author: Andrews, Presiding Judge.

text:
    A02A0675.
    WILLIAMS v. THE STATE.
    (568 SE2d 761)
   Andrews, Presiding Judge.

Troy Truelle Williams, convicted of one count of armed robbery and six counts of kidnapping, appeals from the trial court’s denial of his motion for new trial, contending that the trial judge violated OCGA § 17-8-57 and that trial counsel was ineffective for failing to move for a mistrial because of this alleged violation.

1. Viewed with all inferences in favor of the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was that Williams had previously been employed as a night manager by RMS Management Services, which owned several Shoney’s franchises in Macon. Tebben cleaned the carpets in several Macon Shoney’s restaurants for RMS during 1997. Generally, he did each restaurant at least once a month and dealt with the night manager, including Williams at the Ingleside/Riverside and Gray Highway locations. Tebben would arrive around closing time, usually 11:00 p.m. or midnight, and clean while the night manager and his employees closed up. He left his invoice for the work with the night manager.

Late on the evening of November 26, 1997, around midnight, Tebben arrived at the Shoney’s on Harrison Road to clean. As he was opening the front door, he saw Williams walking toward the doors. As Tebben walked in, Williams followed right behind him and went into the restroom. Tebben recognized Williams and spoke to him, but Williams did not make any response. Tebben proceeded to give his invoice to Caley, the night manager, and commented on Williams, but Caley did not know him. Tebben then went back outside to get his equipment, which took a couple of minutes.

While Tebben was doing this, Williams emerged from the restroom wearing a ski mask and carrying a gun. Williams then directed Caley to go to the back, the location of the manager’s office and the safe containing the day’s receipts. As they proceeded to the back, Williams directed five other employees to fall in and made all of them except Caley go into a storage locker. Williams then directed Caley to put the contents of the safe in a bag, except he did not want coins. Caley did not have a bag, so he wrapped the money in a sweatshirt and gave approximately $3,200 to Williams. Pursuant to Williams’ directions, he then let him out the rear door, and police were called. Tebben identified Williams to police and picked his photo from a six-man photo spread.

When police attempted to arrest Williams on the morning of November 27, as he was driving his girlfriend, Jasmine Williams, to work at another Shoney’s, Williams drove away at a high speed and, after wrecking the vehicle, ran on foot. Williams was taken into custody, and, upon searching him, officers found $1,550 in cash in Williams’ pockets. A portion of the money was uncirculated bills and sequentially numbered.

Williams told officers he had gotten part of the money gambling and several hundred dollars from his girlfriend. He also contended that he had been banging on the door of a former girlfriend’s house at the time of the robbery.

The evidence was legally sufficient. Jackson v. Virginia, supra; Herndon v. State, 253 Ga. App. 543, 546 (1) (b) (559 SE2d 749) (2002).

2. In his first enumeration of error, Williams contends that the trial court “improperly stated his opinion concerning the date and time of the robbery.”

After the jury had been deliberating for a period of time, the jury returned to the courtroom with a question. This question is not contained in the record or transcript, but in response to it, the following colloquy occurred:

THE COURT: ... 7 can’t comment on the facts of the case, and it’s not appropriate for the Court to answer questions like this or to give you any comment about the facts in the case.
THE FOREPERSON: Okay.
THE COURT: The collective wisdom of 12 jurors who’ve heard the case and listened to the evidence is the source from which you heed to answer these questions if you think they’re relevant. I’ll be glad to answer any questions you have in regard to the law . . . but any questions as — answering any questions regarding what the witnesses said or what the evidence was would not he appropriate for me to give.
THE FOREPERSON: May I just ask a question?
THE COURT: Yes, ma’am.
THE FOREPERSON: . . . We heard a couple of different things. They talked about the late-night hours of the 26th, the early morning of the 27th, but I kind-of think that it was the late-night hours of the 25th and the early-morning hours of the 26th, and he was arrested approximately 32 hours . . . after the robbery. Is that — can you answer that question!
THE COURT: No.
THE FOREPERSON: Not really?
THE COURT: No, ma’am. . . . Y’all will have to work that out. Y’all heard it just like I did.
THE FOREPERSON: Okay.
THE COURT: There are 12 of y’all and one of me, so I’m not going to comment about that. You all can recall that. I’d simply say to look to the indictment itself and the charges . . . and what’s on the face of the indictment. And I will say as a matter of law, you’re not required to find that it occurred on a particular day all right? That is not a that’s not material that it occurred on that particular day.
THE FOREPERSON: But he wasn’t arrested, like within eight hours or nine hours after the time of the incident. It was a full day later.
THE COURT: I have a strong opinion as to what the evidence showed on that point, hut I can’t share it with you.
THE FOREPERSON: Okay.

(Emphasis supplied.)

There was no objection voiced by defense counsel to this exchange. Pursuant to Paul v. State, 272 Ga. 845, 848-849 (3) (537 SE2d 58) (2000), however, we consider first whether the italicized statements constituted a violation of OCGA § 17-8-57 and, if so, whether it was plain error, as urged by Williams. Carroll v. State, 255 Ga. App. 230, 232 (4) (564 SE2d 833) (2002); Archie v. State, 248 Ga. App. 56, 57 (1) (545 SE2d 179) (2001).

The indictment charged that the incidents occurred “on or about the 26th day of November, in the year 1997.” The italicized statement in the colloquy regarding the date not being a material allegation of the indictment is, therefore, an accurate statement of law and not a comment on the evidence prohibited by OCGA § 17-8-57. Frazier v. State, 252 Ga. App. 627, 629 (2) (557 SE2d 12) (2001).

Regarding the last italicized statement, it must be considered, not only in the context of the entire colloquy, but in the context of the evidence presented. The only indication that the event happened on the evening of November 25 and morning of November 26 was Williams’ cross-examination of Officer Washington, which apparently created some confusion regarding the date. As Williams’ trial counsel testified during the motion for new trial hearing, “clearly from the defense counsel’s perspective, confusion is a good thing,” and, after the now complained-of instruction, “I still have no objection. In fact I have got my confusion, and I’m hoping somebody is doing something good with it.”

The objected-to statement, far from expressing, or even intimating, an opinion regarding what the evidence showed, merely stated that the court had an opinion which he could not share, as he had steadfastly refused to share it throughout the colloquy. There was no violation of OCGA § 17-8-57. Simmons v. State, 251 Ga. App. 682, 687-689 (5) (555 SE2d 59) (2001).

Nealy v. State, 230 Ga. App. 747, 749 (3) (498 SE2d 119) (1998), relied upon by Williams, is inapposite. There, the question posed by the jury was whether cocaine residue had been found in Nealy’s pocket upon arrest. The court, properly, refused to answer. On appeal, the argument was that the question was tantamount to a request for a recharge on the law, which the court erred in refusing to give.

Decided June 27, 2002

Reconsideration denied July 15, 2002.

Jon-Selby R. Hawk, for appellant.

Howard Z. Simms, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.

3. Our decision in Division 1 makes it unnecessary to consider Williams’ second enumeration of error alleging ineffective assistance of counsel.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       The length of deliberations before this point is not indicated in the record.

       All of the victims were consistent in their testimony that it occurred on the evening of November 26 into the morning of November 27.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A02A0119.
    BACA v. BACA
    (568 SE2d 746)
   Ruffin, Judge.

Rossana Baca filed a petition seeking relief from family violence, alleging that her husband, Jesus Baca, was abusive. Following a hearing, the trial court found in favor of Mrs. Baca and entered a six-month temporary protective order pursuant to the Georgia Family Violence Act. In eight enumerations of error, Mr. Baca challenges the protective order. For reasons that follow, we affirm.

In her petition, Mrs. Baca alleged that Mr. Baca has a history of physical and verbal abuse. Specifically, she averred that her husband had accused her of stealing money, threatened her, and kicked her in the leg. Mr. Baca responded, denying the allegations of abuse and accusing his wife of misconduct, including, among other things, alcoholism, drug abuse, theft, peijury, and violence.

During the hearing on the petition, the parties presented evidence supporting their various allegations. Mrs. Baca testified that, on June 16, 2001, her husband accused her of stealing $1,000 from his briefcase. When she denied the charge, he kicked her in the leg, causing a bruise, and threatened to kill her. Mrs. Baca tendered a picture of the bruise in evidence. Mrs. Baca also claimed that her husband had been an alcoholic and had used cocaine in the past.

Mr. Baca took the stand and denied the allegations. According to Mr. Baca, his wife was the one with a drug and alcohol problem. Mr. Baca testified that, on one occasion, his wife had pointed a shotgun at him and their two children. Mr. Baca also stated that his wife had a history of stealing and had recently converted one of his credit cards to her own use.

Following the hearing, the trial court found in favor of Mrs. Baca and entered a six-month protective order. In its order, the trial court (1) prohibited the husband from contacting his wife; (2) awarded the wife temporary custody of the couple’s two children; (3) ordered the husband to pay temporary child support; (4) awarded the wife exclusive possession of the family residence; and (5) designated those items the husband was permitted to take from the house.

On appeal, Mr. Baca contends that the trial court erred in several evidentiary rulings. Specifically, Mr. Baca asserts that the trial court erred in finding that: (1) evidence of Mrs. Baca’s violence was irrelevant; (2) evidence of Mrs. Baca’s drug use was irrelevant; and (3) evidence that Mrs. Baca had previously made false allegations against her husband was irrelevant. Mr. Baca also argues that the trial court erred in failing to consider him as a candidate for an award of temporary custody. In a related enumeration of error, Mr. Baca asserts that the trial court erred in failing to inquire into its own jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) prior to entering a custody award. In two enumerations of error, Mr. Baca maintains that the trial court improperly rendered judgment based upon an ex parte submission. Finally, Mr. Baca contends that the trial court erred in awarding excessive child support.

