text:
    A91A0243.
    BRANDYWINE TOWNHOUSES, INC. v. MORRISON. WEEMS v. BRANDYWINE TOWNHOUSES, INC.
    A91A0436.
    (408 SE2d 422)
   Pope, Judge.

Plaintiffs Robin Weems and Gitonia V. Morrison were tenants of apartments owned by defendant Brandywine Townhouses, Inc. On Sunday, December 6, 1987, Morrison took a bath in the bathroom of her apartment that was located directly above the kitchen. When she went downstairs to the kitchen, she found a large puddle of water on her kitchen floor and noticed that the globe of the kitchen light fixture contained water. She removed the water from her floor that evening. The next morning she called the office of the resident manager and told the person that answered the phone that she “had a leak from [her] bathroom and . . . water in [her] globe, and ... to have Al come around to the house and check it out to get the water out of the globe.” The undisputed evidence shows that maintenance personnel went to Morrison’s apartment on December 7, 1987, with a work order that read “bathroom leaking — check both.” The maintenance personnel left a copy of their work order in Morrison’s apartment with the notation that they did not find any leaks and to call again between 9:00 and 4:00.

When Morrison returned home she turned on the kitchen light and discovered that the water was still in the globe of her kitchen light fixture. Weems, a friend of Morrison, called shortly after Morrison arrived home from work and Morrison told her that water was in the globe of her kitchen light fixture. Weems told Morrison that the same thing had happened in her apartment before, she knew how to remove the water, and that she would help Morrison remove the water.

After Weems arrived at Morrison’s apartment, Weems stood on a table so she would be high enough to reach the light fixture. Morrison held Weems’ legs to steady her. Without turning off the kitchen light, Weems held the globe with one hand and unscrewed the screws securing the fixture with the other hand. Neither Morrison nor Weems knows exactly what happened, but it is known that hot water from the globe spilled on both Morrison and Weems causing them to suffer second degree burns and that the globe fell and broke on the kitchen floor.

Both Morrison and Weems brought actions against defendant for their injuries. Defendant moved for summary judgment in both cases. The trial court consolidated the cases for purposes of deciding the summary judgment motions. The trial court denied the defendant’s motion against Morrison, but granted the defendant’s motion against Weems. Weems appeals the trial court’s grant of summary judgment against her. The defendant filed an interlocutory appeal from the trial court’s denial of summary judgment against Morrison. This court granted the defendant’s motion for interlocutory appeal and consolidated the cases for review.

Case No. A91A0243

1. Defendant contends that the trial court erred in denying its motion for summary judgment as to Morrison because Morrison had superior knowledge of the defect causing her injury and she assumed the risk of her injury. We find these enumerations to be without merit.

“[O]n motion for summary judgment the evidence must be construed most strongly against the movant and the party opposing the motion is entitled to all inferences which may fairly and reasonably be drawn in support of his case.” Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, 815 (354 SE2d 13) (1987). Construing the evidence in the light most favorable to Morrison, Morrison reported two patent defects to the defendant. Although there is some dispute concerning whether the defendant was made aware by Morrison that there was water in the globe of her kitchen light fixture, the landlord indisputably had notice that Morrison’s bathroom was leaking. A reasonable inspection of a leaking bathroom should have included examination of the area underneath the bathroom, the kitchen ceiling. If defendant had examined the kitchen ceiling, the patent defect of water in the kitchen light fixture globe would have been revealed. The only evidence presented to the trial court showed that the hazards associated with the water in the globe of the light fixture heating to a temperature that would cause second degree burns while the fixture was in use were not open and obvious. When a landlord is put on notice of a patent defect, he is also charged with knowledge of any latent dangerous condition that a reasonable inspection would have revealed. If he does not make any necessary repairs within a reasonable time, he can be held liable for any injuries resulting from the dangerous condition. Carmack v. Oglethorpe Co., 114 Ga. App. 512, 516 (151 SE2d 799) (1966), rev’d on other grounds, 223 Ga. 128 (153 SE2d 541) (1967); Canfield v. Howard, 109 Ga. App. 566 (3) (136 SE2d 431) (1964). Questions concerning whether a reasonable inspection would have revealed the latent dangerous condition associated with water in the globe of Morrison’s kitchen light fixture, whether the landlord had been given a reasonable time to make repairs, and whether Morrison was either contributorily negligent or had assumed the risk of her injuries are all questions that should properly be submitted to a jury in this case. “Issues of negligence, including the related issues of assumption of the risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence and comparative negligence, are ordinarily not susceptible of summary adjudication whether for or against the plaintiff or the defendant, but must be resolved by a trial in the ordinary manner.” (Emphasis omitted.) Thompson v. Crownover, 259 Ga. 126, 129 (5) (381 SE2d 283) (1989), quoting Wakefield v. A. R. Winter Co., 121 Ga. App. 259 (174 SE2d 178) (1970). We find no error in the trial court’s denial of defendant’s motion for summary judgment.

Case No. A91A0436

2. Weems contends that the trial court erroneously found that as a matter of law she assumed the risk of her injury. We must agree.

The law in Georgia is clear that the rights of an invitee “to have the landlord [of the premises] exercise due care for their safety is derived from the right of the tenant to have the landlord exercise such care toward him. They ‘stand in his shoes.’ ” Yates v. Crumbley, 116 Ga. App. 366, 368 (157 SE2d 295) (1967). For the same reasons that the trial court properly denied defendant’s motion for summary judgment against Morrison, the trial court should have denied the defendant’s motion for summary judgment against Weems. “Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause.” Menendez v. Jewett, 196 Ga. App. 565, 566 (1) (396 SE2d 294) (1990). Although a jury may find that Weems’ negligence was the sole proximate cause of her injuries, because the defendant may be charged with knowledge of the latent dangerous condition of the water heating in the globe, a jury could find that defendant was also negligent and defendant’s negligence contributed to Weems’ injuries. “[W]hether or not [a landlord] breached his duty of care to invitees, and whether an invitee exercised reasonable care for her own safety are normally for a jury. . . .” Pound v. Augusta Nat., Inc., 158 Ga. App. 166, 167 (279 SE2d 342) (1981). For that reason, we must reverse the trial court’s grant of summary judgment for defendant against Weems.

Decided June 11, 1991

Reconsideration denied July 12, 1991

William D. Temple, Sr., for Brandywine.

Dietrick, Evans, Scholz & Williams, Paul A. Dietrich, for Morrison & Weems.

Judgment affirmed in Case No. A91A0243. Judgment reversed in Case No. A91A0436. Cooper, J., concurs.

Birdsong, P. J., concurs in judgments only.

       While there is some dispute concerning whether Morrison spoke to a person in the resident manager’s office or left a message on an answering machine, this is not a material fact that would effect whether the trial court properly ruled on defendant’s motions for summary judgment.

       The obvious danger associated with removing water from an area in which there is a live electrical current is electrocution. There is no evidence, however, that an electrical short or shock contributed to or caused any of Morrison’s or Weems’ injuries. In fact, both Morrison and Weems submitted the affidavit of an expert who opined that under the conditions existing at the time Weems removed the globe of the kitchen light fixture, there was no danger that Weems would have been shocked.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A91A0301.
    MALLORY v. PIGGLY WIGGLY SOUTHERN, INC.
    (408 SE2d 443)
   Pope, Judge.

Plaintiff appeals the trial court’s grant of summary judgment to defendant in this slip and fall case.

1. “[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance. ...” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). “Thus, in order for a defendant to successfully move for summary judgment in a foreign substance slip and fall case, it must come forward with evidence tending to show that (1) it had neither actual nor constructive knowledge of the foreign substance or that (2) plaintiff had knowledge of the substance.” Baggs v. Chatham County Hosp. Auth., 187 Ga. App. 834, 836 (2) (371 SE2d 653) (1988).

In this case plaintiff alleges she slipped on an onion peel on the floor near the produce department of defendant’s store. The evidence in the record shows neither plaintiff nor defendant had actual knowledge of the onion peel prior to plaintiff’s fall. Thus, the ultimate issue to be resolved is whether the evidence in the record is sufficient to show that defendant had no constructive knowledge of the foreign substance. See generally Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga. App. 891 (318 SE2d 514) (1984).

“There are two different classes of [premises liability] cases which may be based on constructive knowledge. The first is that type where liability of the defendant is based on the fact that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard. [Cits.] . . . The second type of case is that based on the duty of the defendant to exercise reasonable care in inspecting and keeping the premises in safe condition. [Cits.] To sustain plaintiff’s cause of action in the latter case it is necessary that he prove ‘a period of time the dangerous condition has been allowed to exist. Without such (proof) it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.’ [Cit.]” Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (226 SE2d 142) (1976). See also Queen v. Kroger Co., 191 Ga. App. 249 (381 SE2d 413) (1989). Here, the defendant, as the movant for summary judgment, has the burden “to show that, as to its lack of constructive knowledge under either theory, no genuine issue remained.” (Italics omitted.) Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988).

