text:
    A91A1548.
    A91A1549.
    MOON et al. v. HOMEOWNERS’ ASSOCIATION OF SIBLEY FOREST, INC. et al. MOON et al. v. SWIMATLANTA POOL MANAGEMENT, INC.
    (415 SE2d 654)
   Carley, Presiding Judge.

In his capacity as president of Racetrac, Inc. (Racetrac), appellee-defendant Max Lenker undertook to host a party for a new Racetrac employee. Appellee Lenker was a member of appellee-defendant Homeowners’ Association of Sibley Forest, Inc. (Association) and, for a fee, Racetrac rented the Association’s clubhouse and pool facility as the site for the party. The Association had contracted with appelleedefendant Swimatlanta Pool Management, Inc. (Swimatlanta) to provide lifeguard services at its pool and, pursuant to that contract, Swimatlanta was providing lifeguard services at the party. As a Racetrac employee, appellant-plaintiff Charles Moon was invited to the party and he attended. At the party, Moon was seriously injured when he either dove or was thrown into the shallow end of the pool. Seeking to recover damages on account of his injuries, Moon and his wife filed suit against the appellees. After answering and engaging in discovery, Lenker, the Association and Swimatlanta moved for summary judgment. The trial court granted the motions and two separate notices of appeal were filed. The two appeals are hereby consolidated for disposition in this single opinion.

1. If the evidence of record is construed most favorably for Lenker, the Association and Swimatlanta, then Moon voluntarily dove into the shallow end of the pool. However, the evidence of record must be construed most strongly against them and most favorably for the Moons. When this is done, a jury would be authorized to find that Moon was involuntarily pulled to the edge of the pool by two other guests and only after he was then forcibly thrown forward did he instinctively raise his arms in a diving motion.

“ ‘The defense of assumption of risk presupposes (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom[;] and (3) that he voluntarily exposed himself to such risk.’ [Cit.]” Abee v. Stone Mtn. Memorial Assn., 169 Ga. App. 167, 169 (1) (312 SE2d 142) (1983), aff’d 252 Ga. 465 (314 SE2d 444) (1984). Obviously, if Moon “dove” only after he was involuntarily thrust toward the edge of the pool and into the shallow end, he did not voluntarily assume the risk of so doing. His “dive” would have been precipitated by the unauthorized actions of those who threw him into the pool, not by his own voluntary decision to risk the perceived danger of entering the shallow end of the pool headfirst. Compare Plantation at Lenox &c. Assn. v. Lee, 196 Ga. App. 420, 421 (2) (395 SE2d 817) (1990); Bunch v. Stanton, 174 Ga. App. 233, 234 (1) (329 SE2d 538) (1985) (voluntary dive which was immediately preceded only by verbal threats rather than reflexive “dive” which was precipitated by physical act of another). Accordingly, a genuine issue of material fact remains as to whether Moon assumed the risk of diving into the shallow end of the pool and the grant of summary judgment would not be authorized on the basis of that defense.

2. As noted, the Association’s clubhouse and swimming pool facility had been rented for a fee by Racetrac as the site for the party to be hosted by Lenker. Accordingly, Racetrac and Lenker were, as to the Association, tenants, and Moon, as a guest of Racetrac’s and Lenker’s was, as to the Association, an invitee. Plantation at Lenox &c. Assn. v. Lee, supra at 421 (1). However, Moon was, as to Racetrac and Lenker, a social guest and a licensee because “. . . Georgia has adopted the rule that a social guest is not an invitee but is a licensee. [Cits.]” Barry v. Cantrell, 150 Ga. App. 439, 440 (1) (258 SE2d 61) (1979).

“[Wjhere the alleged injury is caused by [an] alleged dangerous statical condition [on] the [premises], no duty arises, with reference to . . . the licensee, ‘of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, mantraps, and things of that character.’ [Cits.]” (Emphasis supplied.) Leach v. Inman, 63 Ga. App. 790, 792 (12 SE2d 103) (1940). However, Moon’s injury was not allegedly caused by any dangerous static condition of the land itself, but by the dangerous act of other guests to which he was subjected while attending a party being held thereon. It is not the swimming pool that Moon alleges to be the cause of his injury, but the act whereby he was involuntarily thrown into the shallow end of that swimming pool. “The fundamental concept of this class of cases . . . is of a liability only for wilful and wanton injury, but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done ... on one’s premises.” (Emphasis supplied.) Cook v. Southern R. Co., 53 Ga. App. 723, 726 (3) (187 SE 274) (1936). “As to a licensee whose presence is discovered and after his position of peril is known, or should have been known, it may be wilful or wanton to fail to exercise ordinary care to prevent injuring him.” Murray Biscuit Co. v. Hutto, 115 Ga. App. 870, 872 (2) (156 SE2d 132) (1967). “After the presence of the licensee is known, exactly the same acts of caution may be required of the owner to satisfy the legal duty as would be necessary if the licensee were invited. [Cits.]” (Emphasis supplied.) Cook v. Southern R. Co., supra at 727 (3).

Construing the evidence most strongly against Lenker, he not only had actual knowledge that some of his guests were engaging in the potentially dangerous activity of throwing other unwilling guests into the pool, he had actually instigated that very activity by his initial suggestion that the guest of honor be thrown into the pool. Likewise, there is evidence that Lenker had actual knowledge that Moon was an intended target of this potentially dangerous activity, but did nothing to prevent or dissuade his boisterous guests from throwing the unwilling Moon into the shallow end of the pool. Thus, a jury would be authorized to find that Lenker, after discovering that Moon was in a position of peril as the result of the potentially dangerous act of some of the other guests, wantonly and wilfully failed to exercise ordinary care to prevent Moon’s injury at the hands of those other guests and that Lenker was, therefore, liable for the injury notwithstanding Moon’s status as a licensee. Since “the presence of [Moon was] known, exactly the same acts of caution may be required of [Lenker] to satisfy the legal duty as would be necessary if [Moon] were [an invitee]. [Cits.]” Cook v. Southern R. Co., supra at 727 (3). “ ‘An owner of premises is liable to a guest . . . when the owner has reason to anticipate the misconduct of the guest inflicting the injury.’ . . . [Cit.]” Veterans Org. of Fort Oglethorpe v. Potter, 111 Ga. App. 201, 206 (2) (141 SE2d 230) (1965). “[A] jury could reasonably find that [Lenker] was guilty of negligence if he could expect or anticipate violent conduct on the part of one guest toward another guest.” Georgia Bowling Enterprises v. Robbins, 103 Ga. App. 286, 288 (119 SE2d 52) (1961).

However, in Bunch v. Stanton, supra at 235 (1), we held: “While it would be reasonable to infer that [the defendant] was aware that [guests] were being thrown into the pool before [the plaintiff] was forced in, and to further infer that he knew this was a dangerous activity with respect to the safety of persons, the licensee [plaintiff] knew also. . . . And the law does not impose on the occupier, with respect to a licensee in these circumstances, a duty to prevent or control or stop the dangerous activity, because he is liable only for his wantonly and wilfully caused injury. [The defendant’s] failure to supervise the pool activity would not constitute a breach of duty towards the licensee [plaintiff], given the undisputed facts of this case.” Insofar as this holding suggests that there is no duty to undertake to protect a social guest from an injury caused by the reasonably anticipated misconduct of another social guest, it is inconsistent with the longstanding applicable principles of Georgia law. Since a failure to exercise ordinary care is wanton and wilful as to those licensees whose presence is known, an álleged negligent failure to protect such a licensee from the reasonably anticipated misconduct of another is actionable. Whether or not that duty was breached and whether or not the injured licensee exercised reasonable care for his own safety will, of course, vary with the circumstances. However, to the extent that Bunch v. Stanton, supra, stands for the proposition that the breach of that duty is not actionable under any circumstances, it is erroneous and must be overruled. Accordingly, Bunch v. Stanton is not viable authority for the grant of summary judgment in favor of Lenker.

3. Assuming, without deciding, that Lenker, who is being sued for the breach of a duty owed in his individual rather than his corporate capacity, can be considered an alter ego of Racetrac, the exclusive remedy provision of the Workers’ Compensation Act would not authorize the grant of summary judgment in his favor. Pizza Hut of America v. Hood, 198 Ga. App. 112 (1) (400 SE2d 657) (1990).

4. As noted, Moon was, as to the Association, an invitee. Plantation at Lenox &c. Assn. v. Lee, supra at 421 (1). Accordingly, the Association owed Moon a duty of ordinary care to keep the premises safe. OCGA § 51-3-1. Since this was a non-delegable duty, the mere fact that lifeguard services were being provided by Swimatlanta would not insulate the Association from potential liability. “ ‘A business invitor owes a nondelegable duty to protect (his) invitees from injury. . . [.]’ [Cit.]” Towles v. Cox, 181 Ga. App. 194, 196 (1) (351 SE2d 718) (1986). Accordingly, the Association may be liable if Swimatlanta was negligent in failing to protect Moon from injury.

There is evidence that the lifeguard provided by Swimatlanta was inexperienced and may have been negligent in failing to control the boisterous activity around the pool. Accordingly, a genuine issue of material fact remains as to Swimatlanta’s and the Association’s liability for an injury that Moon may have suffered as the proximate result of that uncontrolled boisterous activity. “ ‘If the conduct of third persons ... is such as to cause any reasonable apprehension of danger to other customers or invitees because of such conduct, it is the duty of the proprietor to interfere to prevent probable injury; and a failure so to interfere, and consequent damage, will subject such proprietor to an action for damages for such negligent failure to prevent the injury. This duty of interference on the proprietor’s part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger. (Cit.)’ [Cit.]” (Emphasis in original.) Towles v. Cox, supra at 197 (1).

Judgments reversed.

McMurray, P. J., Birdsong, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman concur. Sognier, C. J., Beasley and Andrews, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 4 and in the judgment reversing the summary judgments to the three defendants.