1. As a threshold matter, we must address our jurisdiction to entertain this appeal. The trial court entered the six-month protective order on June 27, 2001, and it expired on December 27, 2001. Thus, the issues raised arguably are moot, and “mootness is a mandatory ground for dismissal.” However, if “an issue ... is capable of repetition yet evades review,” we do not view that issue as moot. This is true for “those matters in which there is ‘intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers.’ ” This case involves a six-month protective order, which is the maximum length of time such order may remain in effect. Given the time constraints of appellate courts, it often is not feasible to reach the merits of this type of appeal during the six-month window. Accordingly, we must address whether the various issues are common to an existing class, yet tend to evade review.

As an initial matter, we find that the evidentiary issues are moot. In the three enumerations involving evidentiary complaints, Mr. Baca contends that the trial court erred in concluding that certain evidence was irrelevant. These evidentiary rulings were germane only to the temporary order, which has expired. There is no reason to suppose another court would rule the same way in a subsequent proceeding. Thus, the evidentiary issues are not capable of repetition, and the expiration of the protective order renders them moot.

Similarly, we find the enumerations of error relating to an alleged ex parte submission moot. At the crux of Mr. Baca’s argument is his contention that his attorney and opposing counsel were supposed to confer over which personal items Mr. Baca would be permitted to retrieve from the family house. Mr. Baca contends that opposing counsel submitted an incomplete list of personalty to the trial judge without first obtaining the signature or permission of his attorney. In a related enumeration of error, Mr. Baca contends the trial court erred in failing to correct this discrepancy. Again, the order has expired and no longer governs Mr. Baca’s entitlement to property. Thus, this issue is moot.

Nonetheless, we find the remaining issues are not moot given that they involve issues that both affect an existing class of sufferers and tend to evade review.

2. Mr. Baca contends that the trial court erred in failing to consider him as a candidate for an award of temporary custody. Mr. Baca cites OCGA § 19-9-3 (a) (3) (A) for the proposition that, in resolving custody issues, a child’s safety and well-being are the primary concerns. Implicit in Mr. Baca’s argument is the assertion that the trial court did not address the children’s best interests.

We are unaware of any case specifically addressing the standard for an award of temporary custody in connection with a protective order. Accordingly, we take the opportunity to clarify this issue on appeal. We agree with Mr. Baca that any award of temporary custody should be predicated on the best interest of the child. Nonetheless, we find no basis for reversal.

At the crux of Mr. Baca’s complaint is the fact that the trial court neglected to include findings of fact regarding the children’s best interests in its award. According to Mr. Baca, the absence of such findings shows the trial court did not consider the issue. We disagree.

During the hearing, Mr. Baca expressly stated his desire to retain custody of his children while the protective order was in effect. The trial court, nonetheless, awarded temporary custody to Mrs. Baca. Implicit in the trial court’s ruling is a finding that such award would be in the best interests of the children. In making such ruling, the trial court retains broad discretion, and we will not interfere with its discretion absent abuse. We find no abuse here.

It is readily apparent upon reviewing the briefs of the parties and the transcript from the hearing that the Bacas have had a tumultuous relationship. Both Mr. and Mrs. Baca accused the other of egregious conduct, and the trial court was responsible for choosing which party to believe. Here, the trial court clearly was swayed by the photograph of Mrs. Baca’s leg, which showed the bruise. Given this evidence of physical violence against Mrs. Baca, the trial court ruled in her favor.

It is not our function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments as to the welfare of the child. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is any reasonable evidence to support it.

The trial court clearly found Mrs. Baca to be the more credible witness, and we will not gainsay that finding on appeal. Given the evidence — albeit conflicting — that Mr. Baca was abusive toward his wife, we cannot say that the trial court erred in concluding that it was in the best interests of the children to remain with Mrs. Baca.

The fact that the trial court did not include specific findings of fact in its order regarding the best interests of the children does not alter this result. Mrs. Baca filed a motion seeking temporary custody. Thus, the trial court was not required to include findings of fact or conclusions of law in its order. Although the better practice may be to include such findings, we will not simply presume the trial court misapprehended the law unless the record clearly reflects such misapprehension.

3. Mr. Baca also asserts that the trial court erred in concluding that an “abated divorce proceeding ... in Fort Bend County, Texas, was irrelevant to the award of temporary custody.” Specifically, he argues that the trial court erred in failing to inquire into its own jurisdiction under the UCCJA. As we have not had an opportunity to address the interplay between the UCCJA and the Family Violence Act, we take the opportunity to do so.

OCGA § 19-9-46 (a) (2000) provides that

[a] court of this state shall not exercise its jurisdiction under [the UCCJA] if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with [the UCCJA], unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

According to Mr. Baca, the trial court should have directed an inquiry under the UCCJA upon learning that there was an abated divorce proceeding in Fort Bend County, Texas. Again, we disagree.

Under the express language of the UCCJA, a court is required to conduct an inquiry only when a similar petition is “pending” in the court of another state. As Mr. Baca acknowledges, the Texas action was abated because of an earlier divorce petition filed in Mexico in 1996. According to Black’s Law Dictionary, “[a]s used in reference to actions at law, [the] word abate means that [the] action is utterly dead and cannot be revived except by commencing a new action.” Thus, contrary to Mr. Baca’s contention on appeal, there was no action pending in Texas, and the UCCJA does not apply.

Moreover, requiring a court to inquire into its jurisdiction prior to addressing an allegation of family violence could dangerously delay the court in providing the relief sought. Indeed, the legislature has recognized this reality and amended the UCCJA accordingly. As of July 2001, the UCCJA provides for temporary emergency jurisdiction in this State if such jurisdiction “is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.” Accordingly, Baca’s underlying assertion that a trial court must inquire into its jurisdiction under the UCCJA prior to addressing an allegation of family violence is not well founded.

4. Finally, Mr. Baca argues the trial court erred in awarding excessive child support. Again, we have not had an opportunity to address the award of temporary child support in connection with a protective order. Thus, we take this opportunity to also address Mr. Baca’s assertion on appeal.

OCGA § 19-13-4 specifically authorizes a trial court to award temporary child support “as required by law.” Mr. Baca suggests that his child support payments should be calculated in accordance with OCGA § 19-6-15 (b). However, Mr. Baca’s argument is flawed. OCGA § 19-6-15 applies only to final verdicts or decrees, and this case involves a temporary protective order. Mr. Baca provides no authority for the proposition that a trial court must engage in the detailed calculation set forth in OCGA § 19-6-15 prior to awarding temporary child support. Indeed, OCGA § 19-6-14, which pertains to an award of temporary support pending a final divorce, does not contain such method for calculating support, but merely states that the trial court “may grant as alimony a sum sufficient for the support of the children of the parties.”.

To the extent Mr. Baca contends that the amount awarded is grossly disproportionate to his income, the record does not support his contention. According to Mr. Baca, his entire monthly income is less than $5,000 per month — the amount awarded as support by the trial court. The record, however, shows that Mr. Baca earns approximately $3,000 per month “free and clear” from bis job at a car dealership. In addition, Mr. Baca owns two businesses. There was evidence that Mr. Baca received a salary of $72,000 per year from one business. And the other company brought in approximately $8,000 per week. It follows that this claim of error presents no basis for reversal.

Decided June 25, 2002

Reconsideration denied July 16, 2002

Paul S. Weiner, for appellant.

Renata D. Turner, for appellee.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       OCGA § 19-13-1 et seq.

        Collins v. Lombard Corp., 270 Ga. 120, 121 (1) (508 SE2d 653) (1998).

       Id. at 122.

       Id.

       See OCGA § 19-13-4 (c).

       Indeed, this appeal was calendared to be decided during the January 2002 term.

       We further note that the temporary protective order was issued by a magistrate judge acting pro hac vice. Accordingly, it is unlikely that this judge would be required to adjudicate any future disputes between the Bacas.

       See In the Interest of J. E. H., 205 Ga. App. 847 (424 SE2d 61) (1992).

       See Massey v. Ga. Bd. of Pardons & Paroles, 275 Ga. 127 (1) (562 SE2d 172) (2002).

       See Collins, supra.

       See, e.g., Watkins v. Watkins, 266 Ga. 269, 273 (3) (466 SE2d 860) (1996) (court’s authority to award temporary custody in emergency situation if award is in child’s best interest); Adams v. State, 218 Ga. 130, 131 (126 SE2d 624) (1962) (in a decree awarding temporary custody, “[t]he best interest! ] of the child . . . [is] the basis for the award”).

       See Urquhart v. Urquhart, 272 Ga. 548, 549 (2) (533 SE2d 80) (2000).

       (Citation and punctuation omitted.) Lewis v. Lewis, 252 Ga. App. 539, 543 (2) (557 SE2d 40) (2001).

       To the extent that Mr. Baca contends that the trial court erred in excluding evidence of Mrs. Baca’s unfitness as irrelevant, we find no such error. Initially, we note that Mr. Baca was permitted to introduce substantial evidence regarding his wife’s alleged unfitness, including her alleged violence, thievery, and substance abuse. At one point, however, the trial court prevented Mr. Baca from questioning Mrs. Baca regarding her drug use, concluding that such questioning was irrelevant to the issue of whether he had committed an act of violence. Mr. Baca said the evidence went to Mrs. Baca’s “credibility,” but did not raise the issue of parental unfitness. Accordingly, any alleged error is waived. See Luxenberg v. Griffith, 237 Ga. App. 201, 202 (1) (514 SE2d 63) (1999).