“Defendant in this case successfully pierced plaintiff’s complaint as to each of these two theories by which constructive knowledge may be shown. Although [defendant’s employee was] nearby, the undisputed evidence showed [he was] not facing the area where the [onion peel] had [been on] the floor. No evidence was presented by which it could be determined that the condition had existed for a sufficient period of time to afford defendant a reasonable opportunity to discover and remove the hazard. ... [No evidence was presented to show that defendant’s employee, even though located nearby, actually had a view of the affected area.] Under the circumstances, the mere proximity of the [employee] to the spot where plaintiff fell presents no issue of constructive knowledge.” Queen v. Kroger Co., supra at 250. “[Plaintiff’s] sole avenue of possible recovery[, therefore,] is one in which constructive knowledge on the part of [defendant] is premised upon [defendant’s] failure to exercise reasonable care in inspecting and keeping the premises in safe condition. The affidavits [and depositions] executed by [defendant’s employees] effectively negate recovery on that theory.” Filmore v. Fulton-DeKalb Hosp. Auth., supra at 893.

“ ‘A lack of actionable constructive knowledge is normally established in [exercising reasonable care in inspecting and keeping the premises in safe condition] cases by evidence of compliance with reasonable inspection and/or cleaning procedures. (Cits.) . . .’ [Cit.]” Baggs v. Chatham County Hosp. Auth., supra at 836 (3). Evidence establishing an adherence to customary inspection and cleaning procedures on the specific day in question is required, while proof of the mere existence of such customary procedures is insufficient. Food Giant v. Cooke, supra at 255.

Defendant provided evidence of its inspection and cleaning procedures and evidence that there had been adherence to those procedures the day plaintiff fell. Defendant’s store manager, Randall Daniels, testified he personally patrolled each aisle of the store every one- and-a-half hours on the day in question. He further testified the floors in and around the produce department were thoroughly swept approximately three or four times during business hours each day and that this procedure was followed the day plaintiff fell. Moreover, the assistant produce manager, Shane Jones, testified he swept in and around the produce area at least every 30 minutes while on duty at defendant’s store and that this procedure was followed the day plaintiff fell. Jones further testified he personally swept the area where plaintiff fell approximately five minutes before the fall and that the floor was free of debris at that time. This evidence of cleaning and inspection procedures, which were followed by defendant’s employees the day plaintiff fell, is sufficient to pierce plaintiff’s theory that defendant had constructive knowledge of the onion peel because it failed to exercise reasonable care in inspecting and cleaning the premises. “It is well established that a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous. [Cits.] Where it appears a foreign object had ‘not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.’ Jones v. West End Theatre Co., 94 Ga. App. 299, 303 (94 SE2d 135) (1956).” Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178) (1987). Plaintiff’s allegation that she saw other debris on the floor immediately after she fell is not inconsistent with the testimony that the onion peel was not present on the floor five minutes earlier. It is foreseeable that debris from produce would fall to the floor of the produce department when customers handled the produce during ordinary shopping, and that this could occur within five minutes after an inspection and sweeping.

2. Plaintiff, relying on cases applying the “contradictory testimony rule,” also argues that inconsistencies in Jones’ testimony preeludes summary judgment in favor of defendant. The “contradictory testimony rule” applies to testimony presented in support or response to a motion for summary judgment and “provides that ‘a party’s self-conflicting testimony is to be construed against him. . . .’ Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383) [(1987)]; Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) [(1986)]. If a reasonable explanation is offered for the contradiction, however, the inconsistency will not be construed against the party witness. The burden rests on the party giving the contradictory testimony to tender the reasonable explanation, and whether this has been done is an issue of law. Gentile, supra at 583. But if no explanation is given for the conflict in testimony or ‘a party’s explanation ... is determined to be unreasonable, the trial court must eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment, “ ‘as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.’ ” ’ Id.” Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 755 (388 SE2d 909) (1989).

The deposition and affidavit testimony of defendant’s assistant produce manager, Jones, contains inconsistencies for which the record shows no reasonable explanation. One inconsistency concerns the order of events surrounding Jones’ sweeping the produce department floor five minutes before plaintiff fell. There are conflicts as to which area in the produce department he swept first and as to when he spoke with a fellow employee during that time. In both his affidavit and his deposition, however, Jones is unequivocal that he swept the area in question just minutes before plaintiff fell. Thus, this case is distinguishable from Stone, supra, relied on by plaintiff, in which the appellee’s store manager’s inconsistent statements cast doubt on whether the manager had indeed inspected the area where the plaintiff fell. See id. at 754. In the instant case, there are no inconsistencies as to whether Jones swept the produce area just prior to plaintiff’s fall. Conflicts in the record as to which area of the produce department he swept first and to when he spoke to his fellow employee do not raise issues of material fact precluding a grant of summary judgment. The fact remains undisputed that the area in question was swept.

The other inconsistency found in Jones’ affidavit and deposition testimony involves whether Jones was aware of plaintiff’s fall at the time it occurred. Whether Jones knew plaintiff fell does not involve a material fact in this case; it does not prove or disprove constructive knowledge on his part. Again, no factual issue is raised by the inconsistencies precluding the grant of summary judgment.

3. Finally, plaintiff contends that contradictions between Jones’ testimony and the testimony of another employee precludes summary judgment in defendant’s favor. The law is clear in Georgia that “ ‘[w]here a question of credibility arises as to a material issue, summary judgment should not be granted. [Cits.]’ [Cits.]” (Emphasis supplied.) Ash v. Spear, 137 Ga. App. 12, 13 (223 SE2d 26) (1975). See also Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 205 (3) (345 SE2d 904) (1986); Cross v. Cablevision of Augusta, 172 Ga. App. 530, 531 (323 SE2d 713) (1984) (“the testimony of defendant’s employee witnesses having been contradicted as to a material issue their credibility as to all matters is for the jury”). The inconsistencies between Jones’ testimony and that of his fellow employee involve whether Jones knew plaintiff fell and the circumstances surrounding Jones’ sweeping just prior to the fall, not whether Jones had swept or not. While the record shows there are contradictions between Jones’ testimony and that of his fellow employee as to these matters, as previously discussed, these contradictions do not involve issues of material fact, and as such, do not preclude summary judgment on the issue of defendant’s constructive knowledge. Thus, the trial court’s grant of defendant’s motion for summary judgment was proper.

Decided June 24, 1991

Reconsideration denied July 12, 1991

Reynolds & McArthur, Charles M. Cork III, for appellant.

Martin, Snow, Grant & Napier, William H. Larsen, Jay C. Traynham, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0461.
    CHARLES EVANS NISSAN, INC. v. TRUSSELL FORD-MAZDA, INC.
    (408 SE2d 419)
   Pope, Judge.

This appeal arises from a claim for breach of express warranty in the sale of a used automobile. Both parties are automobile dealerships. On June 14, 1986, defendant/appellant Charles Evans Nissan, Inc. d/b/a Charles Evans, Inc. purchased a 1985 Ford Crown Victoria automobile from K & W Auto Sales in LaGrange, Georgia. Defendant paid $7,000 for the automobile. At the time the defendant purchased the automobile, it received an odometer mileage statement signed by Kyle Watson of K & W Auto Sales certifying that the mileage on the automobile was 36,135 miles. The undisputed evidence shows that when this automobile was purchased by defendant, it was inspected by the person responsible for buying used cars for the defendant and found to be in a condition consistent with the mileage certified on the odometer statement defendant received from Watson.

Plaintiff/appellee Trussell Ford-Mazda, Inc., then purchased the same automobile from the defendant for the amount of $7,500. At the time of the sale, defendant gave to plaintiff a document titled “Affidavit/Sale of Motor Vehicle.” The affidavit contained a statement in which the defendant certified “to the best of [its] knowledge that the odometer reading is 36,139 and reflects the actual mileage of the vehicle. . . .” The automobile was inspected by plaintiff’s used car manager and found to be in a condition consistent with the mileage statement contained in the affidavit received from the defendant.

On March 13,1987, plaintiff sold the automobile to a third party. When plaintiff attempted to register and title the automobile for the third party, plaintiff was notified by the Georgia Department of Revenue that the title to the automobile had been altered and that further certification of the odometer was necessary. On or about July 14, 1987, plaintiff received a photocopy of an odometer statement from a prior owner of the automobile reflecting that at the time it sold the automobile in May of 1986, the odometer reading was 85,862. When plaintiff notified the third party of the discrepancy, the third party demanded the return of all monies. The plaintiff returned all monies to the third party and filed a two-count complaint against the defendant.