As to Division 3, I agree that Lenker is not entitled to summary judgment on the theory that the Workers’ Compensation Act provides the exclusive remedy. There are at least questions of fact regarding whether “employee [Moon’s] participation [was] required either expressly or by implication,” and whether “the employer derive[d] a substantial benefit from the event beyond the improvement in employee health and morale that is common to all kinds of recreational or social activities.” Pizza Hut of America v. Hood, 198 Ga. App. 112 (1) (400 SE2d 657) (1990). Included in evidence supporting this defense is that the purpose of the event was to honor a new company executive and to ease the transition of business operations under his direction. There was evidence that the invited employees, who were all upper level management employees, were urged to attend and that plaintiff felt compelled to attend. However, there was also evidence that attendance was optional and that the benefits to the employer were merely the building of morale.

I agree with Division 2 except with respect to the caveated overruling of Bunch v. Stanton, 174 Ga. App. 233 (329 SE2d 538) (1985). The legal principles upon which it was based are sound and extant. The facts are distinguishable from the undisputed facts in Moon’s case, and the opinion carefully limited the holding to “the undisputed facts of [Bunch’s] case.” Id. at 235. Here there was evidence that Lenker participated in, and even instigated, the forcing of people including Moon into the pool. There was evidence that Moon was not at the pool but was dragged there earnestly protesting, after Lenker pointed him out as the person next to be thrown in. Bunch does not “suggest that there is no duty [for hosts] to undertake to protect a social guest from an injury caused by the reasonably anticipated misconduct of another social guest,” as the majority characterizes it. Quite different from the circumstances in Bunch, there is evidence that the host in this case not only was aware of the misconduct towards Moon in particular but was involved in it. Licensee Bunch’s host was not even on the scene.

I am authorized to state that Chief Judge Sognier and Judge Andrews join in this opinion.

Decided January 28, 1992

Reconsideration denied February 13, 1992

Hart & McIntyre, George W. Hart, John C. McIntyre, Jr., for appellants.

Drew, Eckl & Farnham, B. Holland Pritchard, Alston & Bird, T. Michael Tennant, Lokey & Bowden, Malcolm Smith, Saveli & Williams, John C. Parker, Jennifer H. Chapin, for appellees.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A1880.
    THORNHILL v. THE STATE.
    (415 SE2d 473)
   Birdsong, Presiding Judge.

Brian Thornhill appeals his conviction of driving under the influence of alcohol. This was his third conviction for this offense. Thorn-hill contends the trial court erred by placing the burden on him to demonstrate why his blood-alcohol test was inadmissible and by finding the State met the requirements of OCGA § 40-6-392 so that the blood-alcohol test results were admissible. Held:

1. Although the transcript shows that the trial court erroneously placed the burden of going forward with evidence on Thornhill in the hearing on his motion in limine to exclude the blood-alcohol test results (see McElroy v. State, 173 Ga. App. 685, 686 (327 SE2d 805)), the transcript also shows that Thornhill did not object to this procedure or in any fashion direct the trial court’s attention to what he now claims as error. Under the circumstances, an appellate issue cannot be raised on this matter. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. [Cits.]” Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536).

2. Thornhill also alleges that the trial court erred by refusing to exclude the results of the State’s blood-alcohol test because he was deprived of his right under OCGA § 40-6-392 (a) (3) to obtain an independent blood-alcohol test. See State v. Buffington, 189 Ga. App. 800, 801 (377 SE2d 548).

The transcript shows that following an evidentiary hearing, the trial court denied Thornhill’s motion. The standard to be applied in these cases is whether under the totality of the circumstances the police officer made a reasonable effort to accommodate Thornhill’s request so that the failure or inability to obtain the independent test was justified. O’Dell v. State, 200 Ga. App. 655, 656 (409 SE2d 54). In reaching their decision, trial courts should consider the factors set out in Buffington v. State, supra at 801-802.

The transcript shows, without dispute, that Thornhill was advised of his rights regarding blood-alcohol tests, including his right to an independent test, and that after Thornhill submitted to the breath test, he requested an independent blood test. When Thornhill was taken to the hospital for the independent test, he learned the hospital required payment in advance of $100. As Thornhill did not have enough money to pay for the test, he was returned to the jail.

The evidence, however, is conflicting on whether Thornhill was advised of the cost of the blood test before he left the police station and whether he was allowed to make arrangements for the money to pay for the test. Thornhill maintains that he was not. On the other hand, a police officer testified that before Thornhill was taken for the blood test, Thornhill asked and was advised that a test would cost between $65 and $80. According to the officer’s testimony even though Thornhill only had $40 in his possession, he permitted the officer to take him to the hospital without making arrangements to secure the funds necessary, even by the officer’s estimate, to obtain the independent test. Additionally, the officer testified that Thornhill was informed he could make telephone calls if he wanted and that Thornhill had access to the telephone and could have called to arrange for the money. In fact, Thornhill testified that a person who was a passenger in his vehicle called a friend to obtain money, but that was money so he could make bond, not to have the blood test. Further, according to the officer’s testimony, he did not prevent either Thornhill or Thornhill’s friend from using the telephone.

Our law requires that Thornhill be given the opportunity for an independent blood test (Taylor v. State, 261 Ga. 415 (405 SE2d 496)), and the law enforcement officers cannot prevent, refuse, or fail to allow him to obtain the independent test. O’Dell v. State, supra. Further, although law enforcement officers are required to make reasonable efforts to accommodate requests such as Thornhill’s, it is not their duty to insure that the independent test was performed. Jenkins v. State, 198 Ga. App. 843 (403 SE2d 859).

In cases such as this where the testimony is conflicting, the credibility of the witnesses is for the trial court, as the trier of fact, and in such cases the findings of the trial court will not be reversed if there is evidence from which the trial court could conclude that a reasonable effort was made to accommodate the request for an independent test and the law enforcement officers did not prevent the defendant from obtaining the independent test. Gray v. State, 194 Ga. App. 811, 812 (392 SE2d 290). As there is evidence supporting the ruling of the trial court, it will not be reversed. The mere fact that Thornhill was not able to obtain an independent test does not require the exclusion of the State’s test. Gordon v. State, 190 Ga. App. 55 (378 SE2d 362). Indeed, it was reasonable for the trial court to conclude from the testimony by both Thornhill and the police officer that Thornhill did not receive an independent test because Thornhill, for whatever reason, did not make the financial arrangements necessary to pay for the test even though his friend was calling to secure bond money.

Decided January 31, 1992

Reconsideration denied February 13, 1992.

Word & Flinn, T. Michael Flinn, for appellant.

Henry C. Head, Solicitor, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Sognier, Chief Judge.

text:
    A91A2036.
    PAGE v. THE STATE.
    (415 SE2d 487)
   Sognier, Chief Judge.

Clarence E. Page was charged with driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)), driving with an unlawful blood alcohol level (OCGA § 40-6-391 (a) (40), and failure to maintain lane. He was acquitted by a jury of the lane charge and convicted of the two DUI counts. He now appeals.

The evidence adduced at trial established that shortly after 10:00 p.m. on June 22, 1990, Officer Ulysses Musgrove, a member of the DUI Task Force of the Cobb County Police Department, was on patrol on Canton Highway. Observing the van driven by appellant cross the yellow centerline twice and veer off the edge of the road three times, Musgrove followed and then stopped appellant. After identification and a brief conversation, during which Musgrove noticed the odor of alcohol on appellant’s breath, Musgrove administered several field sobriety tests. Following those tests, which appellant failed, appellant was arrested, placed in the back of Musgrove’s patrol car, and read his implied consent rights. Appellant indicated that he would consent to a breath test, and he was transported by Musgrove to a mobile unit where he signed a form indicating he agreed to the breath test. Musgrove showed appellant his permit to operate the Intoximeter 3000. The breath test administered indicated a result of 0.12, and a second test administered 20 minutes later at appellant’s request indicated a result of 0.11.

1. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal.

(a) Count Two of the accusation charged appellant with driving a motor vehicle with an unlawful blood alcohol level in that on the date in question he “did physically control a moving vehicle while his aleohoi concentration was at least 0.12 grams within three hours after such physical control ended, from alcohol consumed before such physical control ended.” Appellant argues that because of the wording of the accusation, the terms “alcohol concentration” and “grams” were necessary facts which the State was required to prove, and the State’s failure to offer proof in those specific terms amounted to a fatal variance between the allegata and probata. See Walker v. State, 146 Ga. App. 237, 240-242 (246 SE2d 206) (1978). However, the Supreme Court has held that a fatal variance is one which fails to meet “ ‘the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ . . . [Cit.]” DePalma v. State, 225 Ga. 465, 469-470 (3) (169 SE2d 801) (1969). Here, even assuming a variance existed, but see infra, it is clear that it would not subject appellant to either of the dangers set forth in DePalma, and thus it would not be fatal. Id. at 470.

Nor did the State’s failure to use those terms render the evidence insufficient to authorize appellant’s conviction on Count Two. Mus-grove testified that the Intoximeter 3000 analyzes a subject’s breath sample, and that immediately before he administered the test to appellant, appellant signed a form acknowledging that the implied consent warning had been read to him. That form, which was introduced into evidence at trial, recited, inter alia, that appellant had consented to a breath test “for the purposes of determining alcoholic . . . content.” The language of OCGA § 40-6-392 (a) providing that evidence of the amount of alcohol in a person’s blood, as determined by chemical analysis of that person’s breath, is admissible in DUI trials “makes it clear that a breath test is used to determine the amount of alcohol in a person’s blood.” Fudge v. State, 184 Ga. App. 590, 592 (5) (362 SE2d 147) (1987). Accord Fisher v. State, 177 Ga. App. 465, 466 (2) (339 SE2d 744) (1986). We do not find that the word “concentration” as used in the indictment means something other than “the amount of alcohol in a person’s blood.” Moreover, although the intoximeter test results are expressed in numbers which represent the amount of alcohol in the blood by weight, or grams, those results frequently have been referred to without qualifying them with the term “grams.” See, e.g., Burks v. State, 195 Ga. App. 516 (394 SE2d 136) (1990) (officer administered intoximeter test and “the results were 0.11”); Clark v. State, 192 Ga. App. 718 (1) (386 SE2d 378) (1989) (subject “registered .09 on a breathalyzer test”). Such results are commonly understood to mean the amount of alcohol by weight in a certain volume of the subject’s blood. The evidence adduced was sufficient to authorize a conviction for driving with an unlawful blood alcohol level under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and the trial court properly denied appellant’s motion for a directed verdict of acquittal as to that count. See Broski v. State, 196 Ga. App. 116, 119 (4) (395 SE2d 317) (1990).