       See Wilbanks v. Wilbanks, 238 Ga. 660-661 (1) (234 SE2d 915) (1977).

       See Green v. Krebs, 245 Ga. App. 756-757 (1) (538 SE2d 832) (2000).

       OCGA § 19-9-40 et seq. (2000).

       In his brief, Mr. Baca does not argue that the divorce action in Mexico remains pending. In fact, the evidence demonstrates that, at the time of the hearing, 'a third divorce petition had been filed in Georgia. •

       Black’s Law Dictionary (4th ed. 1968), p. 16.

       (Emphasis supplied.) OCGA § 19-9-64 (a).

       See OCGA § 19-13-4 (a) (6).

       On appeal, Mr. Baca asserts that this Court can take “judicial notice” that he grosses only three to five percent or, at most, $1,450 per month from the $8,000 per week brought in by one of his businesses, a check-cashing company. Courts may “judicially notice that which is within the knowledge of most men. The test is (1) whether the fact is one of common, everyday knowledge that all men of average intelligence are presumed to know, and (2) whether it is certain and indisputable.” (Punctuation omitted.) SEC, Inc. v. Puckett, 252 Ga. App. 422, 425 (2) (a) (555 SE2d 198) (2001) (physical precedent only). The profit margin of check-cashing companies does not meet either criterion.

       See, e.g., Nolan v. Nolan, 179 Ga. 677 (177 SE 248 ) (1934) (where evidence conflicts in action for temporary alimony, trial court may award such amount “as seems reasonable and appropriate”).


author: Pope, Presiding Judge.

text:
    A02A0160, A02A0161.
    GREENSBORO FORD, INC. v. FORD MOTOR COMPANY; and vice versa.
    (568 SE2d 758)
   Pope, Presiding Judge.

Greensboro Ford, Inc. and Randolph Jackson sued Ford Motor Company, alleging that it breached the parties’ dealership contract in a variety of ways. Ford moved for summary judgment, and Greensboro Ford moved for partial summary judgment. The trial court granted Ford’s motion on three issues, two of which are involved in this appeal. In Case No. A02A0160, Greensboro Ford appeals the trial court’s grant of summary judgment on those two issues. After appropriate permission from this court, in Case No. A02A0161, Ford appeals the denial of its motion on the other issues.

On, February 3, 1988, Greensboro Ford entered into a sales and service agreement contract with Ford by which Greensboro Ford became a dealer for Ford. Randolph Jackson signed the agreement as president of Greensboro Ford. Among the contract’s provisions were details regarding the dealership’s location and the specification that Greensboro Ford could not change its location without Ford’s prior written consent and the “mutual execution of a Dealership Facilities Supplement.”

When the parties entered into the contract, Greensboro Ford’s address was listed as “Rt. 2, Hwy. 278, Box 3” in Greensboro, Georgia. About a year after this contract was executed, the address for Greensboro Ford changed to “1191 E. Broad Street, Greensboro.” Greensboro Ford advised Ford in writing of this change. The change was noted by Ford by striking out the original address and indicating the new street address, without the new box number, in a handwritten insertion. On January 31, 1990, the parties executed an extension of the agreement which listed Greensboro Ford’s address as “1191 East Broad Street, Greensboro, Georgia.”

In January 1992, Greensboro Ford’s address changed when it changed locations. Greensboro Ford contends that it notified Ford in writing of the change in address. Nevertheless, there is no dispute that the parties did not execute an agreement about the change of address, nor is there any dispute that the 1191 East Broad Street address remained the address on Ford’s records.

In October 1992, the Central and Southern Bank of Georgia sent a letter notifying Ford that it had foreclosed on Greensboro Ford’s real property.

Greensboro Ford stopped operating its retail sales in the last part of 1992. On June 7, 1993, Ford sent a termination letter to Greensboro Ford at the 1191 East Broad Street address. According to evidence Ford produced, it copied Greensboro Ford’s Randolph Jackson on the letter. Ford also claims that it gave oral notice of the termination in a phone conversation to Greensboro Ford’s counsel at the time; this conversation is confirmed in a letter from that counsel dated June 8, 1993.

Greensboro Ford claimed that it never received the notice of termination which was returned as unclaimed to Ford. In August 1993, Ford consented in writing to allow another Ford dealership, Johnson Ford Sales, to maintain an additional place of business at the former Greensboro Ford location.

In July 1997, Greensboro Ford and Jackson filed suit against Ford and Johnson Ford seeking a temporary and permanent restraining order to prevent Johnson Ford from continuing to operate its Greensboro location. Greensboro Ford also alleged that Ford had breached its contract; it asserted a third-party beneficiary claim against Johnson Ford and it sought attorney fees, alleging bad faith and stubborn litigiousness.

Ford filed its motion for summary judgment contending that Greensboro Ford had offered no evidence to create any genuine issues of fact as to any of its claims. In response, Greensboro Ford submitted Jackson’s statement and the affidavit of its general manager, P. E. Ethridge. After hearing oral argument, the superior court granted the motion in part and denied it in part. Specifically, the court granted summary judgment on Greensboro Ford’s "claim that the termination was improper; it also concluded that Michigan law governed the contract. It denied the motion regarding Greensboro Ford’s claims that Ford unreasonably withheld approval of the purchase of Greensboro Ford’s assets and with respect to Greensboro Ford’s claims that Ford failed to support it. The court also denied the motion as to Greensboro Ford’s claims for bad faith and attorney fees.

Case No. A02A0160

1. In its first two enumerations of error, Greensboro Ford claims that the trial court erred in determining that Michigan law applied and in failing to decide the legal issues raised on the cross-motions, based on its interpretation of Michigan law.

The parties’ agreement specifically provided that it was to be construed under Michigan law, and “[a]bsent a contrary public policy, this court will normally enforce a contractual choice of law clause.” (Citations and punctuation omitted.) Carr v. Kupfer, 250 Ga. 106, 107 (296 SE2d 560) (1982). In this case, contrary public policies show that the superior court erred in concluding that the parties’ agreement to abide by Michigan law was proper.

Several considerations guide our decision that the superior court should not have enforced the parties’ agreement regarding Michigan law. First, the Michigan statute itself regarding motor vehicle dealerships specifically provides that it shall have no application to dealers located outside of Michigan. See Mich. Comp. Laws Ann. § 445.1582. Although Greensboro Ford’s complaint is drafted generally, the Michigan statute itself indicates that its law should not control. Compare Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315 (1) (c) (461 SE2d 282) (1995).

We find other policy considerations that indicate that Michigan law should not be controlling in both the Georgia Motor Vehicle Dealer’s Day in Court Act, OCGA § 10-1-630, and the federal Automobile Dealers’ Day in Court Act (ADDCA), 15 USC § 1222. The latter statute was enacted “to protect automobile dealers from abusive trade practices employed by manufacturers in an extremely concentrated market.” Stamps v. Ford Motor Co., 650 FSupp. 390, 395 (N.D. Ga. 1986). In fact:

The [ADDCA] is a remedial statute enacted to redress the economic imbalance and unequal bargaining power between large automobile manufacturers and local dealerships, protecting dealers from unfair termination and other retaliatory and coercive practices. The statute permits an automobile dealer to bring suit against an automobile manufacturer for the failure of said automobile manufacturer to act in good faith in performing or complying with any of the terms of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer.

Decided June 27, 2002

Reconsideration denied July 16, 2002

Anthony Kirkland, David C. Carnahan, for appellant.

(Citations and punctuation omitted.) Coffee v. Gen. Motors Acceptance Corp., 5 FSupp.2d 1365, 1379 (S.D. Ga. 1998). Accordingly, on this point we reverse the superior court and remand for proceedings consistent with this opinion.

2. Greensboro Ford then argues that the court erred in deciding that Ford’s notice of termination was proper even though the notice was mailed to a dealership location Ford knew had been abandoned. Based on our conclusion in Division 1, we remand this case for determination by the superior court under the appropriate law.

Case No. A02A0161

In the cross-appeal, Ford argues that the trial court erred in denying summary judgment in four manners and that there is no factual issue remaining on: Greensboro Ford’s claim that Ford unreasonably withheld approval of prospective purchasers of the Greensboro Ford dealership; on Greensboro Ford’s claim that Ford failed to support the Greensboro dealership; on Greensboro Ford’s claim that Ford acted in “bad faith”; and on Greensboro Ford’s claims for attorney fees.

We find no error in the superior court’s denial of Ford’s motion on these points. First, based on our reasoning in the Divisions above, we conclude that summary judgment would not have been proper. Secondly, there was sufficient evidence to support the court’s findings that there were factual issues on these points. See generally Ewers v. Ford Motor Co., 843 F2d 1331 (11th Cir. 1988).

Judgment reversed in part and case remanded in Case No. A02A0160. Judgment affirmed in Case No. A02A0161.

Ruffin and Barnes, JJ., concur.

Sutherland, Ashill & Brennan, John H. Fleming, Russell S. Bonds, Jackie L. Volk, for appellee.