The first count of the complaint alleged breach of warranty and the second count a violation of the Georgia Odometer Act. On May 10, 1990, the defendant filed a Motion for Summary Judgment on both counts of the complaint. On June 14, 1990, plaintiff amended the complaint to dismiss the count concerning the Georgia Odometer Act and substituted a claim for rescission of the contract for the sale of the automobile. On that same day, plaintiff filed a Cross-Motion for Partial Summary Judgment on the rescission count. On July 19, 1990, the plaintiff filed a Cross-Motion for Partial Summary Judgment on the breach of warranty count. On July 30, 1990, the defendant filed a Motion for Summary Judgment on the rescission count. The trial court granted the defendant’s motion for summary judgment on the rescission count and granted the plaintiff’s motion for summary judgment on the breach of warranty count. The defendant appeals the trial court’s ruling that the plaintiff is entitled to judgment as a matter of law on its breach of warranty claim against the defendant.

The plaintiff’s warranty claim is based strictly on the defendant’s alleged breach of an express warranty concerning the mileage of the automobile contained in the affidavit received by the plaintiff from the defendant. With regard to this claim, there were no disputed questions of material fact and the trial court was required only to interpret the provisions of the affidavit. Express warranties under the Uniform Commercial Code of Georgia are governed by OCGA § 11-2-313. That statute provides in pertinent part: “(1) Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise, (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” (Indentions omitted.)

Decided May 30, 1991

Reconsideration denied July 12, 1991

Lane, O’Brien & Coburn, Richard L. Ormand, Lance & Associ ates, Forrest J. Lance, D. Suzanne Moon, for appellant.

It is undisputed that the number of miles on a used automobile generally becomes a part of the basis of the bargain when the automobile is sold. In order for the defendant to have created an express warranty regarding the number of miles on the automobile, pursuant to OCGA § 11-2-313 (1), however, it would have had to make an affirmation of fact, promise or described the automobile as having only 36,139 miles. The only evidence that the plaintiff offers that the defendant made such an affirmation, promise or description is the statement concerning the odometer contained in the affidavit. The defendant’s statement concerning the odometer reading is qualified by the language “to the best of my knowledge.” In that statement the defendant neither affirmed, promised or described the true mileage of the automobile as being 36,139, but merely stated to the best of the seller’s knowledge the odometer reflected the true mileage. Furthermore, the undisputed evidence shows that when the defendant sold the plaintiff the car and delivered the affidavit that the defendant had no reason to believe that the actual mileage of the automobile was different than the mileage reflected on the odometer. Plaintiff’s sole contention in its warranty claim is that the defendant’s statement concerning the odometer contained in the affidavit was not accurate. The defendant did not breach any express warranty concerning the actual mileage of the automobile, however, because at the time it made the statement contained in the affidavit it had no knowledge or any reason to believe that the true mileage differed from the mileage shown on the odometer. For that reason, the judgment of the trial court granting the plaintiff summary judgment on the breach of warranty count must be reversed. See Troutt v. Nash AMC/Jeep, 157 Ga. App. 399 (1) (278 SE2d 54) (1981); accord Dirico v. Fuqua Chrysler-Plymouth, 562 NE2d 756 (Ind. App. 3d Dist. 1990).

Judgment reversed. Birdsong, P. J., and Cooper, J., concur.

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellee.


text:
    A91A0606.
    TRAMMELL v. MARTIN.
    (408 SE2d 477)
   Pope, Judge.

Plaintiff James C. Trammell filed a request under the Open Records Act with Clayton County, Georgia, asking for “copies of all attorney fees billed to [the] county by Foster & Foster, P. C. for fiscal year ending 30 June, 1990.” A representative of the county responded to plaintiff by letter acknowledging that the county would comply with his request but informing him each bill would have to be reviewed by an attorney in the firm Foster & Foster to determine if it contained information exempt from disclosure and that he would be charged a $90 per hour attorney fee for this service.

Pursuant to OCGA § 50-18-73, plaintiff filed a complaint against the county to enforce compliance with the Act, alleging, inter alia, that the attorney fee the county proposed to charge him was unlawful and in excess of those costs allowed by OCGA § 50-18-71. Pursuant to a hearing, the trial court ruled the county could not charge plaintiff any fees from attorneys for inspecting and screening the requested documents for information exempt from disclosure. The trial court directed plaintiff to file another request with the county and ordered the county to comply with that request within ten days. Accordingly, plaintiff filed another written request, this time requesting: “Detailed statement of all billing to the County for legal services rendered by the law firm of Foster & Foster and any other billing to the County by any other person or firm for fiscal year ending June 30, 1990.” In response, the county filed with the court a set of documents containing 235 pages pertaining to bills submitted by Foster & Foster and smother set of documents containing 5,364 pages for all other legal bills submitted to the county, including bills for indigent defense fees.

The copying charges for the Foster & Foster bills amounted to $58.75 and the copying charges for the remaining bills amount to $2,231.89. Plaintiff objected to the copying costs and a hearing was held to determine whether plaintiff could rightfully be charged the full amount. After the hearing, a judgment was entered finding the county’s response to plaintiff’s second written request was a reasonable interpretation of the documents requested therein and finding plaintiff liable to the county in the full amount charged. Plaintiff appeals.

1. Plaintiff argues the county knew or should have known he did not want copies of indigent defense bills. The clear and unambiguous language of plaintiff’s second written request for documents, however, asked not only for copies of bills from Foster & Foster but also “any other legal billing to the County by any other person or firm. . . .” At the time plaintiff submitted his second request, he was represented by counsel who had appeared before the trial court to argue plaintiff’s interpretation of the Open Records Act. In addition to providing members of the public with the right to obtain copies of certain public records (OCGA § 50-18-71), the Act also provides them with the right to inspect those documents. OCGA § 50-18-71 (a). As the trial court noted in its judgment, the plaintiff ordered copies of the documents described in his request “rather than taking the route open to him under the law of inspecting the records and then selecting only those that he felt compelled to possess.” Because plaintiff requested the documents to be copied, the trial court did not err in ordering him to pay those copying costs authorized by OCGA § 50-18-71.

Subsection (e) of OCGA § 50-18-71 requires an agency to “utilize the most economical means available for providing copies of public records.” Evidence was presented at the hearing that the county, in the regular course of business, compiled and published every six months a summary of the billings from attorneys for representation of adult indigent defendants. Billings for juvenile defendants were not included in the compilation. Although plaintiff’s request asked for a “detailed statement” of billings, insufficient evidence was presented to support a finding that the regularly prepared summary was not responsive to plaintiff’s request. No evidence was presented concerning the cost of copying the regularly prepared publication, though it would have undoubtedly cost considerably less than the charges the county sought to bill the plaintiff. Thus, the record does not establish that the county used the most economical means for providing copies of at least part of the information requested by plaintiff. We reverse that portion of the judgment ordering plaintiff to pay the copying charges for the adult indigent defense billings and remand for further determination of the most economical cost for providing that information to plaintiff.

2. The order permitted plaintiff to take possession of the copies of bills from Foster & Foster upon payment of the $58.75 copying charge. The evidence at the hearing showed these bills had been copied after they were reviewed by the county attorney to determine if they contained information exempt from disclosure under the Open Records Act. Plaintiff argues the trial court erred in refusing to conduct an in camera inspection of those records the county attorney determined were exempt from disclosure.

Plaintiff argues an in camera inspection of documents is required by OCGA § 50-18-72 (e) (1), which states that information which would otherwise be exempt from disclosure because of the attorney-client privilege may be obtained “in a proceeding under Code Section 50-18-73 to prove justification or lack thereof in refusing disclosure of documents . . . provided the judge . . . shall first determine by an in camera examination that such disclosure would be relevant t>n that issue. ...” However, this is not a case in which the defendant refused disclosure of requested documents. Although plaintiff’s complaint alleged several instances of wrongful conduct or statutory violation against the defendant, the evidence showed only that defendant wrongly planned to charge plaintiff for attorney time required to review the requested documents for information exempt from disclosure. The trial court corrected this violation by ruling plaintiff could not be charged for that service since it was not a charge authorized under OCGA § 50-18-71. No issue of wrongful refusal to disclose documents is presented by this case and therefore the in camera inspection referred to in OCGA § 50-18-72 (e) (1) does not apply. We agree with the trial court that absent any specific objection to the exclusion of documents, it is not required to inspect the documents produced in response to plaintiff’s request. We find nothing in the Open Records Act which imposes a duty on the trial court to make a supervisory review of records disclosed under the Act.

Decided July 1, 1991

Reconsideration denied July 12, 1991

Sexton, Turner & Moody, Lee Sexton, for appellant.

Foster & Foster, Larry A. Foster, for appellee.

3. We deny defendant’s motion to impose damages for frivolous appeal.

Judgment affirmed in part and reversed in part with direction. Motion for damages denied.

