text:
    A95A0376.
    REDDING v. THE STATE.
    (458 SE2d 168)
   Birdsong, Presiding Judge.

William Robert Redding appeals his conviction for hunting over a baited field in violation of OCGA § 27-3-9. Although he enumerates two errors, Redding essentially contends the acts he committed did not constitute “hunting,” and that the evidence is insufficient to sustain his conviction. Because the evidence shows Redding was hunting within the meaning of Georgia law, we affirm his conviction. Held:

On appeal the evidence must be viewed in the light most favorable to the verdict, Redding no longer enjoys the presumption of innocence, and we determine the sufficiency of the evidence and neither weigh the evidence nor judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737). Further, we do not speculate which evidence the factfinder chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). Considered in this manner the evidence, particularly the testimony of the conservation ranger, is sufficient to sustain Redding’s conviction, within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Although Redding contends he was not hunting over a baited field because he was hunting about 70 yards from the baited field and was not “pursuing” deer, the ranger testified that he found Redding with a loaded firearm, surrounded by boot tracks matching his boots, standing right in the area of approximately 20 pounds of clearly visible shelled corn that had been spread on the ground. Further, even though Redding chooses to limit his definition of hunting to being in the act of pursuing, shooting, killing, taking, or capturing wildlife, actually performing those acts is not required. Hunting “also includes acts such as placing, setting, drawing, or using any device used to take wildlife, whether any such act results in taking or not.” OCGA § 27-1-2 (39). As Redding’s activities constituted placing, setting, drawing, or using a device to take wildlife, his claim that he was not actually in the act of pursuing, shooting, killing, or taking deer at the time he was apprehended is of no significance. Moreover, the trial court was not obligated to believe Redding’s testimony that he was hunting from a deerstand that was 70 yards from the bait, especially considering the ranger’s testimony that one could readily shoot a deer in the baited area from the deerstand from which Redding claimed to be hunting.

Decided June 5, 1995.

Edward & Youmas, LaTonya C. Nix, for appellant.

Ralph M. Walke, District Attorney, Peter F. Larsen, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A95A0504.
    DRUG LINE, INC. v. SERO-IMMUNO DIAGNOSTICS, INC.
    (458 SE2d 170)
   Birdsong, Presiding Judge.

Drug Line, Inc. (Drug Line) sued Sero-Immuno Diagnostics, Inc. (SID) to enforce an agreement by which Drug Line contends it acquired worldwide exclusive marketing and distribution rights to a new HIV test kit developed by SID. SID contends essentially that the contract is too vague for enforcement, with gaps too great to be filled by the Uniform Commercial Code, and that it lacks mutuality because Drug Line was not required to buy a certain quantity of test kits.

Drug Line contends the contract is valid as an exclusive marketing and distribution agreement under the so-called “gap fillers” provisions of OCGA §§ 11-2-204 (3) and 11-2-309 (3). The trial court granted summary judgment to SID, holding that the contract is not a “requirements” or “output” contract controlled by the UCC but is a distributorship contract controlled by common law principles; that the contract is extremely vague and indefinite and that there is no clear indication of agreement as to the term of contract, geographical limits of the contract or the purchase price for the products. Drug Line appeals. Held:

This contract is too vague, indefinite and uncertain to enforce either under the Georgia Commercial Code at OCGA §§ 11-2-204 (3) and 11-2-309 (3) or under common law principles.

The contract recites that Drug Line desires to obtain the exclusive worldwide rights to purchase, market and distribute the HIV test kits; that “upon receipt of $100,000 . . . [SID] will use the funds to upgrade the facilities in order to provide HIV 1 and HIV 2 test kits in amount necessary to meet future obligations”; that “upon the delivery of orders” by Drug Line for 100,000 kits per year of the Aids Kit at a price of $3,700,000, SID “will continue to grant to [Drug Line] the Exclusive Worldwide Rights for purchasing marketing and distributing the Aids Test Kits”; and that “[SID] and [Drug Line] agree to execute another agreement containing further details within approximately thirty (30) days of execution of this agreement.” (Emphasis supplied.)

Not even the first object of the agreement can be determined. It is unclear who must pay $100,000 and what SID must do to “upgrade the facilities” to provide test kits “in amount necessary to meet future obligations,” and what that amount may be, if anything, is entirely a matter of conjecture. It appears Drug Line seeks to get and keep forever the exclusive worldwide right to purchase, market and distribute the HIV test kits, and it can do this so long as Drug Line merely “delivers orders” for 100,000 kits per year “at a price of $3,700,000.” Nothing requires Drug Line to actually pay SID $3,700,000 at any time; nothing requires SID to produce any number of kits; nothing requires Drug Line to actually take delivery of 100,000 kits; nothing requires Drug Line to market or distribute any kits. There is no requirement that Drug Line order, pay for, market or distribute more than 100,000 kits per year, even if demand were far greater. The only thing reasonably certain about the contract is that it would prevent SID from selling or distributing kits to anybody other than Drug Line, except SID’s present customers, at current prices and quantities.

Most telling, the agreement provides that SID and Drug Line “agree to execute another agreement containing further details within [30] days.” This leaves to complete conjecture and uncertainty what the parties left unsettled, what was finally agreed on, or what might be added or changed.