       Although not dispositive of the issue, we note that there is a conflict between Greensboro Ford’s representations that it moved the dealership to 1191 East Broad Street, and a letter from Jackson in the record which states that this address was changed because “of changes in street numbers by our local post office.”


text:
    A02A0299.
    LAMAR COMPANY, LLC v. STATE OF GEORGIA.
    (568 SE2d 752)
   Ruffin, Judge.

The Lamar Company, LLC d/b/a Lamar Advertising Company (“Lamar”) was a lessee of property the State sought to condemn pursuant to the exercise of eminent domain. The State reached a settlement with Lamar’s lessor, which required it to break the lease with Lamar. Then, the State voluntarily dismissed the condemnation proceeding. Lamar challenged the dismissal, arguing that the State owed it just compensation for its leasehold interest in the property. In the alternative, Lamar sought payment of attorney fees for having to litigate the condemnation issue. The trial court denied Lamar’s motion, and Lamar appealed. For reasons that follow, we affirm in part and reverse in part.

The record shows that Lamar is an outdoor advertising company that leased space from the owners of 339 Northside Drive to erect a billboard on the property. The lease provided, in pertinent part, that the owners “shall have no cancellation privileges on this contract for the first four (4) years or until January 1, 1996. After January 1, 1996, Lessor may cancel this agreement if the property is sold, developed or leased ... by giving the Lessee ninety (90) days advanced written notice.”

In April 2000, the State sought to condemn the property, and it named the owners and Lamar in the condemnation action. Following a hearing, a court-appointed special master awarded the owners $131,600 and Lamar $15,000. Both the owners and Lamar appealed the award to the Fulton County Superior Court. Before that court issued a ruling, the State reached a settlement agreement with the owners in which the owners agreed to sell the property to the State for $240,000. As part of the agreement, the owners specifically agreed to cancel Lamar’s lease in accordance with the lease cancellation clause. After the settlement agreement was signed, the State voluntarily dismissed the condemnation proceeding.

Lamar challenged the dismissal, arguing that the State could not unilaterally dismiss the action without first compensating Lamar. In the alternative, Lamar sought payment of its attorney fees pursuant to OCGA § 9-15-14 (b) for the expense it incurred in defending the condemnation action. The trial court denied Lamar’s motion, and this appeal ensued.

1. “This Court diligently protects the sacred right of property owners to just and adequate compensation before private property is taken or damaged for public purposes.” This protection extends to leasehold interests. It is axiomatic that, to recover for the taking of a leasehold, the lessee must, in fact, have such interest in the property. Accordingly, if the lessee has waived its interest, it is not entitled to recover for compensation as a condemnee.

Property rights are subject to contractual provisions in leases. Here, the lease specifically provided that, if the property was sold, the owners could terminate the agreement by providing 90 days advance notice. When the owners sold the property to the State, they terminated the lease pursuant to this clause. In so doing, the owners effectively extinguished Lamar’s interest in the property. As Lamar no longer has a compensable interest in the property, the State is not required to treat Lamar as a condemnee. It follows that the trial court did not err in permitting the State to dismiss the condemnation proceeding.

2. Lamar also challenges the trial court’s denial of its motion for attorney fees pursuant to OCGA § 9-15-14 (b). In denying Lamar’s motion, the trial court clearly was troubled by the inherent unfairness of Lamar being “dragged” through condemnation proceedings — incurring the legal expenses associated therewith — only to have its interest in the property extinguished by the owners’ sale of the property to the State. Nonetheless, the trial court declined to award fees, concluding that the State (1) had not acted in bad faith, and (2) had substantial justification for bringing the action. Evidently, the trial court believed that an award of attorney fees was beyond its power. We disagree.

Pursuant to OCGA § 9-15-14 (b), a court has the power to assess attorney fees upon finding that a party brought or defended an action without substantial justification or unnecessarily expanded the proceeding. This Code section also permits an award of attorney fees based upon a finding that an “action, or any part thereof, was interposed for delay or harassment.”

In assessing fees under OCGA § 9-15-14 (b), a court need not find that a party acted in bad faith. The statute requires only that the action lack “substantial justification,” and “acting without substantial justification and acting in bad faith are not synonymous.” In addressing Lamar’s request, the trial court arguably believed that bad faith was a prerequisite to the assessment of attorney fees. Thus, the trial court’s ruling was possibly colored by a misunderstanding of the applicable standard.

Moreover, although the trial court concluded that the State was justified in bringing the action, it failed to address whether the State bore some responsibility for unnecessarily expanding the proceedings. As the Supreme Court recognized in McKemie v. City of Griffin, “[a] governmental entity should invoke its power of eminent domain only for the legitimate purpose of actually accomplishing a public goal, and not as a means merely to establish the most cost effective method for doing so.”

In this case, as in McKemie, the State filed a condemnation petition which ultimately proved unnecessary, but which caused Lamar to incur expenses in preparing for the special master’s award and instituting an appeal. After essentially forcing Lamar to spend money by filing the petition, the State opted to negotiate exclusively with the property owner, reaching an agreement that required the property owner to terminate Lamar’s lease, thus extinguishing Lamar’s interest in the property. The State then dismissed the petition. In so doing, the State likely was motivated by financial concerns, rather than a desire to foist unnecessary litigation expenses on Lamar. Nonetheless, a court faced with such tactics is authorized to conclude that the State’s methods constituted a misuse of its eminent domain power, which unnecessarily expanded the proceedings without substantial justification. Because the trial court’s analysis does not reflect consideration of this basis for an award of attorney fees, we reverse and remand to the trial court to address this issue.

Decided June 25, 2002

Reconsideration denied July 16, 2002

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, Scott W. Peters, for appellant.

Thurbert E. Baker, Attorney General, Holland & Knight, Jason P. Wright, James M. Hunter, Mary L. Glassberg, Weiner, Yancey, Dempsey & Diggs, Beryl H. Weiner, for appellee.

Judgment affirmed in part and reversed in part and remanded.

Pope, P. J., and Barnes, J., concur.

       The State filed a motion to dismiss the appeal, which we hereby deny.

       The original lessee, National Advertising Company, assigned the lease to Lamar. For the sake of clarity, we refer only to Lamar.

        McGregor v. Bd. of Regents &c. of Ga., 249 Ga. App. 612, 613 (548 SE2d 116) (2001).

       See id.

       See State Bd. of Ed. v. Drury, 263 Ga. 429, 431 (1) (437 SE2d 290) (1993); Happoldt v. Monroe County, 248 Ga. App. 175, 176 (546 SE2d 297) (2001).

       See McGregor, supra (condemnation clause in lease that waives right to compensation divests lessee of right to recover from condemnor). Compare Simmerman v. Dept. of Transp., 167 Ga. App. 383, 384-387 (307 SE2d 4) (1983) (condemnation clause in lease provided lessee had a “right to receive a portion of such compensation”); Dept. of Transp. v. Calfee Co. of Dalton, 202 Ga. App. 299, 300-302 (1) (414 SE2d 268) (1991) (condemnation clause in lease limited lessees’ claims against lessor, but did not preclude recovery against condemnor).-

       See McGregor, supra.

       We note that Lamar did not argue that the owners improperly terminated the lease, but focused instead on the State’s culpability.

       See id.

       See Ga. R. & Power Co. v. Mooney, 147 Ga. 212 (1) (93 SE 206) (1917) (where there has been no taking, condemnor may dismiss condemnation proceedings pending appeal).

        Evans County Bd. of Commrs. v. Claxton Enterprise, 255 Ga. App. 656, 658 (1) (566 SE2d 399) (2002).

       272 Ga. 843 (537 SE2d 66) (2000).

       Id. at 844 (3).

       See id.

       See Claxton Enterprise v. Evans County Bd. of Commrs., 249 Ga. App. 870, 877 (5) (549 SE2d 830) (2001).


author: MlKELL, Judge.

text:
    A02A0308.
    MARTIN v. THE STATE.
    (568 SE2d 754)
   MlKELL, Judge.

After a jury trial, Kenyata Columbus Martin was convicted of one count of armed robbery and one count'of possession of a firearm during the commission of a felony. On appeal, he asserts that the trial court erred by failing to transfer his case to juvenile court and by admitting his statement into evidence. We affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” So viewed, the evidence shows that Martin was 13 years old when' the offenses for which he was convicted occurred. Martin, who was tried as an adult, admitted on direct examination that he used a gun to commit the robbery but claimed that he was coerced to do so by one of the co-defendants.

1. In his first enumeration of error, Martin argues that the court had a duty to investigate whether his case should be transferred to juvenile court. He further argues that the court erred in failing to transfer the case. We disagree.

Pursuant to OCGA § 15-11-28 (b) (2) (A) (vii), “[t]he superior court shall have exclusive jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed . . . [a]rmed robbery if committed with a firearm.” Martin argues that subsection (b) (2) (B) of the statute imposed the duty to investigate the case. Instead, that subsection provides that “[a]fter indictment, the superior court may after investigation and for extraordinary cause transfer any case involving a child 13 to 17 years of age alleged to have committed any offense enumerated in subparagraph (A) of this paragraph [to the juvenile court].” In interpreting statutes, we are required to give words their ordinary and literal meaning. By the use of the word “may,” subsection (b) (2) (B) does not establish a duty to investigate and transfer the case but gives the superior court the discretion to do so should it so desire. Thus, Martin’s argument fails.