(b) Since we have held the trial court properly denied appellant’s motion for a directed verdict of acquittal as to Count Two of the accusation, Count Two was properly before the jury and we need not address appellant’s contention that the trial court erred by charging the burden-shifting language of OCGA § 40-6-392 (b) (3). Compare King v. State, 200 Ga. App. 511, 512 (3) (408 SE2d 509) (1991).

(c) Insofar as appellant’s enumerations of error may be construed to contain a contention that the evidence was insufficient to find him guilty of being a less safe driver, we find no merit in such a contention in light of Musgrove’s testimony regarding appellant’s driving and failing the field sobriety tests.

2. We do not agree with appellant that the trial court erred by admitting into evidence the results of the Intoximeter 3000 test because a proper foundation had not been laid. Musgrove testified to his experience on the DUI Task Force; his Police Academy training; his training in the use of the Intoximeter 3000; and his certification by the Division of Forensic Sciences of the GBI. Musgrove’s testimony also established that he had a permit to operate the machine, which had been displayed to appellant before he took the test and was introduced into evidence. All the foundation requirements of OCGA § 40-6-392 (a) (1) were thus satisfied. See Riley v. State, 175 Ga. App. 810-811 (1) (334 SE2d 863) (1985). Broski, supra at 118-119 (2), cited by appellant to support his contention that a permit for the machine must be displayed over the machine, clearly refers to the operator’s permit. Moreover, contrary to appellant’s argument, no statutory or regulatory requirement exists that this permit be displayed in a specific place or manner.

3. The record reveals that, contrary to appellant’s assertion, the State did disclose appellant’s custodial statement in response to appellant’s pretrial motion made pursuant to OCGA § 17-7-210, and thus appellant’s contention that the trial court erred by admitting these statements into evidence on that ground is not supported by the record.

4. We note that appellant’s convictions under OCGA § 40-6-391 (a) (1) and (a) (4) were based on the same conduct. Under these circumstances, this court has held that “the evidence will not support convictions of two separate offenses.” Sanders v. State, 176 Ga. App. 869, 870 (4) (338 SE2d 5) (1985). Here, however, unlike the situation in Sanders, id. at 871, it is apparent from the transcript that the trial judge sentenced appellant for only one DUI offense. Accordingly, rather than remanding for resentencing, we vacate appellant’s conviction under OCGA § 40-6-391 (a) (4). See Fudge, supra at 592-593 (6).

Decided February 3, 1992

Reconsideration denied February 13, 1992

B. Clark Jones, Alan C. Manheim, for appellant.

Patrick H. Head, Solicitor, Diane M. Busch, Assistant Solicitor, for appellee.

Judgment affirmed in part and vacated in part.

McMurray, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0007.
    HOMICK v. AMERICAN CASUALTY COMPANY.
    (415 SE2d 669)
   McMurray, Presiding Judge.

On February 4, 1986, plaintiff Homick was injured in Glynn County, Georgia, while driving a truck owned and operated by Independent Freightway, Inc., of Rockford, Illinois. The trucking company had filed a “liability surety bond” issued by defendant American Casualty Company with the Georgia Public Service Commission pursuant to OCGA § 46-7-12 (a). Plaintiff filed this action alleging that defendant is obligated to provide coverage under the bond for the minimum no-fault coverage required under OCGA § 33-34-4. Defendant sought summary judgment contending that it had no liability to plaintiff under the surety bond. Plaintiff appeals following the grant of defendant’s motion for summary judgment. Held:

OCGA § 33-34-3 (a) (2) provides that: “All insurers authorized to transact or transacting insurance in this state or controlling or controlled by or under common control by or with an insurer authorized to transact or transacting insurance in this state which issue policies or contracts providing motor vehicle liability insurance coverage or any other similar coverage in any state or Canadian province shall include in the policies or contracts of insurance a provision which provides at least the minimum coverage required under Code Section 33-34-4 with respect to motorists insured under the policies or contracts who are involved in motor vehicle accidents in this state and, notwithstanding any provisions of the policies or contracts to the contrary, all such policies or contracts of insurance shall be deemed to satisfy the minimum requirements of this chapter if a motorist insured under the policies or contracts of insurance is involved in a motor vehicle accident in this state.” (Emphasis supplied.) There is no evidence that defendant is not an insurer subject to these provisions, therefore, for summary judgment purposes, we will assume that defendant is governed by these provisions.

Decided January 30, 1992

Reconsideration denied February 13, 1992

W. Douglas Adams, for appellant.

Fendig, McLemore, Taylor & Whitworth, Philip R. Taylor, Charles G. Spalding, for appellee.

Relying upon the statutory language emphasized above, plaintiff contends that the surety bond is a contract providing coverage similar to that provided by a motor vehicle liability insurance policy. Defendant relies upon language in Herring v. Rabun Trucking Co., 147 Ga. App. 713 (250 SE2d 167) noting that the insurance required under OCGA § 46-7-12 is indemnity insurance, not liability insurance. Nonetheless, this Court has also noted that a policy of indemnity insurance issued in lieu of bond pursuant to OCGA § 46-7-12 “ ‘is a policy of insurance against liability, any provisions in the policy, or any rider attached thereto, to the contrary notwithstanding.’ Great Amer. Indem. Co. v. Vickers, 53 Ga. App. 101 (1) (185 SE 150).” St. Paul Fire &c. Ins. Co. v. Fleet Transport Co., 116 Ga. App. 606, 609 (2) (158 SE2d 476). It follows that the bond when, as in the case sub judice, not supplanted by an insurance policy is similar to a motor vehicle liability insurance policy in that it also provides protection to the general public for damage to person or property arising from negligent acts or omissions of the motor carrier for whom it is issued. Under these circumstances, defendant as issuer of the bond is obligated to provide the minimum coverage afforded under OCGA § 33-34-4 notwithstanding any provisions of the contract or bond. OCGA § 33-34-3 (a) (2).

While plaintiff, as operator of the truck, is not among the class protected by OCGA § 46-7-12, this is irrelevant as he is among the class protected under OCGA § 33-34-3. While defendant argues that plaintiff’s exclusive remedy is workers’ compensation benefits, there is no evidence in the record that plaintiff is entitled to receive any workers’ compensation benefits so as to call into question the application of OCGA § 33-34-8 (b) and (c). The superior court’s conclusion that OCGA § 33-34-4 is not applicable because the truck driven by plaintiff was not registered or required to be registered in Georgia is incorrect since the truck was a vehicle “of a kind” required to be registered in Georgia. See OCGA § 33-34-2 (6). The superior court erred in granting defendant’s motion for summary judgment.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A91A1707.
    OWEN et al. v. THE STATE.
    (415 SE2d 537)
   Sognier, Chief Judge.

Daniel and Jennifer Annette Owen were convicted after a jury trial of the offense of hindering the apprehension of a criminal (OCGA § 16-10-50), and both appeal.

The evidence adduced at trial showed that in December 1988, while awaiting trial on a burglary charge, appellant Annette Owen’s brother, Roger Dale Walston, Jr., escaped from the Murray County jail. After evading authorities for approximately four months, Walston was arrested in March 1989 near his home and the adjacent home of appellants during an investigation of a Fannin County shooting. Appellants were arrested and charged with harboring Walston and assisting him to evade capture.

1. Appellants challenge the sufficiency of the evidence to support their conviction. OCGA § 16-10-50 (a) provides that “[a] person commits the offense of hindering the apprehension or punishment of a criminal when, with intention to hinder the apprehension or punishment of a person whom he knows or has reasonable grounds to believe has committed a felony or to be an escaped inmate or prisoner, he: (1) [h] arbors or conceals such person; or (2) [c] onceáis or destroys evidence of the crime.” The State was thus required to prove that appellants knew or had reason to know Walston’s status; that appellants committed one or more acts to harbor or conceal Walston; and their intent. Id.

The evidence at trial showed that appellants were living in Fort Valley when Walston escaped from jail in December 1988. Dan Owen’s Fort Valley employer testified that Owen had admitted to him that he was nervous because Walston had escaped. Shortly thereafter, in February 1989, appellants moved to Gilmer County and rented a house. Annette Owen then bought a car using cash she received from Walston and purchased insurance in her own name. In March 1989 Annette called Melinda Fincher, Walston’s common law wife, and inquired whether she was ready to come live with Walston in Gilmer County. Appellants then met Fincher and escorted her to meet Walston at their rented home. Appellants informed Walston that their landlord also had a mobile home for rent adjacent to their rented house. Walston rented the mobile home using the name “Dale Bishop” and moved in with Fincher, explaining to her that they were living in Gilmer County so that appellants “could hide him.”

When a woman was shot in Fannin County on March 30, 1989, Hugh Hulsey, a passerby, observed her lying in a driveway beside the first of two cars. Hulsey testified that he noted the tag number of the second car as it left the scene and, after assisting the woman and calling an ambulance, he reported that tag number to the authorities. A GBI agent testified that the tag number reported by Hulsey matched that of the car registered to Annette Owen. Fincher testified that after that incident in Fannin County, Walston parked his car at the rear of the rental property, told her it could no longer be driven, and instructed her to keep the lights in their home off and the door locked. Subsequently, Dan Owen drove the car to Annette’s mother’s home in Whitfield County with Annette following him. After Walston’s capture, the car’s tag was found under the sink in appellants’ home.

From the evidence presented, the jury was authorized to conclude beyond a reasonable doubt that appellants knew Walston was an escaped prisoner; that they aided in concealing both Walston and the car; and that their acts were intentional. The evidence was thus sufficient to authorize the convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Compare Pugh v. State, 173 Ga. App. 670 (327 SE2d 745) (1985) (two judges only).

2. Appellants maintain the evidence was insufficient to support their conviction because the State failed to prove by competent evidence either that Walston was an escaped inmate or that he had committed a felony as required by OCGA § 16-10-50. This contention is not supported by the record.

Sheriff Howard Ensley of Murray County testified that on the date Walston was captured in Gilmer County, a Murray County escape warrant was still outstanding and had not been executed, and that it showed that Walston was an escapee. This sufficed to show that Walston was an escaped prisoner and thus under the statute there was no necessity to prove that he had committed a felony.