Birdsong, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0763.
    BRUNO et al. v. EVANS et al.
    (408 SE2d 458)
   Birdsong, Presiding Judge.

Appellants/defendants appeal from a directed verdict declaring that they have no rights of ingress or egress across the property of appellees/plaintiffs, from a judgment in favor of appellees of $8,000 plus costs, and from the order of the trial court denying appellants’ motion for new trial.

Appellants gained access to their property by the “Major D Road” from purchase in 1983 until mid-1986. In the spring of 1986, appellants sought access to their property along the subject road, pathway, or trail (hereinafter road), and commenced certain bulldozing and grading on appellees’ property, without giving appellees notice.

The subject road runs off Highway 19, past a radio station, through appellees’ property, through wild-land property of Bill Hard-man or Crown Mountain South where the road crosses a stream at a location hereinafter referred to as “Ivy Cut,” and then through appellants’ wild-land property onward to the top of “Crown Mountain.” Prior to the 1986 roadwork, appellant Bruno could not get to appellants’ property along the subject road, because it crossed “Ivy Cut” and he had the wrong type of vehicle to traverse that ditch. Appellants offered testimony that a jeep, short-bed pickup, short car, or similar vehicle was required in order to cross the subject road at “Ivy Cut.” Appellees introduced certain testimonial evidence categorizing the subject road, at the time viewed in 1984 before grading, as a road, an old logging road or a pathway; the subject road being of “footpath” width in areas, impassable to a car, marked at some point with a rusty, old, gunshot sign saying “private driveway,” and being of an “unused” appearance.

During their roadwork, appellants placed a culvert where the road crossed “Ivy Cut.”.

Appellees brought suit against appellants based on the alleged damages caused by the former to the latter’s property, and seeking damages, temporary and permanent injunction, and declaratory judgment. The trial court directed verdict against appellants on the issue of access, ruling the road was not a public road and that appellants did not have a private way of access by virtue of the deeds. The jury returned a verdict against appellants in the amount of $8,000.

The record reflects the following chronology of events regarding the conveyance of the properties in issue. R. F. Edwards was the common grantor as to the two chains of title reaching to appellees/plaintiffs and to the appellants/defendants, respectively. The deed of property to Edwards made no mention of an easement and made no reference to the subject road or to any right therein. In May 1968, Edwards deeded a tract of land, being the alleged servient estate, by fee simple grant to Thomas V. Jones (one of appellees’ predecessors-in-title), without expressly reserving or retaining any right of access in himself to the conveyed property. In September 1968, Edwards deeded another tract of land, being the alleged dominant estate, to Warren and Mary Crawford (appellants’ predecessors-in-title), purporting to warrant ingress and egress to the grantees after Edwards already had deeded out the alleged servient property to Jones four months earlier. In September 1983, Warren and Mary Crawford deeded the alleged dominant estate to appellants/defendants. The deed included the following warranty: “Specifically warranting the right of ingress and egress into the above described property along the existing public road leading from U. S. Highway 19 across other property into the east side of the above described property.” However, this same deed made no mention of the rights of any third persons to use the subject road on appellants’ property to ingress or egress their own property. A few weeks later, Fred and Jennice Wilson deeded the alleged servient estate to appellees/plaintiffs. In the sales contract, the Wilsons warranted full right of ingress and egress to this estate via the existing road and provided for similar access by other downstream landowners through the estate. The warranty deed included, with somewhat greater specificity, a warranty of “full rights of ingress and egress ... by means of the existing road,” together with an accompanying provision for access of property owners to the “South and Southeast.” Held:

1. Appellees’ motion to transfer appeal to the Supreme Court is denied. Compare Bond v. Ray, 207 Ga. 559 (63 SE2d 399) and progeny with Graham v. Tallent, 235 Ga. 47 (218 SE2d 799).

2. Appellees’ motion for imposition of an award of damages for frivolous appeal is denied.

3. “A directed verdict is authorized when ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .’ [Cit.] Further, the evidence must be construed most favorably to the party opposing the motion.” Foreman v. Eastern Foods, 195 Ga. App. 332, 333 (1) (393 SE2d 695). “A directed verdict is proper whenever a plaintiff simply fails to prove his case.” Quinones v. Maier & Berkele, 192 Ga. App. 585, 587 (1) (385 SE2d 719), writ vacated, 259 Ga. 875 (390 SE2d 594). These standards will be applied in disposing of each of appellants’ enumerations of error, respecting the direction of a verdict by the trial court in favor of appellees. Regarding the enumeration asserting error by the trial court in failing to grant appellants’ motion for new trial, “the grant or denial of a motion for new trial is a matter within the sound discretion of the trial court and will not be disturbed if there is any evidence to authorize it,” and not contrary to law or justice. (Citations and punctuation omitted.) Parks v. Consolidated Freightways, 187 Ga. App. 576, 578 (3) (370 SE2d 827); see generally OCGA §§ 5-5-20; 5-5-25.

(a) Appellants assert the road in question was a public road by prescription. Regarding this issue, we find Jordan v. Way, 235 Ga. 496 (220 SE2d 258) to be controlling. Jordan, supra at 499 (4), provides inter alia that “[i]n addition, in order for a road to be declared a public one by prescription the public authorities must have accepted it or exercised dominion over it. Maintenance or repair can constitute such acceptance.” Under the precedent of Jordan, supra, use by the public of a road without acceptance of that road by legitimate public authority will not support a claim of public road by prescription. The purpose of this rule seems to be that public authority should not be held responsible or be compelled to assume duties for a road it has not accepted.

Appellants concede “there was no evidence of dedication [of the road] to the county, at least recent dedication,” however, they assert the trial court overlooked certain testimony in the record regarding acceptance. We have reviewed the cited testimony and find it does not suffice, as a matter of law, to create a jury issue regarding the acceptance by public authority of the subject road, particularly that portion thereof which is in issue in this case.

Further, appellants stated on the record “[t]here is no evidence in this case that the county ever worked that road.” Even assuming this response did not constitute an admission in judicio as to the fact therein asserted, it is clear from the trial court’s response that it considered appellants’ counsel to be acquiescing in its interpretation of the evidence regarding this issue. A party cannot complain on appeal of a judgment, order, or ruling that his own procedure or conduct aided in causing. West v. Nodvin, 196 Ga. App. 825, 829 (3) (e) (397 SE2d 567).

(b) In argument in support of enumerations of error 1, 3, and 5, appellants assert their deed warrants access to the highway, that appellees’ deed also warrants access, and thus appellees’ property seemingly is encumbered with an easement. Appellants support this broad assertion by arguing and citing authority that an easement may be created by “the doctrine of implied reservation by necessity.”

At the outset we find that to the extent any enumeration of error is not supported in the brief by citation of authority or argument it is deemed abandoned. Court of Appeals Rule 15 (c) (2).

The right of private way over another’s land may arise by implication of law when the right is necessary to the enjoyment of lands granted by the same owner. OCGA § 44-9-1. Thus, “[a] way of necessity arises in this State by implication of law under Code § 85-1401 [currently OCGA § 44-9-1] when the common owner sells the dominant estate first and retains the servient estate. The common owner is impliedly deemed to have granted an easement to pass over the servient estate. [Cit.] However, if the common owner sells the servient estate first [as happened in this case], he has deeded everything within his power to deed and retains no easement in the servient estate. Therefore, when the common grantor subsequently deeds the dominant estate to a third party, the third party can obtain no higher interest than that of the grantor and receives no easement over the servient estate.” Hasty v. Wilson, 223 Ga. 739, 748 (4) (158 SE2d 915); see generally 9 EGL Easements & Licenses, § 21 (1981 Rev.); Pindar, Ga. Real Estate Law & Proc., Easements & Licenses, § 8-16 (3d ed.); compare Srochi v. Postell, 206 Ga. 59, 62 (2) (55 SE2d 603). Accordingly, no easement by implication was created in this case.

Assuming arguendo, sequence of conveyance was not controlling in those instances where easement is created by implied reservation due to necessity, the result in this case remains the same. In these cases, a private way by implication is based on necessity and not convenience. Miller v. Slater, 182 Ga. 552, 557 (1) (186 SE 413); see Hasty, supra at 748; 9 EGL, supra at § 22. Moreover, “[a] reasonable necessity for a way must exist at the time of the severance to support the implication of a way of necessity.” (Emphasis supplied.) 28 CJS, Easements, § 35 (b). The record fails to establish the actual existence of such necessity at the time of the severance of the property by the common grantor.

4. Appellant claims the trial court erred by not charging the correct measure of damages for a trespass to real property. An objection to a charge in a civil case must be made after the court instructs the jury and before the jury returns a verdict; an objection made only at a charge conference is insufficient to preserve an issue for appeal. Sims v. Johnson, 185 Ga. App. 720 (365 SE2d 532). Following the charges, appellants’ counsel stated he had no objections or exceptions thereto. Accordingly, no charging errors have been preserved for appeal.