2. Next, Martin argues that his confession is inadmissible for two reasons: (1) the state violated OCGA § 15-11-47 because the detectives should have taken him to a juvenile court or contactéd a juvenile court officer before interviewing him and notified his guardian of his arrest; and (2) he was given hope of receiving a benefit in exchange for his confession. “The standard for determining whether or not a confession or admission was voluntary is the preponderance of the evidence standard. The decision of the trial court on this point will not be disturbed on appeal unless there is obvious error.”

(a) OCGA § 15-11-47 (a) (3) provides that “[a] person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall . . . [b]ring the child immediately before the juvenile court or promptly contact a juvenile court intake officer.” However, the “[fjailure of the police to promptly take [the defendant] before the juvenile court or to contact a juvenile court intake officer as provided by OCGA § 15-11-19 (a) (3) [redesignated OCGA § 15-11-47 (a) (3), effective July 1, 2000,] does not, as a matter of law, make the confession inadmissible.” Furthermore, we have rejected the per se exclusionary rule for statements given by juveniles outside the presence of a family member. Instead, “[t]he issue is whether there was a knowing and intelligent waiver by [the defendant] of his constitutional rights in making the incriminating statement, assessed under the totality of the circumstances.” When applying the totality of the circumstances test, the court considers the following factors:

The age of the accused; the education of the accused; the knowledge of the accused as to the substance of the charge and nature of his rights to consult with an attorney; whether the accused was held incommunicado or allowed to consult with relatives or an attorney; whether the accused was interrogated before or after formal charges had been filed; methods used in interrogation; length of interrogation; whether accused refused to voluntarily give statements on prior occasions; and whether accused repudiated an extrajudicial statement at a later date.

We consider the evidence relevant to these nine factors below.

The evidence shows that Detective D. P. Henry of the Gwinnett County Police Department traveled to Martin’s school in Tift County to arrest him. Martin was taken directly to the Tift County Sheriff’s Office where he was interviewed. Detective Henry did not talk to Martin’s guardian, his grandfather, before interviewing Martin, but there was evidence that the grandfather had been contacted the previous evening and informed that Martin would be arrested the next day.

Before questioning Martin, Detective Henry advised him of his rights using the Advice of Rights to Juveniles form. At the JacksonDenno hearing, Detective Henry testified that he put the form in front of Martin and read each paragraph to him. After reading each paragraph, the detective asked Martin if he understood what had been read and Martin replied that he did. Detective Henry then had Martin initial each paragraph to show that he understood each of his rights. Martin also signed the form indicating that he understood and was waiving his rights, including the right to have a parent or guardian present during the questioning. Detective Henry testified that when he asked Martin if he wanted his grandfather present during the interview, Martin indicated that he did not.

The interview took place in a conference room at the Tift County Sheriff’s Office and lasted approximately 40 minutes. Detective Henry interviewed Martin first and then obtained his taped statement, which was 15 to 16 minutes long. Upon questioning from the court, the detective testified that during the course of the interview, Martin did not repudiate or change any portion of his statement nor were there any inconsistencies in what he said.

Applying the nine factors, it appears that Martin was old enough and educated enough to understand the nature of the charge. It is also clear from the record that Martin was intelligent enough to understand the rights he waived before giving his statement. We note that the record contains two letters that Martin wrote to the judge explaining why he committed the crime, requesting leniency in his sentencing, and complaining that further incarceration would serve no purpose because prison did not afford him the opportunity “to get into anything productive.” Martin was not denied the opportunity to consult with relatives or an attorney. Instead, the evidence shows that Martin refused the option to have his guardian present for the interview.

Decided June 26, 2002

Reconsideration denied July 16, 2002

Clark & Towne, Wystan B. Getz, W. Keith Davidson, for appellant.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

Although not yet indicted, Martin was under arrest at the time he gave his statement. The evidence also shows that there was nothing coercive or otherwise improper about the method or length of the interrogation. There was no evidence that Martin had ever refused to give a voluntary statement. Finally, Martin has never repudiated his confession. Instead, consistent with his statement, he testified at trial that he committed the crimes. Balancing the circumstances, we find that the trial court’s conclusion that Martin knowingly and intelligently waived his rights and made a voluntary statement was not clearly erroneous.

(b) The determination as to whether Martin received hope of receiving a benefit depends totally upon the credibility of the witnesses. Martin testified that Detective Henry told him that his case would remain in juvenile court if Martin talked to him before they took his statement. Detective Henry denied that he gave Martin any hope of benefit or promised him anything in exchange for his statement. As “[i]t was for the trial court to weigh the credibility of the witnesses and accordingly make its determinations of fact,” Martin’s argument fails.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       (Citation and punctuation omitted.) Hutchinson v. State, 232 Ga. App. 368, 369 (501 SE2d 873) (1998).

       (Emphasis supplied.) OCGA § 15-11-28 (b) (2) (B).

       See Carswell v. State, 251 Ga. App. 733, 734 (1) (b) (555 SE2d 124) (2001).

       See Bishop v. State, 265 Ga. 821, 822 (1) (462 SE2d 716) (1995) (OCGA § 15-11-5 (b) (2) (redesignated as Code section 15-11-28 (b) (2), effective July 1, 2000) gives the superior court post-indictment discretion to transfer cases to juvenile court).

       Formerly OCGA § 15-11-19.

       (Citation and punctuation omitted.) Barnes v. State, 178 Ga. App. 205, 206 (2) (342 SE2d 388) (1986).

       (Citation and punctuation omitted.) Gilliam v. State, 268 Ga. 690, 692 (3) (492 SE2d 185) (1997).

        Attaway v. State, 244 Ga. App. 5, 6 (534 SE2d 580) (2000).

       (Citations omitted.) Gilliam, supra at 692 (2).

       (Citation omitted.) Attaway, supra at 6-7.

         (Citations omitted.) Gilliam, supra at 692 (3).


text:
    A02A0394.
    BALLARD v. BURNHAM.
    (568 SE2d 743)
   Andrews, Presiding Judge.

Mary Ballard appeals from the trial court’s grant of summary judgment to James Burnham, her son-in-law, in her premises liability action.

In reviewing the grant or denial of summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996).

So viewing the evidence, the record shows the following. Ballard, the mother of Maria Burnham, James’ wife, and the grandmother of Emilie, their two-year-old daughter, baby-sat for Emilie for compensation, making her an invitee in her daughter and son-in-law’s home. She had assisted in caring for Emilie since shortly after her birth in 1996 and previously had helped care for Emilie’s two older siblings. On the evening of May 17, 1998; she baby-sat Emilie while the Burnhams went to dinner. Ballard spent the night in the Burnhams’ home, as she occasionally did, and was to continue caring for Emilie the next day. On the morning of May 18, Ballard arose, walked from the den where she slept across the wooden floored living room, climbed the carpeted stairway, and went to Emilie’s room. After getting Emilie up, Ballard and Emilie began walking back to the kitchen/den area. The lighting in the area of the hardwood floor was poor and the floor dark, making it difficult to see. Ballard looked down onto the hardwood floor before she stepped from the stairs, but did not see a quarter on the floor. As Ballard stepped from the carpeted steps onto the hardwood floor, she slid across the floor and fell forward, injuring her wrist. Hearing her mother cry out, Maria Burnham came to her aid and, looking in the area near Ballard’s feet, found a discolored and corroded quarter near Ballard’s feet.

Maria Burnham then cursed her husband because he had repeatedly given Emilie coins. Maria Burnham had, on numerous occasions, talked to James Burnham about the danger of Emilie’s swallowing coins as well as the danger to people walking on the floor. Maria Burnham was constantly picking change off the floor and taking coins from Emilie. She had vacuumed up so many coins that she had to replace her vacuum cleaner. On at least two occasions, the last a couple of days before her fall, Ballard was present when Maria admonished James about giving change to Emilie. Maria also talked to Ballard about her concerns regarding coins ending up on the floor. Ballard was aware that Maria had to get a new vacuum cleaner because of damage from the coins. Ballard had personally picked coins off the floor and was aware that, like all two-year-olds, Emilie left books, crayons, and toys on the floor as well as coins. Further, between hearing Maria Burnham’s last admonishment of James and Ballard’s fall, Ballard saw Maria vacuum the house.

James Burnham acknowledged giving Emilie coins; that he had been repeatedly warned regarding the danger of her swallowing them; that the vacuum cleaner had been damaged by the coins; and that coins on the floor created a hazard. On May 18, he left the house at 7:00 a.m. and was not there when the fall occurred. Burnham suffered from diabetes. As a result, he was blind in one eye and had poor vision in the other. While he had not inspected the floor on May 18, had he done so, he could not have seen the darkened quarter on the floor due to his eyesight.

According to Maria Burnham, picking up after small children is “on and on.” She was constantly aware of things left on the floor by Emilie and picked them up when she encountered them, as well as regularly vacuuming and cleaning the home. Prior to going to dinner the evening before Ballard’s fall, Maria Burnham did not see the quarter on the floor.

“(A)n owner or occupier of land is liable in damages to invitees who come upon the land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe.” Murphy v. Blue Bird Body Co., 207 Ga. App. 853, 857 (3) (429 SE2d 530) (1993); OCGA § 51-3-1. As a result, the [Burnhams] owed [Ballard] a duty of reasonable care. In premises liability cases, proof of falling or slipping, without more, does not give rise to liability on the part of the property owner. Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 215 (2) (483 SE2d 671) (1997). Instead, a plaintiff may recover only if the property owner had knowledge of the condition and the plaintiff did not know about it. Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 394 (506 SE2d 910) (1998). The true ground of liability is the defendant’s superior knowledge about the existence of a condition that may subject the invitee to an unreasonable risk of injury. Pound v. Augusta Nat., 158 Ga. App. 166, 167-168 (279 SE2d 342) (1981). To fulfill the duty to inspect premises to keep them safe from defects including hidden defects, the law requires only the exercise of ordinary care, not extraordinary care. Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591, 593 (466 SE2d 58) (1995).

