15-11-19 (a)’s requirement that one of the four specified actions be taken “without first taking the child elsewhere.” See Lattimore v. State, 265 Ga. 102, 103-104 (2) (b) (454 SE2d 474) (1995). However, a technical violation of that provision does not require dismissal if it does not produce any prejudice or injury to C. W. In the Interest of J. D. M., 187 Ga. App. 285, 287 (2) (a) (369 SE2d 920) (1988). See also Paxton v. State, 159 Ga. App. 175, 177-178 (1) (282 SE2d 912) (1981).

C. W. argues that failure to comply with OCGA § 15-11-19 must result in dismissal of the petition, citing Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406, 411 (229 SE2d 66) (1976). That case, decided under a former version of the Code, refers to the notice provision now found at OCGA § 15-11-19 (c). See Sanchez, supra at 407. The custody provisions of OCGA § 15-11-19 (a) were no part of the Court’s opinion. In the Interest of R. D. F., 266 Ga. 294, 296 (3) (466 SE2d 572) (1996), states in dicta that “failure to comply with OCGA § 15-11-26 (a), like the failure to comply with OCGA §§ 15-11-19 and 15-11-21, results in dismissal of the petition without prejudice,” (footnote omitted) id., but the reference is clearly only to the notice provisions of OCGA § 15-11-19 (c). The remark was made in the context of R. D. F.’s discussion of a violation of OCGA § 15-11-26 (a)’s requirements on the time in which a hearing must be held. OCGA § 15-11-19 (c) triggers the time requirements of OCGA § 15-11-21 (b). See J. D. M., supra at 286-288. R. D. F. cites Sanchez, and it was only OCGA § 15-11-19 (c) that was at issue in Sanchez. It is only a failure to comply with that notice requirement which Sanchez ruled mandated dismissal without prejudice.

C. W. claims prejudice by the failure to comply with OCGA § 15-11-19 (a) because some of the delinquent acts would not have occurred had it been followed. Immediate release to his mother or direct transport to juvenile or superior court would not change the fact that all delinquent acts were already complete. Because injury or prejudice to C. W. has not been shown by virtue of his being taken to the police station in violation of OCGA § 15-11-19 (a), as his rights were not jeopardized, and as his mother was with him, the court did not err in failing to deny the petition on this basis. See Barnes v. State, 178 Ga. App. 205, 207 (2) (342 SE2d 388) (1986).

C. W. also cites OCGA § 15-11-21 (b), contending the petition was filed more than 30 days after the incident and was therefore unlawful. “ ‘[OCGA § 15-11-21 (b)] has no application unless a juvenile is taken into custody [see OCGA § 15-11-17], not released under [OCGA § 15-11-19 (a) (1)], but instead [is] brought before the juvenile court or delivered to a detention or shelter care facility designated by the court [OCGA § 15-11-19 (a) (2)] and then released after an investigation under [OCGA § 15-11-21 (a)].’ [Cit.]” J. D. M., supra at 288 (2) (b). C. W. was not brought before the juvenile court under OCGA § 15-11-19 (a) (3), nor delivered to detention and then released pursu.ant to OCGA § 15-11-21 (a), but rather released under OCGA § 15-11-19 (a) (1), although imperfectly. “Consequently, there was no basis for application of the 30-day time requirement of OCGA § 15-11-21 (b). The juvenile court did not err in overruling the motion to dismiss the petition.” Id.

His contention that OCGA § 15-11-18.1 (b) was violated is also inapposite. The act of placing C. W. in the back of the patrol car and taking him to the police headquarters was not “[t]he imposition of interim control or detention” within the meaning of that Code section. It refers to control similar to a disposition of detention as contemplated in OCGA § 15-11-20 (a) (i.e., in a specific facility used for detention purposes), when such control is necessary during the period between accusation and hearing. The acts of which C. W. complains concern issues connected with initially taking the child into custody and are matters concerning the law of arrest. See OCGA § 15-11-17 (a) (2).

2. C. W. argues the court erred in adjudicating him delinquent for obstructing an officer by offering or doing violence. OCGA § 16-10-24 (b). The question is whether the evidence was sufficient to support the adjudication under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See In the Interest of R. A. W., 197 Ga. App. 225 (398 SE2d 261) (1990). The evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the court’s decision. Jackson v. Virginia, supra; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

The evidence supported the finding that C. W. obstructed Eitneier by threatening to beat Eitneier if he would remove the handcuffs and his badge and by stating he would kill Eitneier if he saw him on the street. Further, after he was placed in the patrol car and needed to be subdued from his attempts to break out of the car, he kicked at the officers.

C. W. argues Eitneier was not in lawful discharge of his duties because he had no right to take him into custody. To the contrary, Eitneier had been told by a subdivision resident that C. W. was driving his go-cart in a dangerous manner and on private yards, which his own observations in part confirmed. When Eitneier attempted to stop C. W. by signaling him with his siren so he could investigate and give a warning, C. W. unlawfully fled. OCGA § 40-6-395 (a). From that point, Eitneier was justified in apprehending C. W. and was lawfully discharging his duties when C. W. threatened him. The status of juvenile carries no privilege to threaten an officer. Nor does it shield a juvenile from reasonable police self-protection measures while conducting an investigation, such as handcuffing a belligerent suspect and confining him in the patrol car.

C. W. also contends he did not knowingly and wilfully obstruct Eitneier but rather that he believed Eitneier could not lawfully place him into custody, and that his statements to Officer Eitneier that he could not be arrested because of his juvenile status show this belief. C. W.’s belief is not the issue; it is not such a belief to which the phrase “knowingly and wilfully” refers. “The essential elements of OCGA § 16-10-24 (a) obstructing or hindering law enforcement officers are: that the act constituting obstruction or hindering was knowing and willful and that the officer was lawfully discharging his official duties. [Cit.]” Cline v. State, 221 Ga. App. 175 (471 SE2d 24) (1996). No reading of the evidence could accommodate a finding that C. W.’s offers to do violence to Eitneier, or his kicks, were not knowing and wilful.

3. C. W. contends the court erred by holding that he violated the law by riding his go-cart on the street. During a portion of the hearing in which C. W. questioned the police officer about what Code section he believed C. W. had violated, the court observed that driving a go-cart on a public highway is unlawful. This was not a ruling that he had committed such an act, and C. W. shows no harm resulting from the court’s observation. See Frost v. State, 200 Ga. App. 267, 271 (4) (407 SE2d 765) (1991).

On appeal, C. W. also argues that the officer did not have an articulable suspicion to make an investigatory stop. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Ignoring Rule 27 (a) (1), C. W. has not supplied a statement of how he preserved his enumerations of error. His motion to dismiss the charges was predicated on the procedural issues discussed above. “ Tt is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision. Grounds for reversal which may be considered on appeal are limited to those which were argued before the trial court.’ ... [Cit.]” McBride v. State, 213 Ga. App. 857, 858 (3) (c) (446 SE2d 193) (1994). Furthermore, his Terry argument is beyond the scope of the enumeration as presented for review. See Hasty v. State, 210 Ga. App. 722, 725 (1) (437 SE2d 638) (1993). Even were it properly raised, Eitneier had articulable suspicion to stop C. W. See Division 2.

Decided July 15, 1997

Reconsideration denied July 30, 1997

4. Finally, C. W. contends the court erred in ordering him detained without a separate dispositional hearing. Immediately after hearing arguments of counsel on the issue of delinquency, and adjudicating C. W. delinquent, the court directly pronounced that he would be detained in a boot camp for 180 days and be under the supervision of the Department of Children & Youth Services for a total of 24 months.

OCGA § 15-11-33 (c) provides for a bifurcated procedure in a delinquency case. When the adjudicatory stage has been completed, the court must conduct a dispositional hearing. The purpose of such, set out in the Code, was not accomplished in this case. Thus we must parrot In the Interest of J. E. H., 202 Ga. App. 29, 30 (413 SE2d 227) (1991): the trial court “held only one phase of the bifurcated procedure. ‘The juvenile had a right to a dispositional hearing in which he could have presented evidence relevant to the issue of disposition. We find that the juvenile code requires both an adjudicatory and dispositional hearing. Accordingly, the trial judge erred in making a disposition in the case in the absence of a dispositional hearing. The case is therefore remanded to the juvenile court for a dispositional hearing and a redetermination regarding the disposition of appellant’s case.’ [Cit.]”