3. Finally, appellants contend the trial court erred by allowing the State to present unduly prejudicial evidence regarding an unrelated crime committed by Walston and participated in by appellants. The testimony complained of was given, over objection, by Melinda Fincher, who at the time of appellants’ trial had been convicted and sentenced for the same crime for which appellants were being tried. Fincher’s testimony was that neither she nor Walston was working during the time period in question, and that in order to support themselves “[Walston] would steal.” At a different point in her testimony, Fincher testified that appellants were also unemployed and spent time with Walston, sometimes leaving Walston’s home for the day with him, and that on one occasion Walston had returned home with over a thousand dollars “in a sack in his coat,” and told her he had shared half the money with appellants.

Although we note that Fincher’s statement regarding what Walston had told her is obviously hearsay, no objection was made on this basis, and appellants do not now enumerate as error the admission of hearsay. Rather, appellants contend that the jury could reasonably have inferred from Fincher’s testimony that appellants were involved in robberies committed by Walston; that as the State had given no notice to appellants that they intended to introduce evidence of other crimes, the evidence was inadmissible pursuant to USCR 31.3; and that robbery is not a crime similar to hindering the apprehension of a criminal and thus would not have been admissible even had proper notice been given. We do not agree.

Decided February 13, 1992.

Lee R. Taylor, for appellants.

(a) Assuming, without deciding, that appellants’ complicity in Walston’s thievery was a reasonable inference from Fincher’s testimony, “where . . . evidence of other criminal transactions is a part of the res gestae or tends to show motive, or to show a course of conduct pointing toward and leading to the crime or to the concealment of the crime . . . , such evidence is admissible as an exception to [the] general rule [prohibiting admission of such evidence]. [Cits.]” Spurlin v. State, 228 Ga. 2, 5-6 (4) (183 SE2d 765) (1971). Further, assuming that USCR 31.3 applies, subsection (E) of the rule provides, in pertinent part, that “[n]othing in this rule is intended to prohibit the state from introducing evidence of similar transactions or occurrences which are . . . immediately related in time and place to the charge being tried, as part of a single, continuous transaction.”

The crime with which appellants were charged, hindering Walston’s apprehension, was not one accomplished in one act or on one occasion. Rather, the entire course of their dealings with Walston after his escape from jail was a necessary part of the res gestae showing that they had frequent contact with Walston, not infrequent contact as claimed by appellants, and that their time was spent acting to protect Walston and shield him from the public and the authorities. Fincher’s testimony was thus admissible as part of the res gestae. See generally Mosley v. State, 150 Ga. App. 802, 803-804 (2) (258 SE2d 608) (1979). Accordingly, the trial court did not err by permitting the State to introduce this evidence.

(b) Even if allowing this testimony was error, the evidence supporting appellants’ conviction was overwhelming and thus it is highly probable that any such error did not contribute to the jury’s verdict in this case. Williams v. State, 185 Ga. App. 780, 781 (366 SE2d 200) (1988).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

Roger Queen, District Attorney, for appellee.


author: Carley, Presiding Judge.

text:
    A91A2035.
    HESTER et al. v. KROGER COMPANY.
    Decided February 13, 1992.

      Susan A. Wheat, for appellants.

      White, Orrison, Martin & Black, Terence A. Martin, for appellee.

      (415 SE2d 540)
   Carley, Presiding Judge.

As the result of injuries she sustained in a fall, appellant-plaintiff Mrs. Lucy M. Hester and her husband filed suit against appellee-defendant. Appellee answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellee and the instant appeal is taken from that order.

According to the allegations of the complaint, the fall had been caused by “the dangerous and defective condition of the asphalt adjacent to the entrance” to appellee’s store. In her deposition, appellant testified that, as she exited appellee’s store, she stepped into a hole that she had seen before she fell and that she did not recall having been distracted at the time of her fall. Under these circumstances, appellee’s knowledge of the alleged “dangerous and defective” condition on its premises would be immaterial. Whatever knowledge appellee may have had, it obviously was not superior to that of appellant. If appellant’s knowledge was at least equal to that of appellee, appellee’s motion for summary judgment should be granted. Gyles, Inc. v. Turner, 184 Ga. App. 376 (361 SE2d 538) (1987).

Appellant cites later portions of her deposition testimony which she urges should be construed as indicating that she lacked equal knowledge of the hole or had been distracted at the time of her fall. However, the later portions of appellant’s deposition testimony cannot be construed as she contends. A proper construction of the evidence demonstrates that the trial court correctly granted judgment in favor of appellee. “ ‘The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn (the invitee) and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of (this) knowledge, assumes the risks and dangers incident to the known condition.’ [Cits.]” Gyles, Inc. v. Turner, supra at 377.

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A92A0362.
    GUSKY v. CANDLER GENERAL HOSPITAL, INC.
    (415 SE2d 541)
   McMurray, Presiding Judge.

This is the second appearance of this action for damages before this Court. In the first appeal we reversed a judgment entered on a jury verdict in favor of defendant Candler General Hospital, Inc., and against plaintiff Gusky. See Gusky v. Candler Gen. Hosp., 192 Ga. App. 521 (385 SE2d 698). A second trial also resulted in a verdict and judgment in favor of the defendant hospital and plaintiff appeals. Held:

1. Plaintiff’s first two enumerations of error relate to the defendant’s opening statement to the jury. While plaintiff contends that a mistrial, or at least a rebuke of defense counsel was appropriate, there was no objection or motion preserving this issue for appeal. A motion for mistrial by one of plaintiff’s attorneys was withdrawn by a later statement by both of her attorneys that they did not want the trial court to grant a mistrial. Under these circumstances nothing was preserved for appeal. Horan v. Pirkle, 197 Ga. App. 151, 152 (1) (397 SE2d 734); Nodvin v. West, 197 Ga. App. 92, 95 (397 SE2d 581); Goldstein v. Karr, 110 Ga. App. 806 (1) (140 SE2d 40).

2. Plaintiff’s third enumeration of error contends the trial court erred in denying plaintiff’s motion for new trial. At a second deposition of witness Gibson, defense counsel conceded that he had previously stated to Gibson “that he did not have to answer anything that he’d answered before under oath if he did not want to.” On motion for new trial and on this appeal, plaintiff suggests that this remark and certain interruptions of the deposition of Gibson were harmful to plaintiff’s attempt to elicit certain testimony from Gibson. However, even assuming that plaintiff’s counsel’s remarks at the deposition amounted to an objection, the record does not disclose any ruling by the trial court on these issues prior to the ruling on plaintiff’s motion for new trial. A party cannot ignore that which he considers to be an injustice during or prior to the trial of the case in hopes of obtaining a favorable verdict and then enumerate that alleged injustice as error on appeal when the verdict proves to be adverse. Neiman-Marcus v. Gammage, 191 Ga. App. 510, 511 (382 SE2d 208). By failing to elicit a ruling on her objections stated at the second Gibson deposition or otherwise seeking remedial action by the trial court prior to the return of the verdict, plaintiff waived her right to appeal the issues raised by this enumeration of error.

3. In her fourth enumeration of error, plaintiff complains of certain hearsay testimony elicited by defense counsel upon the cross-examination of plaintiffs guardian and stepmother, Ms. Pauline K. Du-Four. The statements at issue are the pre-incapacitation admissions of the plaintiff and were properly admitted. OCGA § 24-3-31; W. T. Harvey Lumber Co. v. J. M. Wells Lumber Co., 104 Ga. App. 498 (2) (122 SE2d 143).

Decided February 13, 1992.

Bergen & Bergen, Joseph B. Bergen, Frederick S. Bergen, for appellant.

Bouhan, Williams & Levy, Frank W. Seiler, Peter D. Muller, for appellee.

Another question, which might have elicited inadmissible hearsay if answered, was never answered by the witness. City of Jefferson v. Maddox, 116 Ga. App. 51, 55 (5) (156 SE2d 553). And, in other instances plaintiff’s objection was sustained and the witness was not permitted to answer. Bagwell v. Hunt, 174 Ga. App. 148, 149 (2) (329 SE2d 215). This enumeration of error is without merit.

4. Plaintiff’s final enumeration of error complains of defense counsel contacting the jurors after the verdict was rendered in order to obtain affidavits to sustain the verdict under the provisions of OCGA § 9-10-9. The numerous federal cases cited by plaintiff in support of this enumeration are inapposite as Georgia law does not contain any prohibition of post-verdict contact with jurors comparable to that upon which those federal cases are predicated. The record does not reflect any improper contact with the jurors.

5. Defendant’s motion for frivolous appeal penalty pursuant to Court of Appeals Rule 26 (b) is denied.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A91A1462. A91A1463.
    SAKAS et al. v. JESSEE et al. BECKHAM et al. v. JESSEE et al.
    (415 SE2d 670)
   Birdsong, Presiding Judge.

Jeffrey L. Sakas and Walter H. Beckham appeal the grant of summary judgment to the defendant, their former law partner C. James Jessee, Jr., in a suit filed by them for accounting and a share of attorney fees earned by Jessee. The status of the parties as former law “partners” in their professional corporation was made an issue, so we use the word idiomatically here unless noted otherwise. Appellants contend they were entitled to share in the attorney fees earned in the “trust abuse” class action case of Elizabeth R. Meyer v. The Citizens & Southern National Bank, it being one of several similar cases which the parties’ former firm of Jessee, Ritchie and Duncan was attempting to put together as a class action under the general name of the “Fehskens litigation.” The Fehskens case had been denied class action status in 1981, and this ruling was being appealed in 1982, when the firm dissolved and the partners entered a comprehensive “P.C. ■ Shareholder Agreement.” The agreement distributed responsibility among the partners for certain cases, files and matters, and provided for a pro rata distribution via a trustee of one-third of the fees received by the handling attorney in each such case, two-thirds of the fee of each such named case going to the handling attorney. The Agreement specifically provided that cases, files and matters not named on the members’ lists would remain the property of Jessee. The particular assignment or distribution of the named cases among the five members was made subject to the client’s approval in each case. This Agreement was executed by the partners on July 31, 1982.