Moreover, assuming error had occurred, appellants while arguing no evidence was introduced to show a diminution in land value, asserted “[t]he other measure of damages is the cost to repair the actual damage done by the perpetrator.” Reversal generally is not an appropriate remedy for error aided by appellants’ own trial procedure or conduct. Nodvin, supra.

5. Appellants assert error in instructing on exemplary damages claiming there was no evidence to support such charge. By failing to object timely to these charges, appellant has failed to preserve this issue for appeal. Sims, supra. Accordingly, the enumeration of error as crafted is without merit.

Also, as the cause of action arose before July 1, 1987, the applicable exemplary damages statute is OCGA § 51-12-5. “ ‘While an award of punitive damages is authorized only where a tortfeasor’s conduct is of an aggravated nature, such an award may properly be based upon an aggravated tort involving only property rights.’ ” Annis v. Tomberlin &c. Assoc., 195 Ga. App. 27, 33 (5) (392 SE2d 717). “It is sufficient if the defendant[s’] acts were wanton or were done with a reckless disregard for or a conscious indifference to the rights of the plaintiff to use and enjoy his property. [Cit.]” Bowen v. Waters, 170 Ga. App. 65, 67 (2) (316 SE2d 497). There is some evidence to indicate appellants proceeded in this manner, and in doing so unnecessarily inflicted injury on appellees’ property. Thus, the jury’s award of exemplary damages is supported adequately by evidence of record. See Annis, supra; Bowen, supra. This result is not altered by the failure of the verdict to specify the basis for the award. We repeatedly have declined to speculate regarding the jury’s intent in announcing a particular verdict. Thomas v. Clark, 188 Ga. App. 606, 608 (1) (373 SE2d 668). And, by failing to object timely to the format or content of the jury verdict form, appellant has waived any objection to error arising therefrom. Fort &c. Enterprises v. Scrocca, 195 Ga. App. 554, 555 (3) (394 SE2d 364).

Decided June 28, 1991

Reconsideration denied July 12, 1991

Douglas E. Smith, B. Dean Grindle, Jr., for appellants.

Hulsey, Oliver & Mahar, Gregory W. Blount, for appellees.

Appellants’ other claims of error are without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0790.
    TALLEY v. THE STATE.
    (408 SE2d 463)
   Birdsong, Presiding Judge.

Janice Diane Talley appeals the judgment of conviction of two counts of violation of the Georgia Controlled Substances Act by possessing marijuana with intent to distribute exceeding one ounce and by possessing marijuana exceeding one ounce, respectively, and the sentence. Held:

1. 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 (1) (393 SE2d 737).

2. Appellant has expressly abandoned her first enumeration of error, based on the receipt of new information rendering the issue moot.

3. Appellant asserts the trial court erred in denying her suppression motion.

(a) The trial court ruled collateral estoppel barred a re-litigation of the same issues raised in the case at bar regarding the legality of the search, as the court previously had ruled during a probation revocation proceeding concerning another indictment that the search of appellant’s premises and automobile was valid. Appellant questions whether this court can rule on the trial court’s denial of the grounds of collateral estoppel of appellant’s motion to suppress evidence and argues that the trial court failed to incorporate into this record, except by reference, its prior ruling on the legality of the search warrant.

This court does not lack judicial power to consider and dispose of this issue; rather, it has been vested with such broad judicial power “as necessary in aid of its jurisdiction or to protect or effectuate its judgments.” Ga. Const. of 1983, Art. VI, Sec. I, Par. IV. Further, we have the authority to take judicial notice of records on file in this court. Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579 (394 SE2d 367). Accordingly, we take judicial notice of the record in A90A0314, Talley u. State, including but not limited to appellant’s motion to suppress, filed August 4, 1989, the transcript of the probation revocation proceedings of August 9, 1989, and the order of the trial court, filed August 21, 1989, wherein appellant’s motion to suppress was denied. Additionally, the hearing transcript of the probation revocation proceedings was tendered and implicitly accepted in evidence by the trial court when it reissued its ruling declining to re-litigate most of appellant’s search warrant issues. However, the issues concerning whether the affidavit was executed at the time the search warrant was issued were deemed to be not subject to the collateral estoppel doctrine, and the trial court found as fact that “the affidavit was with the search warrant and executed at the same time.”

Estoppel by judgment is sometimes referred to as collateral estoppel or as estoppel by verdict. Smith v. Wood, 115 Ga. App. 265, 266 (1) (154 SE2d 646). “ ‘[E]stoppel by judgment applies as between the same parties upon any cause of action to matters which were directly decided in the former suit.’ ” Pitts v. Attaway, 259 Ga. 455, 457 (3) (384 SE2d 629).

Appellant does not argue in her brief or provide any citation of authority to establish that the trial court applied the doctrine of estoppel by judgment as to any matters which were not directly decided during the probation revocation hearing wherein the court made certain findings of fact and denied appellant’s suppression motion. Accordingly, this issue has been abandoned on appeal. Court of Appeals Rule 15 (c) (2).

The trial court did not err in applying the doctrine of collateral estoppel in the disposition of appellant’s suppression motion. Appellant had a full and fair opportunity to litigate those Fourth Amendment issues during the probation revocation proceedings. See Jacobs v. Hopper, 238 Ga. 461 (233 SE2d 169).

(b) Additionally, Lieutenant Edge initially observed marijuana in appellant’s home while he was therein, during the absence of the owner, for purposes of investigating a burglary that had just been committed on the premises and discovered by police officers in response to a citizen’s report of suspicious males around the premises. We find that all entries into the premises by the police prior to vacating the premises to obtain a search warrant were reasonable under the totality of the existing circumstances, particularly as the police were not on the premises to investigate suspected criminal activity of appellant homeowner, but rather were attempting to protect the absent appellant’s property and investigate a burglary found to have been committed on the premises. We find the marijuana observed by Lieutenant Edge to have been in “plain view” from his lawful vantage point within the house. “The subjective intent of an officer and the fact that actions taken may have dual motives do not preclude the conclusion that no impermissible invasion occurred because they were objectively reasonable, ‘valid independent of their suspicion,’ under the Fourth and Fourteenth Amendments. [Cit.] An officer is not required to ignore what he observes when legitimately acting in another capacity.” State v. Almand, 196 Ga. App. 40, 41 (395 SE2d 609). “As recently stated in . . . Horton v. California, [495] U. S._, (110 SC 2301, 110 LE2d 112) (1990), ‘(i)f an article is already in plain view, neither its observation nor its seizure (involves) any invasion of privacy. . . .’” Bozeman v. State, 196 Ga. App. 743, 744 (1) (397 SE2d 30). Moreover, “[i]n Horton, the Supreme Court abolished the ‘inadvertence’ requirement as it had developed from the plurality opinion in Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564).” State v. Almand, supra at 42. Thus, the record establishes no unlawful search or seizure by the police of the premises before the search warrant was sought.

(c) The trial court found as a fact that the affidavit supporting the search warrant accompanied the warrant and was executed at the same time. “As a general rule, the trial court’s decision on [disputed] questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.” (Punctuation omitted.) Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). The trial court’s findings of fact were adequately supported by evidence of record.

(d) Pretermitting the question of whether the search warrant in fact was issued by the magistrate upon an adequate showing of probable cause is the question whether the police reasonably could rely upon the warrant under the good faith exception to the exclusionary rule. We conclude they could.

The exclusionary rule “has been ‘ “modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance (by an officer) on a search warrant that is subsequently held to be defective.” ’ United States v. Leon, 468 U. S. 897, 905 (I) (104 SC 3405, 82 LE2d 677).” Debey v. State, 192 Ga. App. 512, 513 (385 SE2d 694). “ ‘ “(A) warrant issued by a magistrate normally suffices to establish” that a law enforcement officer has “acted in good faith in conducting the search.” (Cit.)’ United States v. Leon, supra at 922.” Adams v. State, 191 Ga. App. 916, 917 (383 SE2d 378). “Nevertheless, the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable.” Leon, supra at 922. And this applies both to the officers who initially obtained the warrant and those who subsequently executed it. Leon, supra at 923, n. 24. Therefore suppression does remain an appropriate remedy in certain instances, which basically include: the magistrate or judicial officer issuing the warrant being misled by inaccurate information caused by the knowing or reckless falsity of the officers in preparing the affidavit; an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; the warrant being so facially defective that the executing officers cannot reasonably presume it to be valid; and, those instances where the issuing magistrate wholly abandons his judicial role. United States v. Leon, supra at 923; State v. Evans, 192 Ga. App. 216, 222 (384 SE2d 404).