The State contends C. W. waived the separate hearing by failing to request it but cites no authority. The Code requires the dispositional hearing. Id. Error based on the failure to hold it is neither harmless nor preserved only by objection. Its omission deprives a juvenile of the opportunity to present evidence relevant to the issue of how best to achieve the goal of “ ‘making the child a secure law-abiding member of society.’ [Cit.]” J. B. v. State of Ga., 139 Ga. App. 545, 547 (3) (228 SE2d 712) (1976). Compare Jefferson v. State, 205 Ga. App. 687, 688 (2) (423 SE2d 425) (1992) (the failure to provide a presentence hearing for an adult, as mandated by OCGA § 17-10-2, is neither harmless nor waived by failure to object).

Judgment affirmed in part and reversed in part, and remanded with direction.

McMurray, P. J., and Smith, J., concur.

Tony L. Axam, Eric E. Wyatt, for appellant.

Fredric D. Bright, District Attorney, Kenneth G. Jackson, for appellee.

John M. Clark, amicus curiae.

       The State’s delinquency petition also specified making a terroristic threat, OCGA § 16-11-37, as a delinquent act, but the court did not base its delinquency determination on that allegation.

       Our conclusion that the Supreme Court does not consider Sanchez to require dismissal for any violation of OCGA § 15-11-19’s other provisions, particularly the custody provisions of OCGA § 15-11-19 (a), is confirmed by the fact that when the police violate OCGA § 15-11-19 (a), the Supreme Court does not rule that the petition must be dismissed but analyzes whether a statement by the juvenile was made after a knowing and intelligent waiver of his rights. See Lattimore v. State, supra at 103-104 (2) (b). The Court has continued this analysis post-opinion R. D. F. See Barber v. State, 267 Ga. 521, 522 (2) (481 SE2d 813) (1997).

       In his reply brief C. W. argues these threats show he was not offering to do violence to Eitneier while he was performing his duties but rather threatening violence at some point in time after Eitneier was through with his duties. The argument is specious. The threats were made while Eitneier was performing his police duties; when the threatened violence might be carried out is irrelevant.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A0831.
    GEORGIA FIRST BANK v. MATHIS.
    (490 SE2d 439)
   Beasley, Judge.

This appeal follows our grant of Georgia First Bank’s application for interlocutory review of the trial court’s denial of its motion for summary judgment. OCGA § 5-6-34 (b).

In 1994, Mathis began plans to construct a family entertainment center to include such things as a go-cart track, arcade center, and concession building. He discussed the project with personnel at Georgia First Bank and the Georgia Mountains Regional Economic Development Center which would be involved if a loan was received through the 504 program of the federal Small Business Administration (“SBA”). On August 18, he submitted a financial statement to the bank.

The bank prepared a five-page commitment letter on November 28 outlining the terms under which the bank would provide financing for the project. Mathis was required to accept it by December 10 or it would be null and void. Mathis and a representative of the bank signed the letter’s acceptance page on December 1. The letter provided that the loan would be for a maximum amount of $630,000 plus fees during construction and up to $350,000 during amortization. Interest was stated to be two percent above the prime rate as published in the Wall Street Journal, to be paid during the construction period. The balance was to be amortized over no more than 15 years after construction was completed. Security for the loan was to be a first mortgage on all real property on which the project was located and a first mortgage on Mathis’ primary residence. Other provisions covered environmental assessment, zoning and licensing requirements, and fees for late payments. The loan was to be closed on or before February 15, 1995.

On December 12, a letter from the bank informed Mathis that his request for a loan was denied. The bank stated several reasons, including that Mathis had committed to giving the bank a first mortgage on his residence as collateral, but that the bank understood he then intended to sell the house with only a small amount of the proceeds to be contributed to the entertainment center project. The bank also stated it understood that another lending institution held a prior lien on the residence through a home equity credit line and would not subordinate that lien to Georgia First Bank’s interest. The bank also cited that changes in the project would delay SBA review and approval, postponing the project’s opening to an extent that threatened its economic viability. Further, the bank had learned that mortgage proceeds Mathis had planned to use for cost overruns and initial operating expenses had been pledged to another of Mathis’ businesses since the application process began, and that financial documents Mathis provided “still contain material inaccuracies.”

Mathis sued, contending that the commitment letter was a contract which the bank breached by its December 12 letter. Summary judgment for the bank is appropriate only if there is no genuine issue of material fact and the undisputed facts, viewed in the light most favorable to Mathis, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The bank contends that its commitment letter, although signed by both parties, does not constitute a contract and cannot be enforced. Whether it is a contract or not, the bank was empowered by its terms to cancel it.

The letter contained a section entitled “Cancellation” which set forth five bases on which the bank could cancel the commitment. The bank argues that three of these provided grounds for cancellation here. The first subsection does not apply. It requires that all applicable conditions have been met to the satisfaction of the bank or its counsel, “and the loan has not been closed by the closing date.” The bank contends this gives it unfettered discretion to cancel based on dissatisfaction. But the subsection imposes no requirement that specified conditions be met before the scheduled closing. Rather, it provides the bank may cancel if the loan conditions have not been met satisfactorily and the loan has not closed by the scheduled date. It does not give a right to cancel based on dissatisfaction before the closing date.

The second basis for cancellation refers to any representation of the borrower that is untrue or misleading. Although the bank asserts that Mathis’ failure to disclose the prior lien on his primary residence in the financial statement of August 18 was such a representation, the bank’s officer primarily responsible for the loan testified he knew of the lien before the bank issued the commitment letter. At that time the lien was at least $190,000, and Mathis had represented the value of his house as $600,000. As the bank issued the commitment letter knowing of the misrepresentation, and because Mathis had corrected the information, the August 18 representation is not a basis for cancellation.

The third ground for cancellation is any adverse change with respect to the project, the collateral, or other source of repayment. This did give the bank an appropriate ground for cancellation. Although the bank knew of the lien prior to issuing the commitment letter, Mathis had informed the bank that he believed the lienor would subordinate its position. After December 1, the bank learned that the holder of the prior lien on Mathis’ residénce would not fully subordinate its position for the new loan but would subordinate only a portion, retaining approximately $100,000 of the credit line as a prior lien. This amount was a substantial portion of the loan and, even if the value of Mathis’ residence was as he represented, would leave the bank unable to recoup the loan through foreclosure on the residence. The unavailability of full subordination adversely changed the value of the collateral.

Mathis argues that the bank’s position would be unchanged if he did sell his house and used the proceeds to eliminate the prior equity credit line, putting the remainder into the entertainment center project. But the commitment letter stated that the bank’s position would be secured not only by the real property at the site of the project, but also by the separate real property of Mathis’ residence. The absence of this security was material, even if it could only be given to the full value of the residence less $100,000. The development of this negative factor authorized the bank to exercise its right of cancellation.

The bank was not required to give Mathis until the closing date to convince the lienor to fully subordinate its existing lien. The cancellation clause specifically stated the bank could cancel if its collateral was adversely affected “at any time prior to closing.” As Mathis had supplied the bank with full financial information, it could judge whether he was in a position to pay the home equity credit line so as to provide the bank a clear first mortgage on his residence.

In denying summary judgment, the court ruled that jury issues remained as to whether any conditions set forth in the “Cancellation” section were met. Mathis does not contest that prior to the letter’s issuance he told the bank full subordination was possible. He points to the affidavit of the employee of the lienor as refuting the bank’s contentions concerning subordination and the amount of the prior lien, but it states only that on December 23, 1994, Mathis owed $129,109.53 on his home equity credit line. It does not reflect Mathis’ finances prior to December 12 and is silent as to the lienor’s position on subordination.

In sum, the evidence is uncontroverted that, after executing the commitment letter, the bank learned that full subordination would not be possible and the partial subordination would leave a material amount under a prior lien. As the bank was authorized, by the letter signed by both parties, to cancel the commitment based upon the letter’s “adverse change” terms, the court erred in denying summary judgment.

Judgment reversed.

McMurray, P. J, and Smith, J., concur.

Decided July 15, 1997

Reconsideration denied July 30, 1997

James D. Parks, for appellant.

Thompson, Fox, Chandler, Homans & Hicks, Joseph A. Homans, Cheryl H. Kelley, for appellee.