In the “Schedule C List of Contingency Cases” appended to the Shareholder Agreement, Beckham was assigned Jacqueline Fehskens v. The Citizens and Southern National Bank, which was the trust abuse case. Beckham had spent thousands of hours since the late 1970s in investigation and legal work in connection with the Fehskens case and other trust abuse cases which the firm hoped to certify as a class action under Mrs. Fehskens’ name. Jacqueline Fehskens v. The Citizens and Southern National Bank also appears as the last listed case under Jessee’s name (although as noted below, it was apparently inserted by Jessee on Jessee’s list unbeknownst to the other partners after they had seen and initialed the original draft “Schedule C” list of contingency cases).

Beckham contends Jessee concealed from the partners the referral of another trust abuse case against C & S Bank, the case of a Florida resident, Mrs. Elizabeth Meyer, so that the Meyer case could not be provided for in the July 31, 1982 Shareholders Agreement because of Jessee’s concealment. Jessee contends he was referred the case in late May or early June, 1982, that all the partners were aware of it prior to July 31, 1982; and that because of its significance in giving diversity jurisdiction in federal court, the partners discussed the Meyer case at length prior to July 31, 1982. Sakas concedes in his brief that he knew of the referral of the Meyer case prior to his execution of the Shareholders Agreement, for he asserts that the Meyer case was “treated as a part of the Fehskens matter in the firm both before the July 31, 1982 division agreement and after.” Beckham asserts Jessee does not contend he notified Ritchie or Duncan of the Meyer case and neither Jessee nor Sakas disclosed to Beckham the existence of the Meyer case prior to July 31, 1982. However, on August 19, 1982, Beckham wrote a memo to Jessee entitled “RE: Jacqueline Fehskens vs. C & S National Bank” and stating “It appears that Mrs. Elizabeth Meyer is a potential class member in the Fehskens litigation. She can be advised that we are currently attempting to perfect an appeal of the class action matter in the Supreme Court of Georgia.” In fact appellants point to this memo as proof that mention of the Fehskens litigation or the Fehskens case by the firm was intended to mean and include all the trust abuse cases which the firm hoped to certify as a class action under the name of Jacqueline Fehskens.

This litigation concerns the fees received in the Meyer case, which was settled in 1987 for $25,000,000, as to which Jessee reported his fee as $700,000; this being his share of the $7,000,000 shared by four firms. However, the dissatisfaction of the partners as parties to the Shareholders Agreement, particularly appellant Beckham, with the conduct surrounding the Agreement was aroused almost immediately after its execution on July 31, 1982. Beckham asserted to the trustee by at least December 1, 1982, that after he and the others had initialed the Agreement’s “Schedule C” listing and assigning certain cases to the partners, Jessee had inserted onto the end of the list of cases assigned to him, the name of a case which was assigned to Beck-ham, Fehskens v. The Citizens and Southern National Bank. It appears that after Beckham complained to the trustee of Jessee’s “despicable” fraudulent act of altering the list of cases to assign himself Beckham’s Fehskens case (the trustee agreed this alteration should not be binding on the members), Jessee obtained an agreement from Mrs. Fehskens that he (Jessee), and not Beckham, should be the attorney handling her case, whereupon in accordance with terms of the Agreement, Beckham withdrew from the Fehskens case.

Appellants contend the listing of Jacqueline Fehskens v. The Citizens and Southern National Bank (which never became a class action case) was intended to, or did, include the spectrum of potential class-action cases, particularly the Meyer case, which did become a class action case in federal court and carried the Fehskens case as a member of the class. Held:

1. Construction of written contracts, even if they are ambiguous in some respect, is a matter for the court, and no jury question arises unless after application of applicable rules of construction the ambiguity remains (Ogletree v. Jackson, 184 Ga. App. 373, 374 (361 SE2d 535)), and no construction of the contract is required or even permissible when the language employed by the parties in the contract is plain, unambiguos and capable of only one reasonable interpretation. Stone v. Palm Pool Prods., 198 Ga. App. 751, 752 (403 SE2d 69). We agree with the trial court that the pertinent terms of the Shareholders Agreement are clear and unambiguous and susceptible to only one reasonable interpretation: that the listing of Jacqueline Fehskens v. The Citizens and Southern National Bank, referred only to the individual case involving Mrs. Fehskens, and did not include the realm of some 19-20 potential class action cases involving trust abuse against C & S Bank, and did not include the Meyer case. Inasmuch as the Agreement was constructed by appellants, who are experienced attorneys, and their own legal counsel, and was intended to comprehensively define, relegate and conclude all firm matters with certainty, it invites too much uncertainty as to a matter of too much now-claimed importance to the partners, to infer that in the minds of all the executing partners the simple description of one case involving one plaintiff, which had already been denied the status of a class action case, was intended to encompass a range of cases and potential cases which the partners had several years earlier, in a separate written agreement with Beckham to handle the cases, loosely called the Fehskens litigation.

The language in the P.C. Shareholders Agreement describing the Fehskens case is plain and subject to but one interpretation, and is not susceptible to being construed as representing other matters or cases that might have ultimately become part of the class action headed by another case. Examining all the circumstances surrounding the making of the Agreement (OCGA § 13-2-2 (1)), it must be assumed that the partners knew there were some 19 other “trust abuse” cases which they had hoped to consolidate in a Fehskens class action case; none of these was mentioned on the Schedule C list as being included in the mention of Fehskens v. C & S Bank. The fate of those other cases is not presented to this court, and we see no reason to infer that the mention of the Fehskens case included the Meyer case when it evidently is not claimed to have included the other 19 trust abuse cases then known to all partners to be held by the firm.

We conclude the contract must be interpreted according to its plain words. If a plain and certain provision in a contract might be thrown into question by the parties’ assertion that they meant something else by it, no contract would be too uncertain to enforce. Whatever appellants might wish they had said in the Shareholders Agreement, they did not say it, and what they did say is unambiguous; it cannot be made ambiguous by the mere assertion that it was meant to include other matters which it did not mention. The contract provides plainly that it was the intent of the parties to settle and effect a resolution of all claims and disputes of every kind and nature among them regarding matters related to the pending litigation cases; that it is the entire agreement of the parties; and that they released and waived all claims against each other of any kind “whether known or unknown,” (emphasis supplied) up to the signing of the Agreement. No grounds at law or in the contract itself exist to open this unambiguous contract to jury examination. As to the claim at issue, which is for accounting and allocation of one-third of Jessee’s fee in the Meyer case and to appellants as pro rata share under the Shareholders Agreement, the award of summary judgment to Jessee and denial of summary judgments to appellants Beckham and Sakas based on interpretation of the contract is affirmed.

2. As to Beckham’s claim that Jessee concealed the existence of the Meyer case from him prior to his execution of the Agreement, it is clear that since Beckham wrote Jessee a memo on August 19, 1982, concerning the inclusion of the Meyer case in the Fehskens class action, Beckham knew of the Meyer case at least as of that date. This, and the matter of Jessee’s appropriation of the Fehskens case to his list of cases and Jessee’s subsequent “solicitation” (as Beckham contends) of Mrs. Fehskens to let Jessee handle her case, are matters as to which appellant Beckham should have sought a reformation of the Agreement or other appropriate relief, at or near the time these things came to light. Whatever might have been the equities at that time, after the passage of five years the Meyer case assumed a very different form; as to this form the federal court, directly faced with the matter, held Beckham had had no role and was in fact not entitled to attorney fees. Whether Jessee had kept or taken the case fairly or unfairly, it was not appropriate for Beckham to keep silent about his interest for five years while the case wended through the courts, propelled by Jessee and others, and metamorphosed into a successful class action which reaped a bounty for the attorneys involved. What happened here was known to Beckham in August and December, 1982; he should not have waited to complain of it until Jessee and others pushed the case to a successful conclusion in 1987. In the facts of this particular case, the doctrine of laches takes effect with regard to any mitigation proposed by Beckham to the plain words of the Agreement, upon which Jessee, fairly or unfairly, in 1982 did take the Meyer case and the Fehskens case and by his labors turned them to a successful resolution five years later. See generally OCGA § 23-1-25; Beaulieu &c. v. L. T. Dennard & Co., 253 Ga. 21 (315 SE2d 889). The same applies to Beckham’s contention that Jessee, as partner, was in the position of agent to Beckham under OCGA § 14-8-9 (1), and that Jessee’s fraudulent act of inserting the Fehskens case in the list of cases relegated to him after the members had agreed and initialed the Agreement should operate to deny him any fee.

The trial court did not err in dismissing Count II of Beckham’s complaint (as to fraud) and committed no harmful error in finding that Beckham knew of the Meyer claim prior to July 31, 1982. We affirm the grant of summary judgment to Jessee and denial of summary judgment to Beckham and Sakas as to any interest in the Meyer case.

Decided January 30, 1992

Reconsideration denied February 17, 1992

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellants (case no. A91A1462).

Hendrick, Spanos & Phillips, Peter R. Spanos, Lori Ann Olejniczak, for appellants (case no. A91A1463).

C. James Jessee, Jr., pro se.

3. It appears the trial court failed to address appellants’ entitlement to a one-third share of Jessee’s fee as to the single case of Jacqueline Fehskens, which by virtue of being listed on the Schedule C list of contingency cases was subject to pro rata distribution among the former partners. Since there appears to be no genuine dispute that this case was subject to pro rata distribution of one-third of the fee in the Fehskens case among the former partners, this issue is excepted from the grant of summary judgment to Jessee and is remanded to the trial court for proper determination under the evidence and the issues raised.

^Judgments affirmed in part and reversed in part.

Pope and Cooper, JJ., concur.


text:
    A91A1610.
    A91A1611.
    STEIMER et al. v. NORTHSIDE BUILDING SUPPLY COMPANY, INC. CROW et al. v. NORTHSIDE BUILDING SUPPLY COMPANY, INC.
    (415 SE2d 688)
   Sognier, Chief Judge.

Northside Building Supply Company, Inc., which supplied materials for the construction of a residence, brought suit for conspiracy to defraud against Norma Steimer and Thomas Steimer, the buyers of the house; E. T. Kassinger, Inc. (“ETK”), the alleged builder of the house; Edward T. Kassinger, the president and principal shareholder of ETK; and Roger L. Crow, who under power of attorney from Kassinger executed a contractor’s affidavit at the closing of the house sale. A jury awarded damages and attorney fees to Northside, and judgment was entered against all defendants. The Steimers appeal in Case No. A91A1610, and Kassinger, Crow, and ETK appeal in Case No. A91A1611, adopting the Steimers’ enumerations and arguments. We have consolidated the two appeals for decision.