Moreover, existence of technical defects in a search warrant or its accompanying affidavit will not preclude the existence of objective good faith on the part of the police in relying on the validity of the warrant. See State v. Evans, supra at 222, citing Massachusetts v. Sheppard, 468 U. S. 981 (104 SC 3424, 82 LE2d 737). In fact, factual inaccuracies in the affidavit will not destroy an otherwise adequate showing of probable cause if they are of peripheral relevance, and particularly if they are not based on the personal observations of the affiant and thus do not reflect on his credibility. Summerville v. State, 226 Ga. 854 (1) (178 SE2d 162); compare Rimmer v. State, 197 Ga. App. 294 (398 SE2d 282). Likewise, factual inaccuracies of peripheral relevance will not preclude the good-faith exception to the exclusionary rule.

Any inaccuracies in this search warrant or affidavit were either technical in nature or of peripheral relevance, including the inaccurate statement in the affidavit that two suspects, rather than one suspect, were under arrest. Based on the totality of the circumstances, we find the law enforcement officials acted in objective good faith, within the meaning of Leon, in both obtaining and executing the search warrant and that any deficiency in the warrant or its affidavit would not result in the invocation of the exclusionary rule.

The correct decision of a trial court will not be reversed regardless of the reason ascribed thereto. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268). The trial court did not err in denying appellant’s motion to suppress.

4. Appellant asserts the trial court erred in sentencing her on both counts of the indictment. Appellee has not responded in its appellate brief to this enumeration of error, and accordingly, has abandoned its right to present argument or citation of authority in opposition thereto. In carefully considering the validity of appellant’s enumeration, we will not cull the record in behalf of either appellant or the State as “ ‘[i]t is not the function of this court to cull the record on behalf of a party.’ ” Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251).

The two counts of which appellant was convicted and sentenced aver appellant did at the same date and place violate the Georgia Controlled Substances Act in that she “unlawfully did possess marijuana with intent to distribute, in an amount exceeding one (1) ounce” and “unlawfully did possess marijuana in an amount exceeding one (1) ounce,” respectively. Appellant argues that she can be convicted and punished of only one crime because possession of marijuana in an amount exceeding one ounce is a lesser included offense of possession of marijuana with intent to distribute in an amount exceeding one ounce. OCGA §§ 16-1-6 and 16-1-7 establish alternative rules for determining when one crime is included in another so as to bar conviction and punishment for more than one crime. State v. Estevez, 232 Ga. 316 (206 SE2d 475). With respect to punishment, “a crime is an included crime and multiple punishment therefor is barred if it is the same as a matter of fact or as a matter of law as specified in [OCGA §§ 16-1-6 and 16-1-7 (a) (2)].” (Emphasis deleted.) State v. Estevez, supra at 319-320.

We find that as a matter of law the offense of possession of marijuana, as averred in count two of the indictment was a lesser included offense of the offense of possession of marijuana with intent to distribute, as averred in count one of the indictment. The counts on their face show that the possession charge can be established by proof of a less culpable mental state (general criminal intent) than is required to establish the commission of possession with intent to distribute (specific criminal intent to distribute). Thus, as crafted, the possession charge is a lesser included offense as a matter of law. OCGA § 16-1-6 (a). Also, count two prohibits a designated kind of conduct generally, that is the possession of marijuana while count one prohibits a specific instance of such possession, that is a possession with intent to distribute. OCGA § 16-1-7 (a) (2). Finally, as the counts of the indictment are crafted, both counts can be established by proof of the same facts, and the jury may well have relied upon the same set of facts to find appellant guilty of both counts. Thus, the possession count, as averred, was also a lesser included offense as a matter of fact. OCGA § 16-1-6 (a); Buford v. State, 162 Ga. App. 498, 499 (4) (291 SE2d 256); see Iglesias v. State, 191 Ga. App. 403 (1) (381 SE2d 604). The conviction and punishment for possession of marijuana, count two, will be stricken. Buford, supra at 500.

It is well established that “ ‘[i]f the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance.” Feagin v. State, 198 Ga. App. 460, 461 (2) (402 SE2d 80). However, we need not decide whether the State could have tailored its indictment so as to predicate one of the counts on the marijuana found in the house and one of the counts on the marijuana found in the car, thereby creating two separate offenses by inserting additional elements of proof by means of averment into each count and causing a different factual predicate to be required as to each offense. Suffice it to say they did not so craft the averments within the criminal counts in this case.

Judgment affirmed in part and reversed in part in accordance with Division 4 herein.

Pope and Cooper, JJ., concur.

On Motion for Reconsideration.

Appellant has attempted to attach a certain document, captioned “Motion to Suppress and Brief in Support Thereof,” to her motion for reconsideration. Although a record cannot be supplemented by information contained in a motion for reconsideration or attached thereto (Norman v. State, 197 Ga. App. 333, 337 (398 SE2d 395)), this same document appears in the record of the case sub judice and was duly considered during the course of our review of this case..

Appellant has listed in her motion for reconsideration certain so-called enumerations of error, which deviate either in whole or part from the enumerations of error originally filed in support of the Notice of Appeal. As a general rule enumerations of error cannot be amended, as has here been attempted in appellant’s pro se motion for reconsideration, when the time for filing of the original enumeration has passed. Garmany v. Peavy, 122 Ga. App. 466 (177 SE2d 502); accord Johnson v. Amerson, 179 Ga. App. 75, 76 (3) (345 SE2d 94). Further, “ ‘[a]n enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel [or by statements in motions for reconsideration] to include issues not made in the enumeration. . . . One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.’ ” West v. Nodvin, 196 Ga. App. 825, 830 (4b) (397 SE2d 567). Accordingly, except for the issue of ineffective assistance of counsel on appeal, which will herein be addressed in the interests of judicial economy, enumerations of error asserted for the first time in the motion for reconsideration will not be addressed.

Appellant asserts she was subjected to ineffective assistance of counsel on appeal, because “counsel failed to include the entire record of the case at bar as a portion of the transcript was not included when the case at bar was appealed.” Although appellant has failed to identify with precision that portion of the record which is alleged to have been omitted, we conclude she is referring to the transcript of the revocation hearing which she cites extensively in support of her motion for reconsideration. Pretermitting the question whether counsel’s election not to include this transcript was a matter of appellate tactics is the question whether any prejudice flowed against appellant due to such omission. Assuming arguendo appellant’s counsel had been deficient as alleged, failure to forward the revocation hearing transcript with the trial record could not have affected the outcome of the appeal in the case sub judice. This court took judicial notice and duly examined the relevant contents of the record in A90A0314, which is on file with this court, and expressly acknowledged this appellate action in Division 3 of our opinion. Among those documents considered was the entire revocation hearing transcript cited by appellant in her motion for reconsideration. Accordingly, as a matter of law, appellant has failed to show that there is a reasonable probability that, but for counsel’s asserted deficiency, the result of this appeal would have been different. See Jowers v. State, 260 Ga. 459, 461-462 (2) (396 SE2d 891).

Decided June 28, 1991

Reconsideration denied July 12, 1991

Caleb B. Banks, for appellant.

Janice Talley, pro se.

Robert F. Mumford, District Attorney, William F. Todd, Jr., Assistant District Attorney, for appellee.

Appellant’s other assertions are without merit.

Motion for reconsideration denied.


author: Banke, Presiding Judge.

text:
    A91A0375.
    ROSS v. CHATHAM COUNTY HOSPITAL AUTHORITY.
    (408 SE2d 490)
   Banke, Presiding Judge.

The appellant filed this medical malpractice action to recover for injuries caused by the failure to remove a surgical instrument from his abdomen during an operation which was performed at the appellee hospital in 1974. Based on application of the “locality rule,” the trial court granted partial summary judgment to the hospital as to the allegation that its operating room employees had been under an independent duty to conduct an instrument count during the operation. However, the court rejected the hospital’s contention that the “borrowed-servant” doctrine operated to insulate it from liability for all other possible negligence on the part of its operating room personnel.