Long, Aldridge & Norman, W. Stell Huie, Martin, Snow, Grant & Napier, Edward J. Harrell, Robert A. Weber, amici curiae.


author: Blackburn, Judge.

text:
    A97A1090.
    LOVE v. THE STATE.
    (490 SE2d 527)
   Blackburn, Judge.

Jerry Love appeals his conviction of misdemeanor possession of marijuana. Love was indicted on charges of manufacture of marijuana, possession of a firearm by a convicted felon, and possession of marijuana. At trial, the jury found Love not guilty of manufacturing marijuana and possession of a firearm by a convicted felon, but found him guilty of possessing marijuana. Love contends that the trial court erred in denying his motion for directed verdict of acquittal and that the evidence was insufficient to support the verdict.

As a general rule, “a motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311) (1984). However, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990). Furthermore, “[o]n appeal of the overruling of a motion for directed verdict, an appellate court can consider all relevant evidence of record whether presented before or after the motion was made.” (Citations and punctuation omitted.) Jackson v. State, 222 Ga. App. 843, 848 (6) (476 SE2d 615) (1996).

At trial, Agent Bramlett with the Northeast Georgia Drug Task Force testified that a bag containing marijuana was recovered from the bathroom cabinet in the back corner of Jerry Love’s trailer. Love and his 16-year-old son lived in the trailer. Love’s son testified that he did not know anything about the marijuana in the bathroom. On appeal, Love argues that the evidence was insufficient to authorize his conviction because he was not the only one with access to the bathroom.

“The equal access defense is based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found.” (Citation and punctuation omitted.) Andrews v. State, 219 Ga. App. 808, 809 (466 SE2d 909) (1996).

“[I]t was undisputed that [Love] was the owner or lessee of the mobile home, raising a rebuttable presumption that the marijuana was his. [Love’s son] was the only other [person] who was shown to have access to the mobile home. It is clear, however, that the evidence that [Love’s son] had access to the premises does not demand a finding that the presumption as against [Love] had been rebutted. The presumption as against the owner or lessee is only rebutted by evidence that persons other than the defendant and members of his immediate household had equal opportunity to commit the crime. Since [Love’s son] was a member of his immediate household, it follows that evidence of [his] access would not be sufficient to rebut, as a matter of law, the initial presumption which arose against [Love] and that such evidence would not demand his acquittal under the equal access rule.” (Citations and punctuation omitted; emphasis in original.) Childers v. State, 218 Ga. App. 457, 458 (462 SE2d 412) (1995).

Furthermore, “[t]here is no requirement that the State must in every case prove that contraband was in the exclusive possession of one who is otherwise shown to be the owner or lessee of the premises. While evidence that the defendant-owner or lessee shared the premises with another does not demand a conviction, it may nevértheless authorize the jury, as the trior of fact, to find that the defendant was in at least joint possession of the contraband.” (Citation and punctuation omitted.) Id. at 458-459 (1).

As the jury was authorized to find that Love and his son were in joint constructive possession of the marijuana, Love’s conviction was supported by the evidence under the Jackson v. Virginia standard. See Garvey v. State, 176 Ga. App. 268, 275 (6) (335 SE2d 640) (1985) (evidence authorizing finding of joint constructive possession of contraband).

Decided July 30, 1997.

Douglas L. Henry, for appellant.

Michael H. Crawford, District Attorney, for appellee.

Judgment affirmed.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A1269.
    CAMMON v. THE STATE.
    (490 SE2d 529)
   Blackburn, Judge.

Rodney L. Cammon appeals his convictions of two violations of the Georgia Controlled Substances Act for possession of marijuana and possession of marijuana with the intent to distribute. Cammon contends he was denied his right to a fair trial because he was given prejudicial advice by his co-defendant’s counsel and because his character was improperly placed into evidence.

1. Cammon represented himself at trial. He does not allege any error with regard to his right to represent himself or with regard to ineffective assistance of counsel, but he contends that he was denied a fair trial after his co-defendant’s attorney discouraged him from taking the stand in his own defense. Cammon’s enumeration is without merit.

At the beginning of the trial, the co-defendant’s attorney informed Cammon and the trial court that his client’s interest was adverse to Cammon’s interest. After the State presented its case, the judge explained Cammon’s right to testify by stating “you are entitled to take the stand and be a witness and testify if you so desire. You also have the right not to take the stand and testify. If you take the stand and are sworn, then the District Attorney has the right to cross-examine you. If you do not take the stand and testify, obviously, he does not have the right to ask you any questions. If you do not take the stand and do not testify, then the jury — if you request me, will be instructed that they cannot consider that against you in any way whatsoever.” Cammon then responded that he did not want to take the stand and testify. At the hearing on his motion for new trial, Cammon testified that he asked his co-defendant’s lawyer whether he should testify, and the lawyer advised him “that it wouldn’t be best for [him] to testify, cause it would open back up evidence on [the co-defendant].” Cammon further testified that he realized the lawyer represented the co-defendant and that he did not have to follow the lawyer’s advice. On these facts, we find no error. See Livingston v. State, 221 Ga. App. 563, 570-571 (3) (472 SE2d 317) (1996) (defendant not denied right to testify in his own behalf when he never expressed desire to testify to court).

Decided July 30, 1997.

Gale & Henley, Teddy L. Henley, for appellant.

TambraP. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

2. In his second enumeration of error, Cammon asserts that his character was improperly placed into evidence. However, the record reflects that Cammon did not object at trial. By his failure to object, any error in allowing the testimony was waived. See Terry v. State, 224 Ga. App. 157, 160 (2) (480 SE2d 193) (1996). Cammon is not held to a different or more lenient standard in this regard merely because he elected to proceed pro se. One who knowingly elects to represent himself assumes full responsibility for complying with the substantive and procedural requirements of the law.

Judgment affirmed.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.

       The trial court directed a verdict as to the possession of drug-related objects.

       Although Cammon did not qualify for a court-appointed attorney, the trial court required an attorney to assist Cammon only in jury selection. Cammon is represented by counsel on appeal.


text:
    A97A1355.
    CALLOWAY v. THE STATE.
    (490 SE2d 521)
   Blackburn, Judge.

Willie Calloway was convicted in Troup County State Court of public drunkenness in violation of Section 35-1-25 of the City Code of LaGrange, Georgia. On appeal, he contends the evidence was insufficient to support the conviction, as the city ordinance was not offered into evidence and there was no proof of venue. The State failed to file an appellate brief as required by Court of Appeals Rule 26 (b).

On appeal of a criminal conviction, the evidence is viewed in the light most favorable to support the verdict, and the verdict will be upheld if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McGhee v. State, 223 Ga. App. 123, 124 (476 SE2d 853) (1996); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. Calloway contends there was insufficient evidence to prove a violation of the city ordinance because the State failed to introduce the ordinance into evidence.

It is well settled that although a municipal court “may take judicial notice of the ordinances of the city, defining offenses against the same[,] . . . [n]either the Supreme Court nor any other court than the municipal court can take judicial cognizance of a municipal ordinance.” (Citation and punctuation omitted.) Slaughter v. City of LaGrange, 60 Ga. App. 555 (1) (4 SE2d 410) (1939); see also Childers v. Richmond County, 266 Ga. 276, 277 (467 SE2d 176) (1996); Dudley v. State, 161 Ga. App. 310, 311 (1) (287 SE2d 763) (1982). “Where an ordinance of a municipality is relied upon, it must be pleaded and proved in the trial court.” (Citation and punctuation omitted.) State v. Fowler, 182 Ga. App. 897 (357 SE2d 329) (1987).

The burden is on the State to prove beyond a reasonable doubt each and every element of the offense charged. See Smith v. State, 217 Ga. App. 680 (1) (458 SE2d 704) (1995); OCGA § 16-1-5. As the State failed to prove the existence of the applicable ordinance, it also failed to establish what acts constituted a violation thereof. Absent proof of the ordinance, the essential elements of the alleged offense of public drunkenness cannot be shown. Accordingly, the evidence was insufficient to support the conviction, and the conviction must be reversed.

2. The State also failed to prove venue was proper in Troup County. Our Supreme Court has held that “venue must be established beyond a reasonable doubt. However, when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue.” (Citations omitted.) Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988).