Construed to support the jury’s verdict, the evidence presented at trial established that in 1987 the Steimers agreed to purchase a house to be constructed by Chip Kassinger, Inc. (“CKI”), a company wholly owned by Kassinger, on a lot owned by Kassinger. Ms. Steimer and Kassinger had a business relationship, as she was a residential real estate agent and had sold eight houses he had developed. Construction began in November 1987, with the building materials supplied primarily by appellee. At trial, the parties sharply disputed whether the materials were purchased by ETK, as appellee contended, or by CKI, as contended by appellants. CKI’s contractual obligations to appellee were discharged in bankruptcy in late 1988.

By May 1988 the Steimers had sold their current home and had been served with a dispossessory warrant filed by the purchaser of that home. Although the new house was not yet completed, Kassinger agreed to close the sale on June 10, 1988 as an accommodation to the Steimers. At the closing, Crow executed a contractor’s affidavit on behalf of Kassinger individually in which he averred that “all labor, all services, and all materials entering into the [construction of the house] have been fully and completely paid for” and that the affidavit was “made by deponent for the purpose of influencing [the Steimers’ mortgage lender] to place a loan on the above described property, and to induce [the Steimers] to purchase said property.” The loan proceeds then were disbursed, title was transferred from Kassinger to the Steimers, and the Steimers took possession of the house.

It is undisputed that at the time Crow executed this affidavit both he and Kassinger knew that appellee and numerous other suppliers and subcontractors had not been paid in full. Crow also testified that he heard the Steimers discussing the status of unpaid bills at the closing. Appellee had not filed either a preliminary notice of lien rights or a claim of lien prior to the closing. When Paul Donelson, appellee’s president, approached Kassinger and Crow in August 1988 to discuss the outstanding bills, he learned that the closing had occurred and the contractor’s affidavit had been executed.

1. Appellants first contend the trial court erred by denying their motions for directed verdict because there was no evidence of a conspiracy to defraud appellee. To recover on a fraud claim, a plaintiff must prove that the defendant knowingly made false representations with the intent to deceive the plaintiff, that the plaintiff relied on the misrepresentations, and that the plaintiff was injured or damaged as a result. E.g., Eckerd’s Columbia v. Moore, 155 Ga. App. 4, 5 (270 SE2d 249) (1980). Here, appellee did establish that Crow and Kassinger knowingly made false representations by giving the contractor’s affidavit, and there was evidence from which the jury could infer that the Steimers participated knowingly in or induced this misrepresentation. Appellee also showed that it was damaged, for the giving of a duly executed affidavit under the circumstances set forth in OCGA § 44-14-361.2 (a) (2), even if false, dissolved appellee’s lien rights under OCGA § 44-14-361 (a) (6). Lowe’s of Ga. v. Merwin, 156 Ga. App. 876 (1) (275 SE2d 812) (1981). The duly executed affidavit was given by Kassinger, the owner, “when conveying title in a bona fide sale . . . transaction” and stated that all obligations for labor and materials had been paid, OCGA § 44-14-361.2 (a) (2) (A), and was given as part of a loan and sale closing at a time when appellee had not filed either a claim of lien or a preliminary notice of lien rights. Id. at (a) (2) (B).

Decided February 3, 1992

Reconsideration denied February 17, 1992

Allman & Lanner, David E. Allman, for appellants (case no. A91A1610).

However, we agree with appellants that appellee did not establish the essential elements of false representations made with the intent to deceive appellee and action or forbearance by appellee in reliance upon such misrepresentations. See Clements v. Warner Robins Supply Co., 235 Ga. 612, 613-614 (2) (221 SE2d 35) (1975). The only misrepresentation proved at trial was made to the lender, not to appellee. Moreover, “ ‘[t]here was no evidence that [appellee] relied on the representations concerning [payment of bills for labor and materials]. Rather than relying on the representations, [appellee] disputed them as soon as ([it] had knowledge thereof) and maintained [its] position consistently thereafter. [Appellee] never acted on them except in furtherance of [its] denial of their validity. . . .’ [Cit.]” Walker v. Hurd, 195 Ga. App. 855, 856 (1) (394 SE2d 925) (1990). Thus, appellee did not state a claim for fraud. See id. (no fraud claim by landowner against surveyor where misrepresentation was made by surveyor to third party and not relied upon by landowner); see also Davis v. Northside Realty Assoc., 165 Ga. App. 96, 97-98 (2) (299 SE2d 186) (1983) (no recovery allowed on fraud claim arising from real estate transaction where plaintiffs acted in reliance upon third party’s statements rather than representations of defendants); Hubacher v. Volkswagen Central, 164 Ga. App. 791, 792-793 (1) (298 SE2d 533) (1982) (plaintiff, purchaser of used car from person who bought it from dealer, had no fraud claim against dealer for misrepresentation made to plaintiff’s seller). Accordingly, we hold the trial court erred by denying appellants’ motions for directed verdict.

2. Because of our decision in Division 1, we need not address appellants’ remaining enumerations.

Judgments reversed.

McMurray, P. J., and Andrews, J., concur.

Rafe Banks III, for appellants (case no. A91A1611).

Richardson, Chenggis & Constantinides, George G. Chenggis, for appellee.

       We note that the facts adduced at trial might have been sufficient to authorize a jury verdict against ETK on account, but appellee did not allege such a claim, and the verdict form the parties agreed to submit to the jury limited the possible verdict to appellee’s claim that appellants “did conspire and commit fraud.”


author: Beasley, Judge.

text:
    A91A1901.
    BRIDGES v. INTERCONTINENTAL AFFILIATES.
    (415 SE2d 475)
   Beasley, Judge.

Intercontinental Affiliates brought this action against Bridges for breach of an agreement in settlement of litigation instituted by Intercontinental against Bridges and others in the State of New York. Bridges appeals the trial court’s grant of Intercontinental’s motion for summary judgment.

Trans-Rig Associates Limited Partnership was organized in Connecticut in 1981 to engage in the business of providing contract drilling services to third parties searching for oil, gas, and other hydrocarbons. The partnership purchased a land-based oil drilling rig for $7,500,000. To finance acquisition of the drilling rig, the partnership obtained a loan from Chase Manhattan Bank (N.A.) in the amount of $4,340,000, executing a loan agreement and promissory notes. Chase Manhattan received a purchase-money security interest. Each limited partner executed a limited partner assumption agreement, personally obligating the limited partner to guarantee his or her pro rata share of the principal amount of the $4,340,000 bank loan.

Within several years, the natural gas industry went into decline. Trans-Rig was unable to lease the rig out, and it defaulted on its loan obligations. Involuntary bankruptcy proceedings were commenced against it in Oklahoma, and an automatic stay prohibited any action against Trans-Rig, including repossession of the rig.

Chase Manhattan assigned the loan to Intercontinental Affiliates, a New York limited partnership. Intercontinental sued the limited partners in New York, based on their guarantees of the promissory notes pursuant to the loan agreement. In April 1988, summary judgment was granted in favor of Intercontinental on the issue of liability but not on damages, since Intercontinental had failed to account for payments made.

The judgment was affirmed on appeal in October, and the parties to the New York litigation entered into a settlement agreement in December. The settling defendants, individually and not jointly, obligated themselves to pay varying amounts. In paragraph 1, each settling defendant, subject to paragraph 2, was required to pay 100 percent of the principal amount of each settling defendant’s guarantee, which in Bridges’ case was $135,750; this reflected a waiver of interest and attorney fees. In paragraph 2, the settling defendants were required to pay 110 percent of the principal amount, reflecting a payment of a portion of interest and a waiver of the remainder of interest as well as attorney fees, if the settling defendants obligated to pay a total of $2,715,000 did not execute the Agreement by December 1, 1988. Paragraph 7 provided: “The Settling Defendants acknowledge that Intercontinental, as a creditor, is in the process of attempting to execute against the land-based drilling rig owned by Trans-Rig, and said Settling Defendants hereby waive any claim to an interest in the rig or the proceeds of any sale of the rig and rights they might have in this regard to Intercontinental.”

In a promissory note dated December 1, 1988, Bridges agreed to pay Intercontinental $135,750 plus 9 percent annual interest in installments ending on December 31, 1989; in the event of any default, he agreed to pay $179,674.80 representing the principal amount plus amounts previously waived (less any portion paid) plus 12 percent annual interest, as well as reasonable costs of collection including attorney fees.

Eight months later, Intercontinental instituted the present action against Bridges to recover, among other items, the $179,674.80 in principal, plus interest and costs of collection, including court costs and attorney fees under the note. During the pendency of this litigation, Bridges became aware that in April 1989 Intercontinental had obtained an order lifting the stay in bankruptcy so as to enable it to repossess the rig, which then had a useful life in the range of 20 years. Bridges became aware that Intercontinental had enforced the other limited partners’ guarantees, obtaining payments in the amount of $3,805,000. Based on these facts, Bridges sought to discover the facts and circumstances surrounding Intercontinental’s repossession and possible sale of the rig, on the theory that Intercontinental had already obtained full payment of its loan.

The trial court disallowed Bridges’ discovery request on the ground that Bridges had waived any claim to an interest in the rig or the proceeds of its sale under paragraph 7 of the settlement agreement. For this reason, the trial court also ruled that other issues concerning Intercontinental’s repossession and disposition of the rig are not material in the instant action. Bridges enumerates as error the trial court’s grant of Intercontinental’s motion for summary judgment and its denial of his discovery request.

1. The notemaker Bridges argues that although he waived his right to a redemption of collateral, i.e., the rig, under OCGA § 11-9-506 and to share in any surplus cash proceeds resulting from the sale of the rig, he is nonetheless entitled to a credit for the monies received or value obtained by Intercontinental through its repossession and possible sale of the rig, if such monies or value, together with the sums already collected from the other limited partners, exceed the amount of the outstanding debt.