The hospital appealed the latter ruling to this court, and we reversed, holding that the hospital was insulated from liability as a matter of law based on the undisputed evidence of record showing that its operating room employees had been working under the immediate control and supervision of the surgeon during the operation. Chatham County Hosp. Auth. v. Ross, 184 Ga. App. 660 (362 SE2d 390) (1987). However, that decision was reversed by the Supreme Court, which, after reiterating the principle set forth in Porter v. Patterson, 107 Ga. App. 64 (1) (129 SE2d 70) (1962), that the borrowed-servant doctrine does not apply to the negligent performance of administrative or clerical acts by operating room employees but only to tasks involving professional skill and judgment, adopted “the reasoning in the cases discussed in ‘Liability of Hospital for Negligence of Nurse Assisting Operating Surgeon,’ 29 ALR3d 1065, 1078 (1970), [pursuant to which] the counting of sponges, instruments and other items which could be left in the patient during an operation is generally considered an administrative act rather than an act requiring the exercise of professional skill or judgment.” Ross v. Chatham County Hosp. Auth., 258 Ga. 234, 236 (367 SE2d 793) (1988). The Supreme Court stated that because the question of local standard was “not on appeal,” it could not reach the issue of whether the operating room employees had been under an independent duty to conduct an instrument count; however, it concluded that a question of fact remained as to the hospital’s liability based on “[t] he possibility of other negligent administrative acts by hospital employees causing the instrument to be left in the body. . . .” Id. at 236. On remand, the trial court entered summary judgment for the hospital as to the entire complaint, thereby implicitly ruling that there were no other alleged acts of negligence by its operating room employees which could be considered administrative in nature. The case is now before us on appeal from that ruling. Held:

1. The appellee hospital has moved this court to strike a document submitted by the appellant as an attachment to its brief which purports to set forth the operating room “needle count” procedure at the hospital. The hospital contends that by attaching this document to its brief, the appellant has sought to interject an extraneous matter into the appeal and urges that he be cited for contempt under Court of Appeals Rule 7 for doing so. We agree that the submission of this document in this manner was inappropriate, and we decline to give it any consideration in deciding the appeal. However, we do not consider the matter so egregious as to warrant a contempt citation.

2. The appellant enumerates as error the trial court’s previous ruling granting partial summary judgment to the hospital on the question of whether the existence vel non of an independent duty on the part of its operating room personnel to conduct a surgical instrument count was governed by the locality standard. The hospital contends that the appellant is precluded from challenging this ruling because he previously attempted to do so during the previous appeal of the case, and this court declined to consider the issue due to his failure to file a cross-appeal. Chatham County Hosp. Auth. v. Ross, supra, 184 Ga. App. at 661.

Generally speaking, “[t]he party against whom summary judgment was granted may appeal either after the grant of summary judgment or after the rendition of the final judgment. Therefore, when the losing party appeals after the rendition of the final judgment, the grant of summary judgment is still subject to appellate review.” Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978). While the appellee acknowledges that this is the general rule, it cites United Svcs. Auto. Assoc. v. Sentry Indem. Co., 147 Ga. App. 217 (248 SE2d 521) (1978), for the proposition that where, as here, the appellant has previously sought to obtain appellate review of an interlocutory order in the context of a prior appeal filed by another party, and that attempt failed due to his failure to file a proper cross-appeal, he is thereafter barred from challenging the ruling. In United Svcs., the appellee was seeking by way of a cross-appeal to challenge a grant of partial summary judgment which had been awarded to another appellee in the case. This court dismissed that cross-appeal based on the principle that a “ ‘cross appeal can be taken only against an appellant, and not against a coappellee, except where a statute permits the grant of a cross appeal against either.’ 4 CJS 139, Appeal & Error, § 35.” Id. at 220. We went on, however, to state that “the effect of this dismissal was ‘to affirm’ ” the partial summary judgment order in question. Id. To the extent that the United Svcs. case supports the proposition that the dismissal on procedural grounds of a prior attempt to appeal an interlocutory ruling bars any subsequent appeal of that ruling, it is hereby disapproved; and we hold in the present case that the trial court’s order granting partial summary judgment to the appellee hospital on the issue of whether its operating room personnel were under a duty to conduct an instrument count is properly before us.

3. “The ‘locality’ rule applies where the adequacy of the services or facilities of a small hospital is questioned.” Richmond County Hosp. Auth. &c. v. Dickerson, 182 Ga. App. 601, 603 (356 SE2d 548) (1987). Where the professional judgment of a hospital employee is questioned, rather than the services or facilities of the hospital, “the standard of care which should be applied ... is that ordinarily employed by the profession generally.” Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118, 119 (311 SE2d 836) (1984). See also Macon-Bibb County Hosp. Auth. v. Ross, 176 Ga. App. 221 (335 SE2d 633) (1985). “The rationale for the distinction [is] simply that while a hospital’s facilities and services might be limited by its location and resources, the judgment of [the professional is] not so limited.” Richmond County Hosp. Auth. &c. v. Dickerson, supra, 182 Ga. App. at 603.

Decided July 12, 1991.

Taggart Law Firm, Thomas R. Taggart, for appellant.

Oliver, Maner & Gray, William P. Franklin, Jr., Wendy W. Williamson, for appellee.

As previously indicated, the Supreme Court has specified in the present case that “the counting of sponges, instruments, and other items which could be left in the patient during an operation [will] generally [be] considered an administrative act rather than an act requiring the exercise of professional skill or judgment.” Ross v. Chatham County Hosp. Auth., supra, 258 Ga. at 236. Thus, if the locality rule is automatically applicable in all instances where the alleged negligence involves a merely “administrative” act or service as opposed to an act or service involving the exercise of professional skill or judgment, then it must be deemed applicable in this case. However, it is clear that the rationale for the locality rule is not present in this case, inasmuch as the ability of an operating room employee to count the surgical instruments present at the beginning and end of an operation obviously would not be affected by the size or location of the hospital. Accordingly, we conclude that the rule is not applicable; and because the appellant has submitted expert opinion testimony to the effect that the failure to conduct an instrument count constituted a breach of the standard of care ordinarily employed by the profession generally at the time of the operation, we hold that the trial court erred in granting the appellee’s motion for summary judgment.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, Pope, Beasley, Cooper and Andrews, JJ., concur.


author: Andrews, Judge.

text:
    A91A0206.
    LAWHORN v. THE STATE.
    (408 SE2d 425)
   Andrews, Judge.

Lawhorn, former chief deputy clerk of the Recorder’s Court of Chatham County, appeals her conviction of two counts of theft by taking of funds in possession of that court.

Count 1 alleged that she had taken “funds belonging to Chatham County . . ., in the amount of $12,349, with the intention of depriving Chatham County of the funds, said acts being done ... in breach of her duties, ... in that Beverly Lawhorn did take cash collected for Chatham County by The Recorder’s Court of Chatham County, concealing said thefts of cash by drawing checks on an account denominated the Recorder’s Court of Savannah and Chatham County Georgia Appearance Bond Account . . . and substituting the checks for cash. . . .” Count 1 then alleged 44 specific checks so used. Count 2 alleged theft of $18,169.50 by the same method of “funds belonging to The Mayor and Alderman of the City of Savannah.” Fifty-one checks were alleged as used for this purpose.

Viewed in favor of the verdict, the evidence showed that defendant was the chief deputy clerk of the Recorder’s Court, a constitutional court with jurisdiction over traffic and misdemeanor cases made within the city limits as well as the unincorporated areas of the county. The court also dealt with arraignments and preliminary hearings of felony cases. It handled cases made by both city and county law enforcement officers. Employees of the court were city employees, except the judges who were paid by the city and county.

When a person was arrested and posted a cash bond, a receipt was issued posting the bond. The cash and the court copy of that receipt were taken to the cashiers at the court. They entered the money into their computer system and at the end of the day gave their work sheets as well as a computer-generated summary of their transactions to Lawhorn, or, in her absence, the court administrator. The computer-generated report listed each case, including the number of the receipt issued for the transaction, whether the receipt represented check or cash, and totalled the amounts due to the city and the county from the day’s receipts, as well as the amount of cash to be deposited to the cash bond appearance account. Lawhorn would then prepare a docket card for criminal cases, but not for traffic cases. She was to place on the docket card the receipt number, which she did in all cases except those where cash was taken. In addition, bond index cards were prepared from each bond receipt to use in tracking that money. At the end of each day, Lawhorn checked the cashiers’ work and prepared the deposits.

The bond money was then deposited into the cash bond appearance account, which was maintained separately for this purpose. The amounts due the city and county as revenues were deposited to their respective accounts. When a defendant did not appear, did appear and was fined on misdemeanor and traffic cases, or was bound over on felony cases, the cash bond was forfeited to the city or county, credited toward the fine due the city or county, or the bond transferred to the state or superior court. For such purposes, a check would be written from the cash bond account, a receipt written, and that check included in the deposit. The number of that receipt would be written on the docket card or citation. Every payment, for whatever purpose, was to be receipted and the receipt number placed on the docket card. When a new court administrator arrived in 1985, Law-horn explained to him that putting the check number on the card instead of the receipt number would not provide an audit trail. Cash appearance bond account check numbers instead of receipt numbers were found on all the cards contained in the indictment.

In 1988 the new administrator requested the city and county auditors to audit the court. A sample audit was done, revealing instances where no receipt was found for checks written on the cash appearance bond account. Upon retracing the defendant’s name contained on the check notation line, with a “BF” or “F” notation, indicating bond forfeiture or fine, the auditors discovered that in these cases, the check written on the cash appearance bond account would have been substituted for a like amount of cash which was removed from that day’s deposit. That defendant’s record was never cleared in the court or posted into the cash management system.