The only witness at trial, Officer Kennedy of the LaGrange Police Department, testified that the incident in question occurred at “107 Morris Hill,” but did not testify that such address was located in Troup County or in the City of LaGrange. No other evidence was offered regarding venue. In Mega v. State, 220 Ga. App. 481 (469 SE2d 771) (1996), we reversed a conviction on similar facts. The only evidence of venue in Mega was the police officer’s testimony that the incident occurred at “ ‘Sweetwater Package Store, 2084 South Cobb Drive.’ ” Id. at 482 (1). We held that this Court may not take judicial notice that a street address lies within a particular county. We also held that the officer’s testimony that he was an investigator for the Cobb County Police Department was insufficient to allow the jury to infer that the address was located in Cobb County. Id.

For the reasons set forth in Mega, the evidence was insufficient to establish that venue was proper in Troup County.

Decided July 30, 1997.

Patterson & Patterson, Jackie G. Patterson, Yasma M. Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

       The accusation stated that the offense occurred in Troup County. However, the accusation does not constitute evidence. See Chambers v. State, 159 Ga. App. 669, 670 (2) (284 SE2d 682) (1981) (indictment not evidence).


text:
    A97A1517.
    ROUNDTREE v. THE STATE.
    (490 SE2d 526)
   Blackburn, Judge.

Kelvin Roundtree appeals his conviction of aggravated battery. Roundtree contends that the trial court erred in its recharge to the jury regarding the definition of malice as applied to aggravated battery.

Initially, we note that at trial Roundtree’s counsel stated that he had no objections to the trial court’s charge or to the trial court’s recharge. Accordingly, any objection to the recharge is waived. See Robertson v. State, 225 Ga. App. 389, 390 (2) (484 SE2d 18) (1997). Our review, therefore, is limited to whether the recharge contained a substantial error “which was harmful as a matter of law.” OCGA § 5-5-24 (c).

The trial court’s initial charge and recharge on aggravated battery and malice consisted of the following: “A person commits the offense of aggravated battery when he maliciously causes bodily harm to another by seriously disfiguring that person’s body or a member of that person’s body. I also charge you that the disfigurement of the victim need not be permanent as long as such disfigurement is what you, as the jurors, consider to be serious. And I also charge you in that regard that legal malice is not necessarily ill-will or hatred, but in a case of this nature, would be the unlawful intention to hit someone without justification, excuse or mitigation.”

Our Supreme Court has previously determined that with regard to aggravated battery “[a] person acts ‘maliciously’ when he acts intentionally and without justification or serious provocation.” (Emphasis in original.) Wade v. State, 258 Ga. 324, 330 (11) (d) (368 SE2d 482) (1988). This definition is substantially similar to the charge given in the instant case. Therefore, the instruction was not erroneous as a matter of law, and the trial court did not err in giving said charge.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Decided July 30, 1997.

M. Ross Becton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Christine S. Baker, Assistant District Attorney, for appellee.


text:
    A97A1566.
    McKENZIE v. THE STATE.
    (490 SE2d 522)
   Blackburn, Judge.

This is the second appearance of this case before this Court. In McKenzie v. State, 223 Ga. App. 108 (476 SE2d 868) (1996), we conditionally affirmed Raleigh McKenzie’s convictions of child molestation, incest, rape, and aggravated sexual battery. However, with respect to McKenzie’s contention that the trial court erred in upholding the State’s challenge to one of McKenzie’s peremptory strikes, we remanded such issue to the trial court for entry of written findings on whether such strike was racially motivated. Id. at 114 (3) (c). On remand, the trial court entered an order expressly finding that the strike was racially motivated, and McKenzie appeals from this order. For the reasons discussed below, we affirm.

1. Before addressing the merits of this case, it is necessary to discuss the relevant analytical framework and the appropriate standard of review. The United States Supreme Court has established a three-step test for evaluating challenges to peremptory strikes. “[0]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.” Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834, 839) (1995); see also Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986); Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992) (applying Batson to strikes by criminal defendants). The Supreme Court has held that “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible. . . . Unless a discriminatory intent is inherent in the [proponent’s] explanation, the reason offered will be deemed race neutral.” (Citation and punctuation omitted; emphasis supplied.) Purkett, supra. See also Gilbert v. State, 226 Ga. App. 230 (486 SE2d 48) (1997); Malone v. State, 225 Ga. App. 315 (484 SE2d 6) (1997).

However, although a trial judge must accept a facially race-neutral explanation for purposes of determining whether the proponent has satisfied his burden of production at stage two, this does not mean that the judge is bound to believe such explanation at stage three. That is, while the judge may find that a proffered explanation is race-neutral, he is not required, at stage three, to find that the proffered explanation was the actual reason for striking the juror. At stage three, “the persuasiveness of the [proffered] justification becomes relevant[,] . . . [and] implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett, supra.

The question thus arises as to what type of evidence is sufficient to enable the trial court to find that the actual reason for exercising the strike was discriminatory. In making its decision, the trial judge is to consider the totality of the circumstances. Turner v. State, 267 Ga. 149, 151 (476 SE2d 252) (1996). It will rarely be the case that a party will admit that his purpose in striking a juror was racially discriminatory. Accordingly, the trial court in most cases must infer discriminatory intent from circumstantial evidence. “The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons[] will permit the trier of fact to infer the ultimate fact of intentional discrimination, and ... no additional proof of discrimination is required” (Punctuation and footnote omitted; emphasis in original.) St. Mary’s Honor Center v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407, 418-419) (1993). In addition, the court may consider whether “similarly-situated members of another race were seated on the jury” or whether “the race-neutral explanation proffered by the strikes’ proponent is so implausible or fantastic that it renders the explanation pretextual.” Turner, supra at 151. The trial court may also consider “the demeanor of the attorney who exercises the challenge,” which is often the best evidence of the credibility of his proffered explanations. Hernandez v. New York, supra at 365.

In determining whether a strike was in fact racially motivated, the trial court sits as the trier of fact, and its findings “are entitled to great deference and will be affirmed unless clearly erroneous.” Turner, supra at 151; see also Smith v. State, 264 Ga. 449, 451 (448 SE2d 179) (1994). “[W]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” (Punctuation omitted.) Hernandez, supra at 369.

2. In this case, the evidence supports the trial court’s finding that the proffered reasons for McKenzie’s strike were pretextual, and that the strike was actually exercised for a racially discriminatory purpose. McKenzie utilized 11 of his 12 peremptory strikes to eliminate white female jurors. As we recognized in our prior opinion in this case, this “overwhelming use of peremptory strikes to exclude jurors of one race establishes a prima facie showing of discrimination.” (Punctuation omitted.) McKenzie, supra at 114 (3) (b).

When asked to explain her reasons for striking the juror at issue, McKenzie’s attorney gave a hodgepodge of reasons, stating that “[s]he had two daughters, 28-year-old — well, she had a 28-year-old daughter, she had no grandchildren, she had a brother-in-law who had been arrested for drugs. . . . She indicated she was a party to lawsuit regarding money. She had a 28-year-old daughter. ... I think the impetus there was . . . that she had a daughter.” However, in the motion for new trial hearing, the trial attorney testified that “I felt that I didn’t have a legitimate reason for excluding her.” She testified that, when asked to justify her strike, “I didn’t have what I would deem a legitimate reason to be able to express to the court as to why I had not — I didn’t want her on the jury. ... It was just a guttural reaction, that I felt she would not be beneficial, but I didn’t have a legitimate reason as to any of the questions that she may have answered. ... I didn’t feel my guttural reaction was a legitimate reason to exclude her and I did not have any other legitimate reasons to call to mind to be able to tell Judge Hunter.”

Thus, not only was the trial court authorized to disbelieve McKenzie’s proffered explanations for the strike, but McKenzie’s attorney actually admitted that her proffered reasons were false. After admitting that her original explanations were not genuine, the attorney failed to identify any specific reason for striking the juror, although she denied any discriminatory intent. However, a proponent may not rebut the opponent’s case “merely by denying that [she] had a discriminatory motive or affirming [her] good faith in making individual selections.” (Punctuation omitted.) Batson, supra at 98 (III) (C). Furthermore, the trial judge was authorized to consider the attorney’s admittedly false explanations as affecting the credibility of her claim that race was not an issue. Indeed, the attorney testified that “you’ve got to admit, when it was all said and done, it was a great jury to have for this particular case. I’ll let it be because either they were predominately black or they were predominately male.” Given the deferential standard of review applied to factual findings made by the trial judge, who alone has the opportunity to observe the witnesses’ testimony and evaluate their credibility, we cannot say that the trial judge’s finding of purposeful discrimination was clearly erroneous. See St. Mary’s, supra (disbelief of proffered explanations, together with establishment of prima facie case, sufficient to authorize factfinder to find discriminatory intent).