But Intercontinental’s suit against Bridges is based on his breach of the 1988 settlement agreement and promissory note, and not the earlier limited partner assumption agreement. Paragraph 7 of the settlement agreement plainly states that the limited partners waived any rights in the rig or its proceeds. Paragraph 7 is not reasonably subject to the narrowing interpretation Bridges seeks to place on it, and Bridges has made no showing that the settlement agreement is unenforceable for lack of consideration or for any other reason. See generally OCGA § 13-4-101; Hinely v. Barrow, 169 Ga. App. 529, 530 (313 SE2d 739) (1984). Accordingly, the trial court did not err in ruling that Intercontinental’s repossession and disposition of the rig are not germane to any issue here.

2. It necessarily follows that there is no merit in Bridges’ arguments that there are material issues of fact as to whether Intercontinental is precluded from obtaining a recovery against him by failing to give him reasonable notification of any sale or disposition of the rig and/or by failing to conduct any sale of the rig in a commercially reasonable manner.

“[OCGA § 11-9-504 (3)] controls the disposition of collateral subsequent to default. . . . . [E]very aspect of the disposition includ-

ing the method, manner, time, place and terms must be commercially reasonable.’ ‘(A) creditor who fails to prove that notice of sale was given to the debtor (where required) or fails to prove that the disposition (sale) . . . was commercially reasonable, is barred from obtaining a deficiency judgment, [cit.] . . .’” First Nat. Bank &c. v. Rivercliff Hardware, 161 Ga. App. 259, 260 (287 SE2d 701) (1982).

Intercontinental is not seeking a deficiency judgment. Compare Emmons v. Burkett, 256 Ga. 855 (353 SE2d 908) (1987); ITT Terryphone Corp. v. Modems Plus, 171 Ga. App. 710 (320 SE2d 784) (1984). Moreover, as recognized in Rivercliff, reasonable notification of the time and place of the sale or intended disposition of collateral by the secured party to the debtor is not always required. OCGA § 11-9-504 (3) provides that notice is not required if the debtor has “signed after default a statement renouncing or modifying his right to notification of sale.” Paragraph 7 of the settlement agreement constitutes, among other things, such a post-default renunciation.

Intercontinental’s motion for summary judgment was properly granted, as Bridges has not met his appellate burden. Concert Promotions v. Haas & Dodd, 167 Ga. App. 883, 885 (1) (307 SE2d 763) (1983).

3. Intercontinental’s motion for damages for frivolous appeal is denied.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.

Decided January 31, 1992

Reconsideration denied Fbruary 17, 1992

Jones, Brown, Brennan & Eastwood, Myles E. Eastwood, David N. Lefkowitz, James Horace Wood, for appellant.

Fox & Adler, Pamela D. Adler, Elizabeth L. Guerra, for appellee.


author: Judge Arnold Shulman.

text:
    A91A1905.
    WEATHERS v. THE STATE.
    (415 SE2d 690)
   Judge Arnold Shulman.

The appellant was convicted of aggravated assault and driving under the influence of alcohol. This appeal is from the denial of his motion for a new trial; the appellant seeks reversal of his conviction on the charge of aggravated assault.

The complaining witnesses, a woman and her minor daughter, testified that shortly after they entered onto northbound Interstate 85 at the Buford/Lawrenceville ramp to return from Atlanta to their home in Hartwell, Georgia, they observed and commented on an orange/brown truck with a white camper top also travelling north on the highway and at a speed noticeably slower than the other traffic. About 30 minutes later, after nightfall, a vehicle with its high beams illuminated began to follow the victims’ car. In an effort to discourage that vehicle and escape the glare of the lights, the victim engaged in several maneuvers, including decelerating and passing, all to no avail. When she spotted the well-lighted exit at Commerce, she decided to exit there, but was struck from the rear when she slowed down to turn onto the ramp. The impact caused her to miss the exit, and both she and her daughter became frightened. The daughter, who turned around when their car was struck, told her mother that the vehicle that hit them was the truck with the camper they had noticed previously. The victim twice more tried to exit the highway and both times was struck by the pursuing vehicle, which at one point, with its headlights extinguished, pushed the victims’ car along the road. During this period, the victim was blowing her horn and flashing her lights in an effort to summon help. Finally, she accelerated to approximately 98 miles per hour and exited when she saw a well-lighted service station on the opposite side of the interstate highway. However, she mistakenly turned left onto the entrance ramp to southbound Interstate 85 instead of the road which led to the station parking area. Almost immediately she realized the error, stopped her car, and rolled down the windows, and both she and her daughter began screaming for help. The daughter then saw that a truck with a camper top was behind them on the ramp and told her mother to “do something because he’s behind us.” The victim testified that the truck had stopped behind them and that the driver had gotten out and was walking toward their car. In an effort to evade the driver and get to the service station, she made a u-turn on the ramp and in doing so passed the driver. She testified that as she did so, she was able' to observe him in the headlights of her car and to hear him say, “I thought. . . .” Another truck driver who had been at the service station and had heard the victims’ screams approached to offer assistance when he observed both vehicles on the southbound entrance ramp. As he did so, the driver of the camper truck turned around to go back to his truck. This witness testified that as the driver reached the door of his truck, he turned around to face the witness and instructed the witness to “[t]ell the woman that I didn’t mean it on the road. That I didn’t mean to hurt ... I didn’t mean her no harm.” He then climbed into his truck and sped away. A description of the truck and tag number was given to the police. Approximately 20 minutes later, the appellant was apprehended by a sheriff’s deputy and returned to the service station, where he and his truck were identified by the victims and the witness.

The appellant and his wife both testified that during the time the victims’ car was being pursued and bumped they were driving to, repairing, and retrieving the appellant’s wife’s car which had become disabled on her return to their Mayesville home from a trip to South Carolina. That car had been left by the appellant’s wife at a service station four exits north of the Mayesville exit on Interstate 85. They both testified that after the appellant worked on her car, she drove it back to their home and was followed by the appellant until he was apprehended by the police on southbound Interstate 85.

1. In his first enumeration of error, the appellant contends that the trial court erred in excluding the testimony of an alibi witness because that witness, having been sworn and instructed by the court to remain sequestered, instead remained present in the courtroom during an entire day’s testimony. Although there have been conflicting cases regarding the competency to testify of witnesses who have violated the rule of sequestration, the Supreme Court has held that “a witness who has violated the rule of sequestration in a criminal case shall not be prevented from testifying. [Cits.]” Jordan v. State, 247 Ga. 328, 347 (10) (276 SE2d 224) (1981). Violation of the rule by any witness in a criminal trial goes to the issue of credibility, not admissibility, of the witness’ testimony. O’Kelley v. State, 175 Ga. App. 503 (1) (333 SE2d 838) (1985). Thus, it was error for the trial court to exclude the testimony of the appellant’s witness, however, at the preliminary hearing, that witness testified only as to his prior use of the appellant’s vehicle and the reason he had left beer cans in the back. His testimony in no way buttressed the appellant’s alibi. Although the excluded testimony might have been considered by the jury with respect to the DUI charge, the appellant has not requested the reversal of that charge and there was, in any event, evidence sufficient for a jury to have convicted the appellant on that charge. The trial court’s error in excluding the appellant’s witness’ testimony was harmless.

2. The appellant also contends that the trial court erred in denying his motion to suppress the in-court identification testimony as tainted by an impermissibly suggestive one-person show-up identification. This court has thoroughly considered the dangers inherent in the practice of bringing single suspects to confront witnesses for the purpose of pre-trial identification, in particular, the danger of the “‘substantial likelihood of irreparable misidentification.’ [Cit.]” (Daniel v. State, 150 Ga. App. 798, 799 (1) (258 SE2d 604) (1979)). To evaluate that likelihood, we apply the test enunciated in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) which requires that we consider the witnesses’ opportunity to view the suspect at the time of the offense, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description and their level of certainty. However, both state and federal courts have also recognized consistently those countervailing considerations which may render the one-on-one confrontation permissible if not desirable. These include the necessity of a speedy police investigation and the necessity to resolve promptly any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent subjects. Bennefield v. Brown, 228 Ga. 705 (187 SE2d 865) (1972); Arnold v. State, 155 Ga. App. 782 (272 SE2d 751) (1980); see Bates v. United States, 405 F2d 1104 (D.C. Cir. 1968). In the present case, the victim testified that she recognized the truck as the vehicle which had pursued them and was able to observe the appellant in the light of her headlights as she drove up the ramp. The witness testified that the “whole [area] is well-lighted,” that he got a good look at the appellant, and that he was paying attention to the appellant as the appellant directed his remarks to the witness. The victim gave the sheriff’s department an accurate and reasonably detailed description of the appellant prior to his return to the service station with the deputy, and both were quite certain that the appellant was the person they had seen on the ramp and described to the sheriff’s department over the telephone. In view of their testimony, the brief interval between their opportunity to observe the appellant and the truck on the ramp and his appearance before them for identification, and the presence in this case of other circumstances weighing in favor of such a confrontation (in other words, considering the totality of the circumstances), we hold that the trial court did not err in denying the appellant’s motion to suppress the in-court identification testimony.

Decided February 4, 1992

Reconsideration denied February 17, 1992

Lavender & Lavender, Robert W. Lavender, Michelle C. Feinberg, for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

3. The appellant further contends that the trial court erred in failing to charge the jury on his sole defense of alibi. Notwithstanding that the appellant’s sole defense was the alibi offered by him and corroborated by his wife, he did not request the court to charge on alibi. In cases “ ‘[w]here the defense of alibi and the question of personal identity are virtually the same defense, the omission of the court to instruct separately on alibi is not error. . . .’ [Cit.]” Newby v. State, 161 Ga. App. 805, 807 (3) (288 SE2d 889) (1982); Cooper v. State, 237 Ga. 288, 290 (2) (227 SE2d 745) (1976). The trial court in this case did charge the jury extensively on the issue of identity. The charge included a thorough discussion of the elements of the Neil v. Biggers, supra, test and the specific instruction that if the jury did not believe that the appellant had been sufficiently identified as the perpetrator of the offense, or if it had any other reasonable doubt that it must acquit. The court also alluded to the appellant’s alibi by instructing the jury that the appellant need not prove that another person committed the offense charged. Inasmuch as we have held that the trial court did not err by allowing the in-court identification of the appellant and the jury entertained no reasonable doubt as to the appellant’s identity as the perpetrator, we would be led to conclude that the omission of a specific charge on the appellant’s sole defense of alibi was not error. However, when questioned by the court at the conclusion of its charge to the jury, the appellant neither objected to the charge nor reserved a right so to do at a later time. Having waived the alleged error, we affirm the conviction of the appellant on both counts of the indictment.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1731.
    POWELL v. BANK SOUTH, N.A.
    (415 SE2d 543)
   Judge Arnold Shulman.