While all cash appearance bond checks required two signatures, Lawhorn’s was always one of them if she were present and only checks bearing her signature were connected with cases where no receipt was issued. She was the only one of those authorized to sign checks who was present on each occasion when a check was substituted for cash. During her interview with investigators, before the significance of the receipt number was known to them, Lawhorn told them she had placed the check numbers on the docket cards for audit purposes.

Lawhorn’s personal bank account and that of her husband, a city policeman, were reviewed, revealing over $10,000 in cash deposits for 1988 and early 1989 when the thefts occurred. They also made over $2,000 in cash payments for their child’s day care during this period. Lawhorn’s and her husband’s combined salaries were approximately $43,000 a year. Their average monthly indebtedness was over $3,000.

1. Lawhorn enumerates as error denial of her motion for directed verdict as to Count 1, because of a fatal variance between the allegata and probata with regard to the victim of the crime. That motion was premised on the argument that, since the Recorder’s Court was a “creature of the city,” and the employees paid by the city, the county really had not been the victim of any crime as was alleged by the indictment.

“Based on DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969), our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. ‘ “The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” ’ [Cits.] . . . [I]t is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense [and] not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.” Partridge v. State, 187 Ga. App. 325, 327 (3) (370 SE2d 173) (1988).

Here, Count 1 alleged the taking of money “collected for Chat-ham County” by the court, in specific amounts and with specific dates and check numbers used to appropriate the funds. “Ownership of stolen property can be alleged in the person having actual lawful possession (OCGA § 16-1-3 (10); Spurlin v. State, 222 Ga. 179, 182 (149 SE2d 315)), even though only a bailee (Hall v. State, 132 Ga. App. 612 (208 SE2d 621)).” Whitley v. State, 176 Ga. App. 364, 365 (1a) (336 SE2d 301) (1985) (physical precedent).

The evidence showed that the city and county, separate legal entities, each was due revenues from the Recorder’s Court. Because cash representing amounts of these fines and forfeitures was removed from the deposits, and checks in these same amounts were substituted, the city and county were the ultimate losers of the monies from their respective cases.

There was no error in denying the directed verdict.

2. Secondly, Lawhorn enumerates error in the court’s refusal to substitute an alternate juror after the failure of juror Johnson on voir dire to acknowledge his friendship with the district attorney as well as his role as co-campaign manager during his last election. The trial was conducted by an assistant district attorney and there is no indication the district attorney personally participated.

The objection at trial was not made until the second day of the trial, after the empaneling of the jury the prior day and presentation of part of the State’s case.

The colloquy between defense counsel and juror Johnson during individual questioning of the jurors reveals, as later acknowledged by defense counsel, that he “didn’t ask a question that would specifically put the requirement on . . . Johnson ... to answer the question as to whether he was in fact acquainted with Mr. Lawton.” Defendant nonetheless contended that it was a denial of federal and state constitutional due process to seat as a juror the former head of the district attorney’s election campaign.

The juror was qualified after appropriately answering the questions set out in OCGA § 15-12-164. “In all criminal cases both the state and the defendant shall have the right to an individual examination of each juror . . . prior to interposing a challenge.” OCGA § 15-12-133.

Here, the prosecutor, during his individual questioning of Johnson, asked if anyone on the panel knew “either of these attorneys,” referring to the two defense counsel. Johnson responded that “I know [defense counsel Cox, who ran against the district attorney], attend church with him, and also from the last District Attorney’s race, and I also know [second defense counsel]. . . .”

Defense counsel did ask one juror whom he questioned before Johnson if she knew the district attorney. He did not ask Johnson. He did ask Johnson if, of any prior questions asked of previous jurors, there were any with which he “had any kind of problem with.” While the answer given was inaudible there is no indication, as acknowledged by defense counsel, that Johnson in any way gave other than truthful answers to the questions asked.

“Where the defendant. . . has failed to challenge any individual juror for cause, he is not entitled to a new trial solely on the basis that one or more members of his jury may have been subject to disqualification. [Cits.]” Newby v. State, 161 Ga. App. 805, 810 (4) (288 SE2d 889) (1982). See generally Mitchell v. State, 69 Ga. App. 771 (26 SE2d 663) (1943). Here, unlike Henderson v. State, 251 Ga. 398, 402 (2) (306 SE2d 645) (1983), relied upon by Lawhorn, there was no denial of the right to ask the question.

3. Lawhorn enumerates as error the court’s refusal to grant her motion for mistrial because of the prosecutor’s “comments” on her exercise of the right to remain silent and on pre-trial plea negotiations.

Lawhorn testified during her cross-examination, regarding her pre-indictment interviews by the State, as follows: “ . . . was there one question I did not answer you asked me? I never took the Fifth Amendment, I never hid behind my attorney, I answered every single question you give [sic] me. Q. Did you not take the Fifth Amendment one time? A. No, sir, I did not take the Fifth Amendment on anything.” She was then asked if, when questioned about anything improper about tickets, her attorney asked if she could have immunity.

At that point, counsel objected and a bench conference was held, relating to a prior in-camera hearing, not included in the record, which apparently related to non-charged events. The only reference to a mistrial was in that exchange when Lawhorn’s counsel said “I’m going to have to bring this whole thing in or else I want a mistrial.” At that point the court sustained Lawhorn’s objection to the question asked and no further relief was requested.

Since the objection was sustained and the motion for mistrial was not renewed thereafter nor was any additional relief requested by Lawhorn, there is nothing presented for our review. Smith v. State, 196 Ga. App. 758 (2) (396 SE2d 809) (1990).

Lawhorn also objects for the first time on appeal to questions asked concerning the contents of her and her husband’s bankruptcy petition. “ ‘ “Enumerations of error which raise questions for the first time on appeal present nothing for decision. . . .” ’ [Cit.]” Cooper v. State, 188 Ga. App. 297, 298 (3) (372.SE2d 679) (1988).

4. The fourth enumeration is that the court’s allowance of the use of voluminous records and summaries by the accountants involved in the investigation was an abuse of discretion in that the prejudicial and “burden shifting” results outweighed any probative value.

During the trial, Lawhorn specifically objected on this basis to State’s Exhibits 67 and 68, which were handwritten summaries prepared during the investigation by four accountants, all of whom testified. The original checks and receipts referenced on these summaries were introduced into evidence if they were listed in the indictment. The other checks and receipts were available to the defendant and his expert accountant for review.

The court administrator testified at length concerning the record-keeping procedures of the recorder’s court and gave testimony fulfilling the business records exception to the hearsay rule with regard to the records maintained by the court, including computer-generated records. OCGA § 24-3-14; WGNX v. Gorham, 185 Ga. App. 489, 490 (3) (364 SE2d 621) (1988). As for the summaries used, such summaries of voluminous business records are admissible as long as the original records are accessible to the court and the parties, as they were here. Tyner v. Sheriff, 164 Ga. App. 360 (2) (297 SE2d 114) (1982). This argument is without merit.

The objection that evidence, otherwise admissible, is “prejudicial” is too vague to present a question for determination. Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987).

Introducing many pieces of evidence against a defendant during a criminal trial does not in any way “shift the burden” of the proof which remains “beyond a reasonable doubt.” That was the burden placed upon and remaining upon the State until the jury reached its verdict.

Numerous other evidentiary objections are argued in the brief but were not made to the court below during the trial and present nothing for our review. Id.

5. Lawhorn’s motion for new trial raised the general grounds, challenging the sufficiency of the evidence under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988). Here, Lawhorn argues that the circumstantial evidence did not exclude every other reasonable hypothesis save defendant’s guilt, as required by OCGA § 24-4-6. Her theory of defense was that the cashiers were the ones responsible for the thefts. “The question of whether there was a reasonable hypothesis favorable to the accused is a question for the jury. [Cits.] ‘ “If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law. (Cits.)” ’ Jones v. State, [156 Ga. App. 823] at 824 [(275 SE2d 712) (1980)]; [cits.].” White v. State, 253 Ga. 106, 107 (1) (317 SE2d 196) (1984).

Decided June 11, 1991

Reconsideration denied July 15, 1991.

William O. Cox, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

Viewing the evidence in favor of the verdict, it was sufficient.

6. Finally, Lawhorn enumerates the failure to give “defendant’s requested special verdict form” which she argues resulted in denial of the right to have the jury determine “each sub-count and amount in controversy.”

No special form was submitted to the court and the only record reference to this issue is defendant’s oral request after the close of the evidence that the jury be required to report guilty or not guilty on each of the “95 counts” in the indictment. The argument was that, absent that, the court could not order restitution.

Pretermitting the validity of such a request in a criminal case, see OCGA §§ 9-11-49; 9-12-2 relating to civil cases, since no restitution was ordered of defendant and she was convicted of two counts instead of 95, there was no harm to her and no error as enumerated.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.