Decided July 30, 1997

3. McKenzie also contends that the trial court’s order was procedurally defective because the court failed to hold an evidentiary hearing upon remand, but rather simply entered its order based upon the existing record. This contention is without merit. In our previous opinion, we expressly stated that “this case is remanded solely to allow the trial court to enter written findings on the issue of racially discriminatory intent in the striking of [the juror]. The trial court may conduct a hearing if it deems one necessary or advisable.” (Emphasis supplied.) McKenzie, supra at 114 (3) (c). Thus, the necessity of a further hearing was expressly left to the trial court’s sole discretion.

Furthermore, a hearing was not required because the trial court had already heard all the evidence necessary to make its findings on the issue of discriminatory intent. The court heard from the parties at the time the State made its McCollum objection. The court heard further testimony and argument at the hearing on the motion for new trial, when McKenzie’s trial attorney was extensively questioned by his current appellate attorney. As the United States Supreme Court noted in St. Mary’s, “once the defendant has responded to the plaintiff’s prima facie case, the district court has before it all the evidence it needs to decide not [only] . . . whether defendant’s response is credible, but whether the defendant intentionally discriminated against the plaintiff. [Cit.]” (Punctuation omitted; emphasis in original.) St. Mary’s, supra, 125 LE2d at 424. Similarly, in this case, the trial court had before it all the evidence it needed to decide the issue and was not obligated to hold an additional hearing.

McKenzie’s contention that the trial court’s order was insufficient because it failed to make specific findings is also without merit. The court stated in its order that it had considered McKenzie’s explanations, his attorney’s demeanor, a review of the record, and the court’s independent recollection of the proceedings and specifically found that the strike was racially motivated. The court further noted that “defense counsels’ explanations for their strikes were subjective, vague, not based on [the juror’s] answers on voir dire, and not neutrally applied.”

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Drew Findling, Elizabeth L. Rankin, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

        St. Mary’s dealt with employment discrimination under Title VII of the Civil Rights Act of 1964. However, the reasoning of St. Mary’s is applicable to Batson and McCollum cases, as the Supreme Court has relied on Title VII cases in constructing and applying its burden-shifting analysis in such cases. See Batson, supra at 94 (n. 18), 98 (n. 21); Purkett, supra at 839; Hernandez v. New York, 500 U. S. 352, 359, 364-365 (111 SC 1859, 114 LE2d 395) (1991). Indeed, McKenzie himself cites St. Mary’s in his appellate brief.


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A97A0037.
    PULLEN et al. v. OXFORD et al.
    (490 SE2d 478)
   Smith, Judge.

In this slip and fall case, Sally Pullen and her husband brought suit against I. D. Oxford and Oxford Flea Market to recover for injuries incurred by Pullen when she stepped off a sidewalk while exiting the flea market. The trial court granted Oxford’s motion for summary judgment, and this appeal ensued. Because we conclude that the trial court correctly granted summary judgment to Oxford, we affirm.

The record shows that Pullen had visited the flea market many times, but had been to the “new side” only once before. The paving ended with the sidewalk, and Pullen claimed that soil around the sidewalk had been washed away, causing a gully containing rocks and cement. She stepped on a rock and twisted her ankle, causing her to fall. Her husband stepped off the sidewalk without incident.

1. The Pullens first assert that the trial court erred in denying their motion to dismiss Oxford’s motion for summary judgment as untimely. We do not agree.

USCR 6.6 provides that “[mjotions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.” Although Oxford’s motion for summary judgment was filed somewhat later than is usual, the record shows that USCR 6.6 was not violated, and the trial court so found. No continuance of the trial was sought or granted because of the motion for summary judgment; “[ijnstead, the trial was obviated by the grant of appellees’ motion for summary judgment, which was filed more than 30 days before the scheduled date of trial.” Henrickson v. Pain Control &c. Inst., 205 Ga. App. 843, 845 (3) (424 SE2d 27) (1992), rev’d on other grounds 263 Ga. 331 (434 SE2d 51) (1993). The trial court did not err in denying the Pullens’ motion.

2. The Pullens contend the trial court erred in finding their claim of negligence per se without merit. They contend that Oxford was negligent per se in that the dropoff from the sidewalk to the surface below was ten inches, violating the Georgia Standard Building Code (1991 ed.), § 1108.3.1, which provides in pertinent part that the height of “risers” shall not exceed 7 3/4 inches. But this ignores the clear language of the Code defining the structural elements in ways that make clear that these specifications have no application here.

Section 1108.3.1 is found in the Code chapter captioned “Means of Egress.” It provides that “[xn]eans of egress shall consist of continuous and unobstructed paths of travel to the exterior of a building” (Emphasis supplied.) Standard Building Code, § 1101.1.2. Further, although in her brief Pullen refers to the dropoff from the sidewalk curb as a “riser,” it cannot reasonably be so construed when the only references to “risers” in the Code are to those found “in stairs.” Standard Building Code at § 1108.3.1. The curb is not part of stairs. Neither is the sidewalk a “court,” as urged by the dissent.

As long ago as 1848, in Persons v. Hight, 4 Ga. 474, 485-486, our Supreme Court held that “[t]he current of authority in this country, at least at the present day, is in favor of reading [statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.” In Earth Mgmt. v. Heard County, 248 Ga. 442 (283 SE2d 455) (1981), the Supreme Court held that ‘‘[t]his principle remains intact today.” Id. at 444. The trial court correctly found that Pullen’s “accident did not take place on the ‘paths of travel to the exterior of a building,’ ” and that the specifications in the Code did not apply. The Pullens have presented no evidence that any other statute, regulation, or ordinance was violated, and their allegation of negligence per se must therefore fail.

3. The Pullens maintain that other jury issues remain for adjudication regarding whether Oxford was negligent. We do not agree.

Summary judgment is proper when the moving party shows that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). In this case no material issue of fact remains for jury adjudication; the facts are not in dispute. As a defendant, Oxford may prevail on its motion if it shows an absence of evidence to support at least one essential element of Pullen’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). To recover, Pullen must show that she fulfilled her duty to exercise ordinary care and avoid those things that might harm her. Minor v. Super Discount Markets, 211 Ga. App. 123, 124-125 (438 SE2d 384) (1993). Because Oxford showed that she did not do so, summary judgment was appropriate.

Even if erosion had caused the dropoff from the edge of the curb to become steep and had exposed an uneven surface, this constituted a static condition. Pullen admitted that nothing interfered with her ability to see it or distracted her from looking. The condition was open and obvious. Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147) (1992). It is apparent from Pullen’s deposition testimony that in stepping off the curb, she relied upon her expectations rather than on her senses. Had she looked, she could easily have seen that the dropoff was steeper and more treacherous than she was expecting it to be. In failing to do so, she failed to exercise ordinary care for her own safety. Because Oxford showed the absence of this essential element of Pullen’s case, the trial court correctly granted its motion for summary judgment.

Judgment affirmed.

Andrews, C. J, Birdsong, P. J., Ruffin, J., and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent because I cannot go along with the majority’s holding that a private sidewalk, constructed to accommodate entrance to and from a retail store, is not an area covered by Georgia’s Standard Building Code (1991 ed.). I also believe that a majority of this Court has once again wrongly usurped the traditional role of the jury in deciding the issue of proximate cause. Sally Pullen’s deposition testimony that she did not see the “washed out” furrow at the sidewalk’s “dirt” base until it was too late for her to avoid the hazard — as well as her testimony that she “was looking where [she] was going” just before she fell — raises genuine issues of material fact as to whether Mrs. Pullen exercised ordinary care for her own safety.

Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), the evidence reveals the following: Sally Pullen, while visiting a “new side” at Oxford’s flea market, broke her ankle after she stepped off a sidewalk and into a rubble-filled “gully” that had “washed out” at the sidewalk’s “dirt” base. The sidewalk area where Mrs. Pullen fell “ended right at the end of [one of the flea market’s new] buildings.” Although Mrs. Pullen “was looking where [she] was going,” her perspective before reaching the edge of the sidewalk did not provide a view of the hazard at the sidewalk’s base. Mrs. Pullen thus did not see the “washed out” furrow until her foot was in mid-air, falling toward a sunken cluster of “cement and rocks. . . .” Because she had once before visited the flea market’s “new side,” Mrs. Pullen was “expecting [the dropoff] to be — like it was before.” But when she “stepped off, it was too late. There was no stepping back.” Mrs. Pullen’s left foot hit a rock and twisted. Her ankle cracked.