This is an appeal from a grant of summary judgment to the appellee bank in a dispossessory proceeding instituted by it. In November of 1982, the appellant and her husband, J. M. “Mike” Powell, executed and delivered to the Cobb Bank & Trust Company a deed to secure debt. The deed conveyed certain real property located in Cobb County and secured an indebtedness ultimately evidenced by three promissory notes, one of which was jointly executed by the appellant and Mr. Powell and two of which were executed by Mr. Powell alone. As successor by merger to the Cobb Bank & Trust Company and to Bank of the South, Cobb County, the appellee became the holder of these debt instruments.

During the course of previous litigation, the parties entered into an agreement settling all claims with respect to the indebtedness evidenced by the notes. However, the Powells failed to comply with the terms of that agreement; and on November 10, 1988, an order was entered which, inter alia, authorized the appellee to proceed with a sale of the property pursuant to the power of sale contained in the security deed. The appellee purchased the property at the ensuing sale, which took place on July 3, 1990, and subsequently demanded possession of the premises from the Powells. However, the Powells refused to vacate; and on July 11, 1990, the appellee instituted the present dispossessory proceedings against them pursuant to OCGA § 44-7-50.

In their answer, the Powells contested the appellee’s title and denied that they were tenants at sufferance, but did not dispute any of the facts asserted by the appellee. Following a hearing, the trial court awarded summary judgment to the appellee and issued a writ of possession for the property. The appellant, acting pro se, brings this appeal from that order.

1. The appellant contends, in separate enumerations of error, that the appellee did not acquire title to the property through its exercise of the power of sale in the security deed and that she (the appellant) is therefore not subject to dispossession by the appellee. She bases her attack on the appellee’s title on the fact that the property had previously been foreclosed by the Cobb County Tax Commissioner. (The property was, however, subsequently quitclaimed to the appellant by the tax sale purchaser pursuant to OCGA § 48-4-44.) However, her only “argument” in support of any of her enumerations of error consists of bare statements of her allegations, along with an admission that the appellee’s superior title cannot be attacked. Assuming arguendo that the appellant has not abandoned her enumerations of error pursuant to Court of Appeals Rule 15 (c) (2), “[i]t is abundantly apparent that appellee, as the purchaser at the sale under power, was vested with sufficient title to institute dispossessory proceedings under [OCGA § 44-7-50]. [Cit.] It is also equally as clear . . . that appellant was a tenant at sufferance and, as such, was subject to being summarily dispossessed.” Remy v. Citicorp &c. Fin. Center, 159 Ga. App. 726, 728 (285 SE2d 76) (1981). The appellant’s attempt to attack the appellee’s title in this dispossessory proceeding simply is not permissible under the applicable statutes. See Roberts v. Collins, 199 Ga. App. 614 (4) (405 SE2d 508) (1991); Walker v. Camp, 121 Ga. App. 765 (3) (175 SE2d 53) (1970).

Decided February 17, 1992.

Deborah K. Powell, pro se.

Kilpatrick & Cody, Alan R. Perry, Jr., J. William Veatch III, for appellee.

2. The appellee has moved this court to assess a frivolous appeal penalty against the appellant in the amount of $500, pursuant to Court of Appeals Rule 26 (b). We agree that in light of the foregoing authorities and the lack of argument presented by the appellant, there was no reasonable basis upon which she could have anticipated a reversal of the trial court’s judgment, and we thus conclude that the appeal was brought for the purpose of delay only. (This is particularly apparent in light of the fact that the appellant has paid the appellee no money whatsoever, either in the form of debt service or rent, during the pendency of these proceedings.) Accordingly, we assess a frivolous appeal penalty against the appellant in the amount of $500. The state court is directed to enter judgment against the appellant in such amount upon the return of the remittitur in this case.

Judgment affirmed with direction.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1854.
    HARGROVE v. THE STATE.
    (415 SE2d 708)
   Beasley, Judge.

Following denial of his motion for new trial, Hargrove appeals his convictions for four counts of armed robbery, OCGA § 16-8-41 (a).

A police officer was advised by several people standing outside a cocktail lounge that a robbery was in progress inside. Upon pushing the door open, the officer was confronted by a group of people attempting at once to exit the premises. According to the officer, defendant attempted to push past him, mumbling that he “didn’t know what was going on.” However, the proprietor approached defendant from behind and hit him over the head, while telling the officer, “that’s one of them.” Defendant was restrained and arrested. A second perpetrator was detained by the crowd until backup police arrived, while a third man ran away.

The proprietor testified that defendant, whom he had known for “a number of years,” had come into the bar approximately 30-45 minutes prior to the incident asking to borrow ten dollars. The witness responded that he did not have the money at that time, but he told defendant to come back later and if he had taken in some cash he would give it to defendant then. He further testified that two men entered the bar at 7:00 p.m., one armed with a shotgun and the other with a revolver. They ordered the occupants to lie down on the floor, emptied their pockets of cash and collected their jewelry. They took money from the proprietor’s pockets as well as from the cash register.

Defendant, who was wearing a ski mask, remained outside the door acting as a “lookout.” He later entered the premises to alert the other two perpetrators of the arrival of the police. Defendant removed his ski mask and attempted to exit the bar. The proprietor warned the officer in the doorway to stop him because he was one of the perpetrators. The proprietor testified that he had “no doubt whatsoever” that defendant was the individual who had been wearing the ski mask and had alerted the others of the presence of the police. He could not recall whether defendant had been armed.

A second victim witness, who had also known defendant since he was a small child, testified that defendant was one of the three perpetrators, had acted as the “doorman,” and had been armed with a pistol. A third victim witness corroborated the fact that defendant entered the bar when the police arrived to warn the others. Each victim testified to having been robbed at gunpoint of cash and/or jewelry.

Defendant and his two accomplices were jointly named in a 26-count indictment, in which he was charged with six counts of armed robbery (OCGA § 16-8-41 (a)), six counts of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (1)), and one count of possession of a firearm by a convicted felon (OCGA § 16-11-131 (b)). He was also indicted as a recidivist under OCGA § 17-10-7. He was tried separately on four counts each of armed robbery and possession of a firearm during the commission of a crime and was convicted of the armed robberies.

1. The State served a “notice of intent to proffer evidence of similar transactions,” in compliance with USCR 31.3. At the Uniform Rule 31.3 (B) hearing, the State informed the court that it intended to introduce evidence of defendant’s convictions for three prior armed robberies of business establishments by use of a pistol, for the purpose of showing defendant’s intent and bent of mind in entering the premises. Defendant responded that the prior offenses were dissimilar since the evidence in the present case would establish that defendant was not involved in the robbery but was merely present in the bar. He objected to its admissibility on the ground that there was not sufficient similarity between the independent offenses and the crime charged. The State provided certified copies of the prior convictions and offered the testimony of a parole officer in explanation. However, defendant stated that he did not contest his participation in the prior crimes and waived the witness’ testimony. See in this connection Stephens v. State, 261 Ga. 467 (6) (405 SE2d 483) (1991); Williams v. State, 261 Ga. 640 (2) (409 SE2d 649) (1991).

Certified copies of the three convictions were admitted at the conclusion of the State’s case-in-chief, at which time defendant unsuccessfully renewed his objection on the ground previously asserted. The court instructed the jury that the evidence was to be considered only to “illustrate the defendant’s state of mind on the subject involved, if you think it does so illustrate. ...”

The independent crimes were sufficiently similar to the offenses charged so that proof of the former tended to establish intent or bent of mind to commit the crime for which defendant was on trial. See generally Stephens, supra at 469; Chastain v. State, 260 Ga. 789, 790 (400 SE2d 329) (1991).

“[T]he requisite similarity between the . . . incidents depends on the purpose for which the evidence is being presented. ... In this case, . . . the admissibility rests on the question of whether the evidence tends to prove intent. . . .” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). “Generally, when similar transactions are being introduced to prove such issues as bent of mind, motive [or] intent. . ., less similarity need be shown than when identity is sought to be proved thereby.” Daniel v. State, 194 Ga. App. 495, 496 (391 SE2d 128) (1990). The evidence tended to eliminate the possibility that he was not a participant in the crime but merely a patron in the bar. See Aaron v. State, 195 Ga. App. 339 (1) (393 SE2d 698) (1990); Thomas v. State, 239 Ga. 734 (5) (238 SE2d 888) (1977). The court gave appropriate limiting instructions, both when the evidence was introduced and again in its closing charge. As in Maggard, supra at 293, “we find that the similarities are sufficient for the purpose of tending to prove intent. ...”

2. Defendant contends that the State violated the proscriptions of OCGA § 17-8-75 when the prosecutor attempted to restate, for clarification, a question posed by the jury during their deliberations. Assuming without deciding that defendant’s objection was timely, the prosecutor’s remarks did not constitute “statements of prejudicial matters which are not in evidence.” OCGA § 17-8-75. Moreover, the jury’s question and the prosecutor’s attempt to restate it, related only to the charges for which defendant was ultimately acquitted (possession of a firearm). “If the challenged remark is not such as would be likely to prejudice the defendant’s right to a fair trial, such will not constitute reversible error. [Cit.]” Davis v. State, 178 Ga. App. 357, 360 (343 SE2d 140) (1986).

3. Alleging certain inconsistencies in the testimony of the victim witnesses, defendant contends that the trial court erred in denying his motion for a directed verdict of acquittal based on insufficiency of the evidence. “It is the function of the jury to determine the credibility of the witnesses. . . . The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict.” King v. State, 157 Ga. App. 733, 734 (1) (278 SE2d 491) (1981). The evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 17, 1992.

Charles W. Bell, for appellant.

Spencer Lawton, Jr., District Attorney, Elise 0. Gray, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.