Decided June 24, 2002

Reconsideration denied July 16, 2002

Robert H. Benfield, Jr., for appellant.

Frederick A. Johnson, for appellee.

Hansen v. Cooper, 253 Ga. App. 533, 535-536 (559 SE2d 740) (2002). See also Owens v. DeKalb Med. Center, 253 Ga. App. 19, 20 (1) (557 SE2d 404) (2001).

While the trial court concluded that Ballard had failed to show that James Burnham had superior actual or constructive knowledge of the specific quarter upon which she fell, we pretermit that issue, focusing instead on the issue of Ballard’s equal knowledge that coins on the floor of the home created a hazard.

As reflected by her own admissions set out above, Ballard was aware of the constant problem created by coins and other items being on the floor. Additionally, immediately prior to her fall, she had safely traversed the area in which she thereafter fell. Therefore, her knowledge being at least equal to that of James Burnham, she may not recover on her premises liability claim. See, e.g., Yasinsac v. Colonial Oil Properties, 246 Ga. App. 484, 485 (1) (541 SE2d 109) (2000) (customer who first stepped onto a 6.5-inch-high landing, then fell off of it, had equal knowledge); Nicholson v. Pike Nurseries, 229 Ga. App. 540, 541 (494 SE2d 214) (1997) (customer who walked up concrete ramp while it was raining, then fell on her way down, had equal knowledge); Hudson v. Quisc, Inc., 205 Ga. App. 840, 841 (424 SE2d 37) (1992) (customer who had previously slipped in grease in restaurant precluded from recovery for second slip).

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       James Burnham did not spend change, but collected it in a jar and was giving Emilie the change to do the same thing.

       A grant of summary judgment will be affirmed if it is right for any reason. Hot Shot Express v. Assicurazioni Generali, S.P.A., 252 Ga. App. 372, 373 (556 SE2d 475) (2001).


author: Mikell, Judge.

text:
    A02A0602, A02A0603.
    SMITH v. GWINNETT COUNTY (two cases).
    (568 SE2d 712)
   Mikell, Judge.

In these companion cases, C. W. Smith appeals from the trial court’s grant of summary judgment to Gwinnett County in both cases on the grounds of res judicata. Smith argues in several enumerations of error that the doctrine of res judicata does not apply. He also challenges the trial court’s award of attorney fees to Gwinnett County. We affirm.

C. W. Smith was the owner of a parcel of land known as Freeman Lake, which is located in Gwinnett County. This case began in 1995 when Gwinnett County filed a petition for a temporary restraining order, an interlocutory injunction, and a permanent injunction against Smith, Smith’s Lake Corporation, and Grady Smith, the appellant’s brother, to prevent them from attempting to repair the Freeman Lake Dam without first obtaining the required engineering studies and land disturbance permits. The temporary restraining order was granted and then converted to an interlocutory injunction. During discovery, a consent order was entered wherein the defendants agreed to retain a licensed engineer to issue a written report addressing the safe reconstruction of the dam. Further, the order stipulated that the repair work should begin within 30 days after the report was issued. More than six months later, the trial court found that the defendants had engaged in activities which violated the injunction and had not complied with the consent order. These activities included intentionally rupturing a sewer connection, about which the appellant complains in the instant appeal. The court ordered the county to take control of the property to repair the dam and restore the lake within 90 days and to assess all costs incurred in doing so against the defendants.

The defendants appealed the trial court’s order to our Supreme Court. In Smith v. Gwinnett County, 268 Ga. 179 (486 SE2d 151) (1997), the Court held that “[t]he injunction [filed by Gwinnett County did] not give rise to an inverse condemnation of the Freeman Lake property. The trial court merely took control of the property to repair the dam and restore the lake. It did not work a destruction of defendants’ private property without just and adequate compensation.” Id. at 181 (2). Further, “[t]he trial court did not exceed its powers in ordering the County to repair the dam and restore the lake at defendants’ expense. Where equity acquires jurisdiction for any purpose it will retain jurisdiction to give full and complete relief, whether legal or equitable, as to all purposes relating to the subject matter.” (Citations and punctuation omitted.) Id. at 181 (3).

Next, the trial court entered a final order requiring the defendants to pay the costs associated with the restoration of the lake totaling $544,889.89. The order permanently enjoined the defendants from engaging in further construction activity on the property, except with good cause shown to the court. In its order, the court warned that the failure to pay the judgment would result in its enforcement through the appointment of a receiver to take control of and sell the property. After the defendants refused to pay the judgment, a receiver was appointed. The defendants again appealed to our Supreme Court. In Smith v. Gwinnett County, 270 Ga. 424 (510 SE2d 525) (1999), the Court held,

The trial court originally took only the control of the property for the limited purpose of insuring its restoration. The trial court was authorized to assess the restoration expenses against the Smiths. When the defendants did not pay those expenses, it was permissible to levy on their property to satisfy the judgment against them. Thus, the County did not take the property in violation of the constitutional requirement of payment of just and adequate compensation. The court ordered a levy on the property in order to satisfy a valid personal judgment which the County obtained against the Smiths.

(Citations omitted.) Id. at 425 (1). The property was sold at a public auction for $590,000, and the court approved the sale.

Within a week after the receiver filed the deed consummating the sale, Smith filed four actions in state court, two of which are involved in these appeals, both alleging inverse condemnation. Specifically, in one action Smith alleged that Gwinnett County unlawfully granted two sewer easements without compensating him, and in the other, that the county unlawfully limited his use of his property. Gwinnett County successfully moved for summary judgment in those actions and for attorney fees and expenses. Smith now appeals the trial court’s grant of summary judgment in both cases and the award of $1,562.50 in attorney fees and costs.

1. “The doctrine of res judicata involves prior litigation by the same parties on the same subject matter in a court of competent jurisdiction as to all issues which were raised or which could have been raised.” (Citations and emphasis omitted.) Pope v. City of Atlanta, 240 Ga. 177, 179 (1) (240 SE2d 241) (1977). The parties involved herein are the same as those involved in the appeals to our Supreme Court. As Smith argues in the instant appeals, he argued to our Supreme Court that the county’s exercise of jurisdiction over his property constituted an unlawful taking without just compensation. We are cognizant of the Fifth Amendment’s prohibition against the taking of private property by the government without just and adequate compensation. However, as these issues have already been decided by a court of competent jurisdiction, we are barred from further consideration of them by the doctrine of res judicata. See OCGA § 9-12-40.

2. Similarly, we are also barred from considering Smith’s argument that he should have been compensated for the diminution in value for the sewer easements on the property and the cost for the sewer repair, which was assessed against the defendants as a part of the total repair cost. Pursuant to OCGA § 9-12-40, which codified Georgia’s common law of res judicata, “one must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata.” (Emphasis omitted.) Fowler v. Vineyard, 261 Ga. 454, 458 (3) (b) (405 SE2d 678) (1991). The county’s right to take control of the property to repair and restore it included the repair of sewer taps on the property. As this issue was a matter for decision in the earlier proceedings, it is res judicata and cannot now be raised.

Decided April 18, 2002

Reconsideration denied July 16, 2002

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellant.

Michael V. Stephens II, Karen G. Thomas, for appellee.

3. The trial court awarded attorney fees in the amount of $1,562.50 to Gwinnett County pursuant to OCGA § 9-15-14 (a) and/ or (b), having found Smith’s action “vexatious and frivolous.” OCGA § 9-15-14 (a) provides for the recovery of attorney fees and expenses against a party where that party’s claim, defense, or position is not based upon any justiciable issue of law or fact. OCGA § 9-15-14 (b) provides for such recovery where a party’s action lacked substantial justification, was interposed for delay or harassment, or the party or his counsel unnecessarily expands the proceeding by other improper conduct.

OCGA § 9-15-14 (a) provides for a mandatory award, which is reviewed on appeal utilizing the “any evidence” rule, while OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion. Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987). In this case, the actions were brought after Smith no longer owned the property. Thus, his position was not based upon any justiciable issue of law or fact and lacked substantial justification. The trial court awarded Gwinnett County attorney fees based upon an hourly rate of $125, and counsel submitted an affidavit showing that he worked 12.5 hours on the state court actions. Under OCGA § 9-15-14 (a) and (b), the evidence supports the trial court’s award.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.


author: POPE, Presiding Judge.

text:
    A02A0803.
    PRISON HEALTH SERVICES, INC. v. MITCHELL et al.
    (568 SE2d 741)
   POPE, Presiding Judge.

The sole issue in this case is whether a plaintiff can file a renewal action in a Georgia court under OCGA § 9-2-61 within six months following the dismissal of claims in a prior federal action, without first paying the litigation expenses submitted by a defendant in a bill of costs to the federal district court. We hold that the payment of such expenses is not a prerequisite to the filing of a renewal action in this state.

The litigation in this case arose after Alfonso Roberson died in October 1997 while in custody at the Chatham County jail. His parents, Nash Mitchell and Lorraine Roberson, brought suit in federal court against Chatham County, the Chatham County Sheriff’s Department, Prison Health Services, Inc. (“PHS”) and others. The lawsuit alleged federal claims under 42 USC § 1983 and the U. S. Constitution, as well as various state law claims.