Mr. and Mrs. Pullen later discovered that the 10-inch drop from the sidewalk’s edge to the ground where Mrs. Pullen fell was 2 1/4 inches higher than the maximum height prescribed for “Treads and Risers” in the “MEANS OF EGRESS” chapter of the Standard Building Code (1991 ed.). This provision, Standard Building Code § 1108.3.1, provides that “[t]he height of [any] riser shall not exceed 7 3/4 inches. . . .”

Negligence Per Se. “ Tn determining whether the violation of a statute[, regulation] or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against. [Rhodes v. Baker, 116 Ga. App. 157, 159 (2), 160 (b) (156 SE2d 545).]’ [Potts v. Fidelity Fruit &c. Co., 165 Ga. App. 546, 547 (301 SE2d 903)].” Horney v. Panter, 204 Ga. App. 474, 475 (2), 476 (420 SE2d 8). The first step pf this test is provided in the Standard Building Code’s preface. “The purpose of the Standard Building Code is to protect the public’s life, health and welfare in the built environment.” Standard Building Code (1991 ed.), p. iii. With this perspective, I do not believe it reasonable to say that the sidewalk area where Mrs. Pullen fell is not part of “the built environment” at Oxford’s flea market. I believe that any sensible and intelligent reading of the Standard Budding Code, refraining from construing its provisions in a way that renders them meaningless, brings Mrs. Pullen within the class of persons the Building Code was intended to protect and her injuries within the harm Building Code, § 1108.3.1 was intended to guard against. See Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, 266 Ga. 393, 399 (3) (467 SE2d 875).

In the case sub judice, the trial court found that Mrs. Pullen does not fall within the class of persons Standard Building Code, § 1108.3.1 was intended to protect because the area where she fell is not a “means of egress” as defined by Standard Building Code, § 1101.1.2 (1991 ed.). The trial court reasoned in its summary judgment order as follows: “Section 1108.3.1 of the building code is found in the chapter entitled ‘Means of Egress.’ The scope of ‘means of egress’ is to ‘consist of continuous and unobstructed [paths] of travel to the exterior of a building.’ State Building Code, § 1101.1.2 (emphasis added). The record reveals that prior to her fall, [Mrs.] Pullen was traversing the sidewalk in front of the flea market buildings. Her accident did not take place on the ‘paths of travel to the exterior of a building. ... A plain reading of the [1991 Building Code] chapter [entitled, MEANS OF EGRESS,] indicates that the ordinances therein are intended to protect people exiting buildings. As such, [Mrs.] Pullen is not within the class of intended protected people [and a] negligence per se analysis is inappropriate. . . .” The majority adopts similar logic, concluding that Standard Building Code,' § 1108.3.1 limits “means of egress” to “risers” found in stairs which (as quoted from the majority opinion) are “ ‘continuous and unobstructed paths of travel to the exterior of a building’ (Emphasis supplied.) Standard Building Code, § 1101.1.2.”

I believe the trial court and the majority too narrowly define the class of persons Building Code, § 1108.3.1 was intended to protect. This weakness is marked by the trial court’s oversight and the majority’s disregard of the Building Code’s “DEFINITIONS” chapter, Standard Building Code, § 202 (1991 ed.). This section provides as follows: “MEANS OF EGRESS — a continuous and unobstructed way of exit travel from any point in a building or structure to a public way, consisting of three separate and distinct parts: (1) the way of exit access, (2) the exit, and (3) the way of exit discharge. A means of egress comprises the vertical and horizontal ways of travel and shall include the intervening room space, doors, corridors, passageways, balconies, stairs, ramps, enclosures, lobbies, escalators, horizontal exits, courts and yards.” Ga. 1991 Building Code, § 202 at p. 29.

Focusing on § 202’s language that “means of egress” include “the way of exit discharge” as well as “vertical and horizontal ways of travel [which] shall include . . . courts and yards,” I believe that the sidewalk area where Mrs. Pullen fell is a “means of egress” and that Mrs. Pullen is within the class of persons Standard Building Code, § 1108.3.1 was intended to protect. The sidewalk where Mrs. Pullen fell is not an open sidewalk contiguous to public land. See Standard Building Code, § 1108.3.1, exception at p. 236. It is (presumably) a concrete slab or “court” on private property, running along the front of Oxford’s place of business, and ending “right at the end of [one of the flea market’s new] buildings.” And more significantly, the ledge of the sidewalk where Mrs. Pullen fell is physically a vertical “riser” providing direct egress to and from Oxford’s adjoining building. Under these circumstances, I believe that the area where Mrs. Pullen fell is a “means of egress” as defined by the Standard Building Code and that the alleged ten-inch drop from the sidewalk where Mrs. Pullen fell violated Standard Building Code, § 1108.3.l’s provision that “[t]he height of [any such] riser shall not exceed 7 3/4 inches. . . .” Saying otherwise, in my view, renders meaningless the Standard Building Code’s endeavor to regulate common ways of passage to and from buildings in the interest of the public’s welfare and safety. See Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, 266 Ga. 393, 399 (3), supra.

I believe that genuine issues of material fact remain as to whether the rise from the sidewalk where Mrs. Pullen fell exceeded the safety standards prescribed in the Standard Building Code (1991 ed.).

Proximate Cause. “ £[T]he rule in relation to a ‘static condition’ as being that the basis of liability of an owner to an invitee who is injured[, as is the circumstance in the case sub judice,] is the superior knowledge of the owner of the existence of a condition that could subject the invitee to an unreasonable risk of injury. (Cit.)’ Inglett v. Winn-Dixie, Greenville, 168 Ga. App. 192, 194 (308 SE2d 587) (1983).” Robinson v. Western Intl. Hotels Co., 170 Ga. App. 812, 813 (1) (318 SE2d 235). In the case sub judice, Oxford neither contests that Mrs. Pullen was an invitee, nor contends that the “washed out” furrow where she fell was not dangerous. Oxford does not even argue that he lacked knowledge that this area was “washed out” and presented a hazardous condition to his patrons. Oxford asserts only that “[t]his is the case of the proverbial ‘you should look before you leap.’ ” The majority opines similarly, concluding that Mrs. Pullen should have peeked over and inspected the base of the sidewalk before she stepped onto the ground. Although a jury may adopt such a view, I do not think it is reasonable to say — as a matter of law — that invitees must keep constant vigil for dangers that are not openly apparent upon casual visual examination. And to this end, I believe Mrs. Pullen’s deposition testimony belies summary adjudication that her own carelessness was the sole proximate cause of her injuries. Such questions are for the jury except in plain, palpable and indisputable cases. See Atlanta Ob. & Gyn. Group, P.A. v. Coleman, 260 Ga. 569, 570 (398 SE2d 16).

During Mrs. Pullen’s deposition in the case sub judice, Oxford’s attorney asked, “So, prior to your stepping off the edge of the sidewalk you did not look to where you were going?” Mrs. Pullen responded, “Yes, I was looking where I was going.” Mrs. Pullen explained that she was “expecting [the dropoff] to be — like it was before[, when she visited the ‘new side’ of the flea market on a prior occasion].” I believe that this testimony, along with the undisputed assertion that the “washed out” furrow was ten inches below the sidewalk’s ledge, would authorize a jury’s finding that Mrs. Pullen’s view of the hazard was obscured until it was too late for her to avoid.

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

Decided July 16, 1997

Reconsideration dismissed July 31, 1997

Salter & Shook, Mitchell M. Shook, Jason A. Craig, for appellants.

Newton, Smith, Durden, Kaufold & Rice, Howard C. Kaufold, Jr., for appellees.

       The Code defines an “exit court” as “an outside space with building walls on three or more sides and open to the sky.” Standard Building Code at p. 24.

       Oxford admits that the Standard Building Code (1991 ed.) was adopted in the jurisdiction where Mrs. Pullen was injured. See Standard Building Code (1991 ed.), preface at p. iii.

       The majority skews this statement by stating (and I quote from the majority opinion) that I think “the sidewalk [area where Mrs. Pullen fell is] a ‘court,’ ” or an “ ‘exit court’ ” within the Standard Building Code’s strict meaning of that term. This is not my view. I simply use the term “court” to dismiss the majority’s narrow view that “means of egress” risers are limited to “those [areas] found in stairs.”


author: Smith, Judge.

text:
    A97A0128.
    QUINTANILLA v. RATHUR.
    (490 SE2d 471)
   Smith, Judge.