The district court granted summary judgment to the defendants as to all federal claims and dismissed the state law claims “without prejudice because § 1367 (d) has tolled any applicable state statutes of limitations.” See 28 USC § 1367 (d). The parents filed a notice of appeal from the order of summary judgment on the federal claims, but did not appeal the dismissal of the state law claims.

The defendants subsequently submitted a bill of costs pursuant to 28 USC § 1920, which allows the prevailing party to recover certain costs of litigation. Rule 54 (d) (1) of the Federal Rules of Civil Procedure provides that “costs other than attorney [ ] fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” The bill of costs in this case sought reimbursement for court reporter fees, witness fees and copying costs in the amount of $6,955.70. The record demonstrates that there were no outstanding costs owed to the district court itself. The costs submitted by the defendants were taxed by the district court on October 1, 1999, and on October 6,1999, the parents’ counsel remitted the full amount due under the bill in a check made payable to the clerk of the district court.

On December 17,1999, after the applicable limitation period had expired, the parents filed a renewal action in the State Court of Chat-ham County, reasserting the state claims dismissed by the federal court. Several months later, the Eleventh Circuit Court of Appeals affirmed the district court’s opinion, and PHS submitted an additional bill of costs to the Eleventh Circuit in the amount of $61.05.

PHS subsequently filed a motion for summary judgment asserting that the parents’ claims were barred by the applicable statute of limitation. PHS argued that the parents could not avail themselves of the renewal statute because they had failed to pay costs in the federal action. In particular, PHS noted that the parents had erroneously paid the costs taxed in district court to the court clerk, instead of to the defendants, and had failed to pay the costs taxed by the appellate court. While this motion was pending, the parents tendered to PHS’s attorney a check in the amount of $7,016.75 to cover all costs arising in the federal litigation.

The trial court denied summary judgment, finding “that there are genuine issues of material fact regarding whether Plaintiffs made a good faith attempt to pay the court costs that Plaintiffs knew about prior to filing this action.” At PHS’s request, the trial court certified this issue for immediate review, and we granted the application for interlocutory appeal.

Subsection (a) of Georgia’s renewal statute provides:

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41.

OCGA § 9-2-61 (a). OCGA § 9-11-41 (d) requires that before filing a previously dismissed action, a plaintiff must pay the court costs in the first suit. And Georgia courts have interpreted this requirement to be “ ‘a condition precedent to filing a second suit,’ so that ‘payment of costs in a previous suit is jurisdictional’ with respect to a subsequent suit. Little v. Walker, 250 Ga. 854, 855 (301 SE2d 639) (1983).” Jeff Davis Hosp. Auth. v. Altman, 203 Ga. App. 168 (416 SE2d 763) (1992). A plaintiff, however, may avoid this requirement where he demonstrates that the costs were unknown to him after a good faith effort to ascertain them, and further shows that any subsequently discovered costs were paid within a reasonable time. Butler v. Bolton Road Partners, 222 Ga. App. 791, 793 (2) (476 SE2d 265) (1996); Daugherty v. Norville Indus., 174 Ga. App. 89, 91 (329 SE2d 202) (1985).

Decided June 21, 2002

Reconsideration denied July 16, 2002.

Kent, Sigman & Bogle, A. Martin Kent, Suzanne R. Bogle, Quillian, Loncon & Edwards, Abda L. Quillian, for appellant.

We must determine, therefore, whether the definition of court costs under OCGA § 9-11-41 (d) includes the witness fees, court reporting fees and copying expenses that a prevailing party in a federal action is allowed to recover. We conclude that it does not. There is no provision under Georgia law parallel to 28 USC § 1920 allowing the clerk of court to automatically tax such costs. And neither OCGA § 9-2-61 nor § 9-11-41 (d) makes any mention of a prevailing party’s litigation costs. Accordingly, we find nothing in the Georgia Code or the rules of civil procedure that would impose the added burden of paying litigation expenses upon a plaintiff who chooses to first file an action in federal court.

Nor do we believe that the legislature intended to impose such a burden. Our Supreme Court has noted in another context that the renewal statute is remedial in nature and thus should be “construed liberally to allow renewal.” Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). We do not believe that it would promote the remedial purpose of the statute to require that a plaintiff pay his opponent’s litigation costs as a prerequisite to filing a renewal action. Accordingly, we hold that the definition of court costs in this context should be confined to those costs actually due and owing the court, such as filing fees or jury impaneling fees. See, e.g., Oseni v. Hambrick, 207 Ga. App. 166 (427 SE2d 559) (1993).

And because the record demonstrates that there were no outstanding court costs in this case, we find that the trial court correctly denied PHS’s motion for summary judgment. See Costrini v. Hansen Architects, 247 Ga. App. 136, 138 (2) (543 SE2d 760) (2000) (grant of summary judgment must be affirmed if it is right for any reason).

Judgment affirmed.

Ruffin and Barnes, JJ, concur.

Savage, Turner, Pinson & Karsman, Brent J. Savage, C. Dorian Britt, Albert E. Clark, for appellees.

       28 USC § 1920 provides:
      A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

       It is interesting to note that the most recent amendment to the renewal statute specifically deleted any reference to the federal rules of civil procedure. The statute previously read that a prior dismissed action could “be recommenced in a court of this state or if permitted by the federal rules of civil procedure in a federal court. . . .” (Emphasis supplied.) Ga. L. 1998, p. 862, § 1.


author: Barnes, Judge. POPE, Presiding Judge,

text:
    A02A0428.
    JOHNSON v. PUBLIX SUPERMARKETS et al.
    (568 SE2d 827)
   Barnes, Judge.

On November 11, 1999, while working as a cashier at the Houston County Publix Supermarket, Martha Johnson fell as she was hurrying down a store aisle. Johnson fractured her leg in the fall and subsequently filed a claim for workers’ compensation benefits.

The administrative law judge ruled that Johnson’s injuries arose out of her employment and awarded her income and disability benefits. The ALJ’s award was affirmed by the Appellate Division of the State Board of Workers’ Compensation. On appeal, however, the Superior Court of Houston County reversed the Board’s decision. This court granted Johnson’s application for discretionary review, and we reverse.

The superior court and this court must affirm the decision of the Board if any evidence supports it.

On appeal of an award or denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division’s findings of fact, and when sitting as an appellate body, it is bound by the “any evidence” standard of review and is not authorized to substitute its judgment as to weight of the evidence or the credibility of the witnesses. [Cit.]

Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997). Further, in reviewing a workers’ compensation award, we must construe the evidence in the light most favorable to the prevailing party. Hallisey v. Fort Howard Paper Co., 268 Ga. 57, 59 (1) (484 SE2d 653) (1997).

The ALJ and Board found that Johnson’s injury was compensable. The parties stipulated the facts, including the fact that Johnson was in the scope and course of her employment when she fell, but Publix argued that her fall did not “arise out of” her employment. The stipulated facts show that the grocery store was closing in 30 minutes, and Johnson locked but did not close out her cash register so she would be available to check out customers if needed. She then reshelved items and, with her supervisor’s permission, picked up some personal items. She was walking quickly and looking ahead for items left on the floor, as all Publix employees were encouraged to do, when she fell and broke her leg. The ALJ and Board concluded that the fall arose out of her employment and was therefore compensable.

In reversing the Board’s decision that Johnson’s injury was compensable, the superior court found two cases dispositive: Borden Foods Co. v. Dorsey, 112 Ga. App. 838 (146 SE2d 532) (1965), and Prudential Bank v. Moore, 219 Ga. App. 847 (467 SE2d 7) (1996). It further held:

As [with] the claimant in Borden Foods, Appellee was walking at the time of the fall; she did not fall over anything and she only hit the floor when she fell. “[T]he injury she sustained as a result [of the fall] was no greater than it would have been had she suffered a similar fall onto a hard surface at any place other than on the employer’s premises.” Borden Foods, supra at p. 840. The floor “is a structural hazard that the claimant is equally exposed to apart from her employment. An accident does not arise out of employment when it ‘cannot be fairly traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work. . . .’” Prudential Bank, supra at p. 848.

The superior court then concluded that “there was simply no evidence for the Board to conclude that Appellee’s injuries were the result of anything other than an idiopathic fall which, by definition, did not arise out of Appellee’s employment.”

“Physical contact with some object is not necessary in order for the employee to sustain an accident within the meaning of the Work[ers’] Compensation Law.” Orkin Exterminating Co. v. Wright, 92 Ga. App. 224, 225 (88 SE2d 205) (1955).

Borden Foods held that a compensable injury must result from some peculiar danger to which the work exposed the employee, citing Hartford Accident &c. Co. v. Cox, 61 Ga. App. 420 (6 SE2d 189) (1939). This court subsequently held, however, that, “to be compensable, injuries do not have to arise from something peculiar to the employment,” and overruled Hartford “and any other decisions of this court which hold that the danger must be peculiar to the work.” (Punctuation omitted.) Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. 566 (263 SE2d 455) (1979). Instead, “fw]here the duties of an employee entail his presence (at a place and a time), the claim for an injury there occurring is not to be barred because it results from a risk common to all others . . . ,” (punctuation omitted) id. at 567, a concept that came to be known as the “positional risk doctrine.” While subsequent cases have cited Borden Foods for the proposition that there must be a causal connection between the employment and the injury (such as the special concurrence in Labelle v. Lister, 192 Ga. App. 464 (385 SE2d 118) (1989)), its requirement of a “peculiar danger” is no longer good law and was overruled by Nat. Fire Ins. Co. v. Edwards, supra, 152 Ga. App. 566.