Appellee Baber Rathur, M.D. brought two separate actions against Pablo Quintanilla, M.D., seeking recovery on a promissory note in one action and on a lease agreement in the second. After consolidation, the parties filed cross-motions for summary judgment, and Rathur prevailed. The trial court then calculated damages and entered judgment in favor of Rathur.

Quintanilla appeals, contending that he was insulated from liability by a default provision in a contemporaneously executed sale agreement, that the transaction as a whole was modified by the parties’ mutual departure, that a dispute of fact remained as to the amount of damages owing under the agreements, and that attorney fees were improperly awarded. Quintanilla’s arguments concerning the contract terms are without merit, but we agree that the amount of damages remains in dispute and that insufficient notice was given of the intent to seek attorney fees pursuant to OCGA § 13-1-11.

This action arose out of an agreement between two longtime friends and business associates. In late 1990, Rathur approached Quintanilla for the first time with a proposal that Quintanilla purchase a medical practice from Rathur. Quintanilla was cautiously receptive, because of Rathur’s representations that the practice was historically profitable and growth-oriented. Rathur enlisted his financial advisor to explain to Quintanilla the medical office’s secure financial condition. Quintanilla contends by affidavit that he was influenced by Rathur’s position as his friend and employer and that he relied on Rathur’s representations and those of Rathur’s financial advisor in deciding to purchase the practice.

On December 14, 1990, the parties executed three documents: (1) a sale and purchase agreement, providing for the sale of all office and medical equipment and the goodwill of the medical practice; (2) a promissory note, setting out the terms of repayment in specific reference to the terms of the sale agreement; .and (3) a lease agreement, providing for the conditions of occupancy of the medical office itself, including provisions for allocation of utilities and “base rental.” Each agreement contained a separate default provision.

The default provision in the sale and purchase agreement provided: “If this agreement is not consummated in accordance with the terms and conditions of this agreement on account of default by either party, the non-defaulting party may, at his option: (a) terminate this agreement by giving written notice of such termination to the other, whereupon all rights, duties and obligations of all parties hereunder shall expire and this agreement shall in all respects become null and void, or (b) exercise such rights and remedies as may be provided for or allowed by law or in equity, including, without limitation, the right to seek and obtain specific performance of this agreement; provided, however, neither seller nor purchaser shall have right to seek or obtain damages from the other, except attorney fees for bringing any action under this provision.” (Emphasis supplied.) Quintanilla’s affidavit recites that he was shown the default provision in the sale and purchase agreement by Rathur and that he understood it to mean that “neither party would sue the other for money damages if the agreement was breached.” He further understood this clause to mean that he could return the practice at any time to Rathur without suit being filed and without penalty “if our agreement did not work out.” The promissory note, however, contained an acceleration clause, and the lease provided for a number of remedies upon default, including acceleration of the amounts due.

The practice was unsuccessful from the start. Over the first three years, Quintanilla made only sporadic payments on the promissory note and never paid more than the base rent due under the lease. Quintanilla claims that during this time Rathur assured him that the financial problems could be “worked out.” But on September 13, 1993, Rathur’s attorney sent a letter informing Quintanilla that, without immediate payment of all outstanding arrearages, she “would advise Rathur to take action.” Ultimately, Rathur filed these claims.

1. Quintanilla first argues that the restrictive default provision in the sale agreement and Rathur’s oral assurances regarding its effect supersede the default provisions in the promissory note and lease agreement. The trial court found that “an ambiguity exists” with regard to the default provision in the sale agreement, observed that “to the extent there is any genuine conflict between these provisions . . . the first provision prevails,” but found that the two provisions are not contradictory. Observing that “in seeking to determine the true intent of the parties, the court should consider the entirety of the agreement and not reach a conclusion which would render the parties’ actions an absurdity,” the trial court concluded that the parties’ true intention was to prohibit the collection of consequential damages other than attorney fees. While we agree with the trial court’s ultimate conclusion that summary judgment on the issue of liability was proper, we do so on a slightly different basis.

A court may not declare a contract provision ambiguous until it applies the relevant rules of construction. Richard Haney Ford v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 316 (1) (b) (461 SE2d 282) (1995). In this case, application of the rules of construction reveals that the default provision in the sale agreement is unambiguous, but inapplicable by its terms to the promissory note or lease.

First, we note that an agreement may consist of multiple documents, and when instruments are executed at the same time in the course of a single transaction, they should be read and construed together. OCGA § 24-6-3 (a); Duke v. KHD Deutz &c. Corp., 221 Ga. App. 452, 453 (471 SE2d 537) (1996). Second, a contract must be interpreted to give the greatest effect possible to all provisions rather than to leave a part of the contract unreasonable or of no effect. Roland Well Drilling v. Murawski, 193 Ga. App. 38, 40 (386 SE2d 872) (1989). “One of the most fundamental rules of construction is that a court should, if possible, construe a contract so as not to render any of its provisions meaningless. [Cit.]” Altama Delta Corp. v. Howell, 225 Ga. App. 78, 79 (1) (483 SE2d 127) (1997).

All three documents at issue here were executed during the September meeting consummating the sale between the two parties, and each refers to the others. As a result, they must be construed together in a manner that avoids surplusage and gives effect to all relevant provisions.

Interpreting the three relevant documents together reveals no ambiguity or conflict. The separate default provisions contained in the documents do not conflict because each provision, by its terms, applies only to the document in which it appears. A strict reading of the sale agreement reveals that a default under its terms occurs only where the actions necessary to consummate the sale itself are not undertaken. The sale agreement recites simply that it requires a purchase, sale, and execution of a promissory note containing certain terms. It provides for the maintenance of records and the proration of expenses until “the day of closing.” Default occurs only “if [the] agreement is not consummated in accordance with [its] terms and conditions.” Rathur, as the “non-defaulting party” under the default provision in the sale agreement, had the option of bringing an action “under this provision” which would have invoked the damages limitation. But Rathur never sought enforcement of the sale agreement; he sought only recovery on the promissory note and on the lease agreement.

When the language of a contract is plain and unambiguous, the court must afford it its literal meaning, despite a party’s contention that he had a different understanding of its meaning. Cotton States Mut. Ins. Co. v. Smelcer, 212 Ga. App. 376 (441 SE2d 788) (1994). Interpreting the default provision in the sale agreement in this manner, we find it inapplicable to a default arising from breach of the payment terms of the promissory note or lease agreement, rather than the sale agreement itself. The interpretation that Quintanilla suggests would render the default provisions in the promissory note and lease agreement meaningless and absurd, as the trial court recognized. Such a construction would require the parties to intend that the buyer of the business could operate it (as happened) for almost three years, make only two of the monthly installments on the purchase price, use all the equipment and furnishings of the medical office for that period, serve or not serve the patients, build the medical practice or allow it to disintegrate, and then walk away from the deal by paying only the seller’s attorney fees.

Because no ambiguity exists, it was unnecessary for the trial court to reach the issue of admissibility of parol evidence, as urged by Quintanilla, to show Quintanilla’s understanding of the default provisions. Because it is undisputed that the sale itself was consummated, the trial court correctly held that the default provision in the sale agreement did not govern a default under the promissory note or lease. A grant of summary judgment will be affirmed if it is right for any reason. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991); Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993).

2. Quintanilla also contends that the parties’ subsequent conduct amounted to a mutual departure from the payment terms of the promissory note and lease agreement. Rathur acknowledges continually accepting lower and sporadic payments contrary to the terms of both agreements. We conclude, however, that no mutual departure occurred under the facts presented here.

While the law generally prevents one party from waiving a binding provision in a contract for the benefit of another, the conduct of the parties may be sufficient to alter the terms of an original agreement when there is evidence of a mutual, rather than unilateral, intention to depart from or disregard such terms. OCGA § 13-4-4; Hill v. Federal Employees Credit Union, 193 Ga. App. 44, 46 (2) (c) (386 SE2d 874) (1989). Quintanilla acknowledges he made only two payments on the promissory note in the first year. While he paid an amount designated as “base rental” under paragraph 2 of the lease agreement, Quintanilla never made any of the monthly payments designated as “additional rent” under paragraph 4 (b) of the lease. He contends that Rathur’s acceptance of his failure to make payments on both the note and the lease amounts to a mutual departure, and therefore Rathur was not authorized to institute default proceedings. Vaughan v. Wrenn Bros., Inc., 163 Ga. App. 383, 384 (294 SE2d 609) (1982). We disagree.