In fact, Judge Ruffin’s recent opinion in DeKalb Collision Center v. Foster, 254 Ga. App. 477, 480 (562 SE2d 740) (2002), notes that the “positional risk doctrine” set out by the whole court in Nat. Fire Ins. Co. v. Edwards has been inconsistently applied, citing the decision in Prudential Bank v. Moore, supra, among others.

Under the “positional risk doctrine,” Johnson’s claim is compensable. If she had not been working, she would not have been hurrying through the aisles so she could be available to check out more customers if needed. She would not have been on the lookout for items left on the floor, as her employer expected. This evidence supports the ALJ’s conclusion that the fall arose out of Johnson’s employment.

At any rate, the “positional risk doctrine” has not been used before to present additional barriers to an employee who falls at work. See, e.g., Rockwell v. Lockheed Martin Corp., 248 Ga. App. 73 (545 SE2d 121) (2001) (Act applies to fall in parking lot). Rather, the doctrine has been used to address situations outside the work norm. See, e.g., Nat. Fire, supra (tornado caused a wall to fall on an employee); DeKalb Collision Center, supra (employee died in a fight); Booth v. Essex Ins. Co., 231 Ga. App. 542 (498 SE2d 528) (1997) (employee murdered by a resident in an alcohol recovery residence); Olde South Custom Landscaping v. Mathis, 229 Ga. App. 316 (494 SE2d 14) (1997) (employee injured when stopped to assist stranded motorists); Walsh Constr. Co. v. Hamilton, 185 Ga. App. 105 (363 SE2d 301) (1987) (employee injured in fight before work began).

Additionally, the decision in Prudential Bank, which relies heavily on Borden Foods, incorrectly states that U. S. Casualty v. Richardson, 75 Ga. App. 496 (43 SE2d 793) (1947), stands for the proposition that an idiopathic fall is compensable only when the claimant strikes a work-related object. While the claimant there did strike a work-related object, the court noted with approval that “a majority of the courts, American and English, hold that, if the injury was due to the fall, the employer is liable, even though the fall was caused by a preexisting idiopathic condition.” (Punctuation omitted.) Id. at 500.

Based on the foregoing, we therefore overrule Prudential Bank v. Moore, supra, 219 Ga. App. 847, because it relied on Borden Foods, which was overruled in substance before Prudential Bank was decided, by Nat. Fire Ins. Co. v. Edwards, supra, 152 Ga. App. 566.

The appellees argue strenuously that no evidence supports the ALJ’s factual conclusions that Johnson fell because of “the natural slipperiness of the terrazzo” floor, and that was slippery even when not waxed as this floor was. The ALJ held that Johnson’s injury was compensable because she was on a “slick surface” when she fell. The parties stipulated, however, that the store manager said the floor was not slippery at the time of the fall, and no evidence shows otherwise. Whether or not this observation was within the realm of common knowledge, it is a red herring, and unnecessary to a finding that Johnson’s injury is compensable. Even without it, “any evidence” supports the finding that the fall arose from Johnson’s work, based simply on the fact that Johnson was hurrying to do her job when she fell.

“A liberal construction must be given to effectuate the humane purposes for which the Workers’ Compensation Act was enacted.” (Citations and punctuation omitted.) Travelers Ins. Co. v. Southern Electric, 209 Ga. App. 718, 719 (1) (434 SE2d 507) (1993). Therefore we reverse the judgment of the superior court.

Judgment reversed.

Eldridge, Miller, Ellington, Phipps and Mikell, JJ, concur. Blackburn, C. J., Johnson, P. J., and Smith, P. J., concur in the judgment only. Pope, P. J., Andrews, P. J., and Ruffin, J., dissent.

POPE, Presiding Judge,

dissenting.

I appreciate the majority’s efforts to clarify the law on this issue, and thus agree that to the extent Prudential Bank v. Moore, 219 Ga. App. 847 (467 SE2d 7) (1996), could be construed as relying upon the “peculiar risk” doctrine, it should be overruled. This Court has determined that the appropriate test for determining whether an incident arises out of employment under the Workers’ Compensation Act is instead the “positional risk” doctrine. Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 568 (1) (263 SE2d 455) (1979). But I must respectfully dissent from the majority opinion because I do not believe that Johnson would be entitled to compensation under that doctrine.

Although the administrative law judge drew very definite conclusions about the condition of the Publix terrazzo flooring, there was no evidence in the record to support these conclusions. There was no evidence regarding the nature of terrazzo flooring, the methods of cleaning or the slickness of its surface relative to other flooring. In fact, the only evidence regarding the state of the flooring was that it had been waxed at some unknown point in time and the store manager’s uncontradicted opinion that it was not slippery at the time of the fall. It is apparent that the ALJ drew the conclusions regarding the properties of terrazzo flooring from independent knowledge or experience.

While a trial judge is entitled to take judicial notice of certain matters, such notice is limited to matters that are indisputably of common knowledge:

Under Georgia law, courts may take judicial notice of “matters of public knowledge . . . without the introduction of proof.” [OCGA § 24-1-4.] The rule permits courts to judicially notice “that which is within the knowledge of most men. The test is (1) whether the fact is one of common, everyday knowledge that all men of average intelligence are presumed to know, and (2) whether it is certain and indisputable.”

(Footnotes omitted.) SEC, Inc. v. Puckett, 252 Ga. App. 422, 425 (555 SE2d 198) (2001). I cannot say that the natural properties of terrazzo flooring in comparison with other flooring surfaces noted by the ALJ are within the common, everyday knowledge of the average man or that those properties are certain and indisputable. Compare, e.g., Wilkinson v. Rich’s, Inc., 77 Ga. App. 239, 244 (1) (48 SE2d 552) (1948) (finding that it is a matter of common knowledge that rugs have a tendency to slip).

Nor do I find that the ALJ’s conclusions fall under the “common sense rule” of presumptive evidence defined under OCGA § 24-1-1 (6) and upon which Johnson relies. See Tierce v. State, 122 Ga. App. 845, 849 (178 SE2d 913) (1970) (Evans, J, concurring specially). The only evidence regarding the state of the terrazzo flooring on the day of the accident was the manager’s opinion that it was not slippery; thus, the evidence does not support the ALJ’s presumption that it was. See generally Keating v. Dept. of Natural Resources, 140 Ga. App. 796, 799 (3) (232 SE2d 84) (1976). Accordingly, the superior court could properly find that there was no evidence to support the ALJ’s findings that the fall was caused specifically by the slickness of the flooring.

The issue then becomes whether the ALJ and the appellate division nevertheless correctly concluded that Johnson’s fall arose out of her employment, entitling her to compensation. To be compensable under the Workers’ Compensation Act, an injury must occur in the course of the employment and must also arise out of the employment. OCGA § 34-9-1 (4). Publix concedes that the fall occurred in the course of Johnson’s employment, but disputes that it arose out of her employment.

“An injury arises out of the employment when, considering all the circumstances, there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.” (Citation and punctuation omitted.) Betts v. Med-Cross Imaging Center, 246 Ga. App. 873, 876 (1) (542 SE2d 611) (2001). Here, Johnson has the burden of showing the causal connection. Hulbert v. Domino’s Pizza, 239 Ga. App. 370, 372 (2) (521 SE2d 43) (1999). To make that connection Johnson was required to show that the causative hazard was

incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service. The injuries, however, need not arise from something peculiar to the employment. . . .

(Citation and punctuation omitted.) Id. at 372-373 (2).

The “positional risk doctrine” adopted by this Court provides that “[w]here the duties of an employee entail his presence (at a place and a time), the claim for an injury there occurring is not to be barred because it results from a risk common to all others unless it is also common to the general public without regard to such conditions, and independently of place, employment or pursuit.” (Citations and punctuation omitted; emphasis supplied.) Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. at 567 (1).

In reviewing the record, the superior court concluded that there was no evidence to show that Johnson’s “injuries were the result of anything other than an idiopathic fall which, by definition, did not arise out of [her] employment.” The term “idiopathic” is defined as “arising spontaneously or from an obscure or unknown cause” or as “peculiar to the individual.” Merriam Webster’s Collegiate Dictionary (10th ed. 1993). Here, there is no evidence to show what caused the fall other than the manager’s statement that Johnson said that she had tripped over her own feet. Although Johnson denied making such a statement, there is no evidence to connect the cause of the fall to the floor, or to any other aspect of Johnson’s employment.

Under the positional risk doctrine, an employee must show that the work brought him into the range of danger:

This theory is that for the injury to be compensable it is only necessary for the claimant to prove that his work brought him within range of the danger by requiring his presence in the locale when the peril struck, even though any other person present would have also been injured irrespective of his employment.

Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. at 567. But where, as here, there is no evidence that the fall resulted from any cause that could not have happened anywhere, under any conditions, at any time, there is no causal connection. Thus, I would affirm the decision of the superior court because Johnson failed to show any causal connection between her work and her injuries.

Decided July 16, 2002

Boston Passante, Russell M. Boston, Lauren L. Benedict, for appellant.

Schenck & Associates, Michael H. Friedman, for appellees.

I am authorized to state that Presiding Judge Andrews and Judge Ruffin join in this dissent.

       The term “in the course of” employment refers to “time, place and circumstances under which the accident took place.” (Punctuation omitted.) State Dept. of Labor v. Yates, 131 Ga. App. 71, 72 (205 SE2d 36) (1974).