This issue was addressed in Lewis v. C & S Nat. Bank, 174 Ga. App. 847, 848 (2) (332 SE2d 11) (1985). There, as here, the debtor contended that the creditor had effected a departure from the terms of the note sufficient to forbid foreclosure. This Court held that the earlier acceptance of some late and irregular payments did not demonstrate a mutual departure where many payments were missed altogether: “As a general rule, evidence of acceptance by a creditor of repeated, late, irregular payments from a debtor creates a factual question as to the formation of a quasi new agreement. [Cits.] However, the evidence in this case shows without dispute that [the debtor] was not merely late and irregular in making his payments but had failed altogether to make . . . [some] monthly installment payments which had become due as of the time the notice of foreclosure was published. Under these circumstances, [the lender] clearly was entitled pursuant to the terms of the security agreement to accelerate the entire balance due and to institute foreclosure proceedings. [Cits.]” Id. See also Evans v. Merrill Lynch &c. Svcs., 213 Ga. App. 808, 810-811 (5) (446 SE2d 215) (1994) (while late and partial payments may create a factual question as to the formation of a quasi new agreement, missing several payments altogether authorizes foreclosure).

In the case at bar, it is undisputed that, while Quintanilla made a number of late and partial payments which were accepted by Rathur, he failed to make approximately 20 payments under the promissory note and failed altogether to pay the “additional rent” due under the lease. While Rathur apparently told Quintanilla that the financial problems could be “worked out,” nowhere does the record suggest that Rathur meant to forego payment of any monthly installment altogether. Given the lack of evidence supporting Quintanilla’s contention that Rathur agreed to non-payment, as opposed to late payment, we find that Quintanilla failed to show a subsequent mutual departure from the terms of the agreements, and the trial court properly concluded that Quintanilla was obligated for the sums due.

3. Quintanilla next asserts that Rathur’s acceptance of lesser payments over the life of the lease agreement constituted an accord and satisfaction. The facts of this case, however, do not satisfy the requisite elements of an accord and satisfaction.

An accord and satisfaction exists where (1) there is a bona fide dispute as to the amount due under the agreement; (2) the dispute is between the parties and not limited to the mind of the debtor; and (3) the dispute existed prior to the debtor’s tender of any amount less than that due under the agreement. OCGA § 13-4-103 (b) (1); Treadwell v. Treadwell, 218 Ga. App. 823, 825-826 (1) (463 SE2d 497) (1995). The court may also find an accord and satisfaction where there is an “independent agreement” between the parties stipulating that the acceptance of a lesser amount satisfies the entire debt. OCGA § 13-4-103 (b) (2); Treadwell, supra at 826. Quintanilla failed to present evidence sufficient to prevail on either basis.

The record reveals no evidence of a bona fide dispute as to the debt owed in this case. Quintanilla has made no effort below or on appeal to show that he contested the total amount due under the lease agreement. In addition, even if a legitimate dispute existed, it clearly was not brought to Rathur’s attention while Quintanilla made payments for three years.

Nor does the record contain evidence suggesting that Rathur and Quintanilla ever reached an “independent agreement” to pay a lesser sum under the lease. In this context, an accord and satisfaction is a de novo contract valid only where there is a “meeting of the minds” as to the release of the debtor’s liability. Derosa v. Shiah, 205 Ga. App. 106, 108 (421 SE2d 718) (1992). While Quintanilla presented evidence that he paid less than was required, no evidence exists to suggest that Rathur agreed to payment of a lesser amount on anything other than a temporary basis. The question of accord and satisfaction is generally one for the jury, but when there is no genuine issue of material fact, summary adjudication is appropriate. Habachy v. Ga. Health Group, P.C., 207 Ga. App. 288, 289 (427 SE2d 808) (1993).

4. Despite our conclusion that the default provisions in the promissory note and lease are valid and enforceable, this case must be reversed because of an improper determination of damages. The trial judge, over Quintanilla’s objection, entered judgment based on a schedule presented by Rathur summarizing the amount due under the promissory note and the lease agreement. Quintanilla asserts that his affidavit created a dispute of fact as to the actual amounts owed on both the note and the lease, and therefore summary judgment for Rathur on the issue of damages was improper. We agree for two reasons.

First, while the amount due under the promissory note was liquidated, there is a genuine dispute of fact as to the number of payments made by Quintanilla over the life of the agreement. Quintanilla claims to have made two payments during the first year of the promissory note, and it appears that the calculations supporting the trial court’s judgment reflect only one. On .summary judgment, statements not amounting to legal conclusions made by a party with personal knowledge of the facts are not conclusory and are admissible to create a genuine issue for trial. See OCGA § 9-11-56 (e).

Second, the parties agree that the award of damages under the lease agreement was inaccurate. The provisions in the lease required payment of a “base rental” and an “additional rent” to be calculated during the life of the lease. Under the terms of the agreement this amount is, as conceded by the parties, equal to $26,255, not $26,828.81 as the trial court found. While the trial court correctly granted partial summary judgment on the issue of liability, summary judgment on the issue of damages was improper.

5. Finally, Quintanilla correctly argues that Rathur failed to meet the statutory notice requirement for an award of attorney fees. OCGA § 13-1-11 (a) (3) provides that a party seeking attorney fees in any action must provide the opposing party with at least ten days’ notice of the intent to do so. Quintanilla correctly notes that Rathur’s demand letter contained no mention of attorney fees. Rathur contends that the references in the demand letter to the promissory note and lease agreement are nevertheless in substantial compliance with the terms of OCGA § 13-1-11. We disagree.

The Supreme Court of Georgia in Gen. Elec. Credit Corp. v. Brooks, 242 Ga. 109, 118 (249 SE2d 596) (1978), held that “substantial compliance” with the notice provisions in OCGA § 13-1-11 (formerly Ga. Code Ann. § 20-506) is sufficient, and mere technical errors in the wording of such a notice will not defeat a claim for attorney fees. However, the court also listed the “matters of substance” as to which actual compliance is required, including notice “that the provisions relative to payment of attorney fees in addition to principal and interest will be enforced.” Id. at 119. Unlike the lender’s letter in Gen. Electric, Rathur’s letter contained absolutely no reference to the attorney fees provision in the promissory note or, indeed, to any claim for attorney fees. And plaintiff did not remedy this deficiency via his complaint. See, e.g., Third Century v. Morgan, 187 Ga. App. 718, 721 (3) (371 SE2d 262) (1988). As a result, the trial court erred in awarding attorney fees.

Decided July 16, 1997

Reconsideration denied July 31, 1997.

Wheeler & Watson, James A. Watson, Alexander P. Levorse, for appellant.

Stephen H. DeBaun, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Beasley, J., concur.

       But no evidence appears on the record that Quintanilla ever attempted to rescind the sale agreement, tender back the practice assets, or otherwise “return” the medical practice during the three years he operated it.

       We note that Rathur provided notice in the form of a demand letter stating his intention to rely on the exact terms of the agreement.

       As the total amount of the debt due under the contracts was fixed, certain and ascertainable, the claims are not rendered unliquidated by our holding that the amount allegedly paid to set off the total is factually in dispute. Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 255 (342 SE2d 694) (1986) (claim not rendered unliquidated though party at summary judgment created factual question as to the total reduction of the total debt owed).

       Since the issue may be reached on remand, we note that the trial judge’s assessment of prejudgment interest at a rate of 7 1/2 percent per annum was improper. Generally speaking, a claimant is entitled to an award of prejudgment interest at a rate of 7 percent per annum from the date due until the date of recovery on any liquidated debt. OCGA §§ 7-4-2; 7-4-15; Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 892 (1) (360 SE2d 425) (1987). A deviation from the statutory percentage is authorized only where a written agreement specifies the rate. See Atlantic States Constr. v. Beavers, 169 Ga. App. 584, 591 (7) (314 SE2d 245) (1984). Here, no authority is cited to support the 7 1/2 percent awarded to Rathur, nor is any stipulation apparent from the contracts themselves. Though this case turns on the amount of damages actually awarded, any ultimate reassessment of prejudgment interest must be made in accordance with the controlling authority.