The so-called “gap filler” provision in OCGA § 11-2-204 (3) states that even though terms are left open, a contract for sale does not fail for indefiniteness “if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” We do not read this provision to obliterate the common law rule that the first requirement of law of a valid contract is that there be a meeting of the minds of the parties and mutuality, and the agreement must be expressed plainly and explicitly enough to show what the parties agree upon; a contract cannot be enforced if its terms are incomplete or incomprehensible. Hughes v. McMichen, 164 Ga. App. 304, 305 (296 SE2d 233), citing Bagwell-Hughes, Inc. v. McConnell, 224 Ga. 659, 661 (164 SE2d 229). An agreement which is entirely subject to conjecture cannot be enforced. Patel v. Gingrey Assoc., 196 Ga. App. 203, 206 (395 SE2d 595). This is true when the contract is construed under Georgia’s Commercial Code or common law, or whether it be a sales or distribution agreement, or a requirements or output contract. The Commercial Code requires a “reasonably certain basis for giving an appropriate remedy” for breach; if it cannot be determined what the parties intended, it cannot be determined what is a breach, or what is an appropriate remedy.

Decided June 5, 1995.

Venema, Thomas & Doherty, Richard R. Thomas, for appellant.

Troutman Sanders, Alan E. Lubel, for appellee.

OCGA § 11-2-309 (3) adds no substance to Drug Line’s arguments.

It seems that, in principle, Drug Line sought to tie up the exclusive world rights to these kits without actually having to buy or distribute a single kit; at the most liberal interpretation, construing the agreement to require Drug Line to buy 100,000 kits from SID at $37 per kit, the agreement requires Drug Line to buy no more than

100.000 kits and prevents SID from manufacturing and selling to anyone else except previous customers. The agreement would in perpetuity restrain SID from manufacturing and selling more than

100.000 kits at any price, and those never for more than $37 per kit, saving only the “current quantities” SID sells to its present customers, at “current prices.” Such an agreement would be unconscionable to say the least. See R. L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 966 (4) (214 SE2d 360).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0555.
    ADAMS v. THE STATE.
    (458 SE2d 171)
   Birdsong, Presiding Judge.

Ronald David Adams appeals his conviction for violating the Georgia Controlled Substances Act by possessing cocaine with the intent to distribute. He contends the evidence is insufficient to sustain his conviction and that he was denied effective assistance of counsel. Held-.

1. When considering whether the evidence is sufficient to sustain the verdict, we view the evidence in the light most favorable to the verdict, the appellant no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency of the evidence and does not weigh the evidence or judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737). Further, we do not speculate which evidence the factfinder chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498).

Considered in this manner, we find the evidence sufficient to sustain Adams’ conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Here, Adams was identified as the occupant of a house from which a confidential informant made a purchase of cocaine, and later, when a search warrant was executed, cocaine was found in the house, and some of what appeared to be cocaine was in many small bags. Considering this evidence, we conclude that the jury rationally could have found beyond a reasonable doubt that Adams was guilty of the offense of which he was convicted. Id.

Decided June 5, 1995.

Sharon L. Melcher, for appellant.

Thomas J. Charron, District Attorney, Charles M. Norman, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. Adams contends that he was denied effective assistance of counsel because his trial defense counsel failed to object to the admission of untested suspected cocaine, failed to move for curative instructions, and failed to move for a mistrial. This issue was properly presented to the trial court, and the trial court found that Adams had received effective assistance of counsel. As this finding is supported by the evidence, we affirm. Middlebrooks v. State, 208 Ga. App. 23, 24 (430 SE2d 163).

This enumeration of error is based upon the proposition that a bag containing numerous small bags of a substance that appeared to be cocaine should not have been introduced in evidence because the substance was not tested to determine what the bags contained. The transcript shows that Adams’ trial defense counsel objected to the admission of this evidence, but his objection was overruled, and his objection was sufficient to preserve the issue for appellate review. Although Adams now contends his trial defense counsel should have based the objection on relevancy, we do not find that such an objection would have been well taken. As an item found pursuant to a search warrant in Adams’ apparent possession, the bag of suspected cocaine was relevant. Under these circumstances, it cannot be said that the trial defense counsel was ineffective for failing to object on this basis. Further, “[i]n the absence of testimony to the contrary, counsel’s actions are presumed strategic. Stanley v. Zant, 697 F2d 955 (11th Cir. 1983), cert. denied, 467 U. S. 1219 (1984).” Earnest v. State, 262 Ga. 494, 496-497 (422 SE2d 188). Therefore, we find that Adams was not denied effective assistance of counsel within the meaning of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674).

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A95A0766.
    LEWIS v. CHATHAM COUNTY SAVANNAH METROPOLITAN PLANNING COMMISSION et al.
    (458 SE2d 173)
   McMurray, Presiding Judge.

This is a workers’ compensation case in which the sole issue is whether claimant Lewis’ injury in a motor vehicle collision arose out of and in the course of her employment or whether she had deviated from her employment at the time of the collision. Claimant had permission to use the employer’s vehicle for the combined purpose of doing personal banking, running an errand for the employer, and performing banking activities for the employer. Prior to completing her employer’s banking, Lewis deviated from the errand route to have lunch in another part of the city, but recognized that she did not have sufficient time and turned back towards the bank where she was expected to conduct her employer’s business before the collision occurred.

The administrative law judge characterized Lewis’ aborted deviation for lunch as a slight deviation and concluded that since she had turned back towards the bank where her employer’s banking activities were expected to occur, that the accident arose out of and in the course of her employment. With changes not relevant to this appeal the Appellate Division adopted the findings of fact and conclusions of law entered by the administrative law judge. On appeal to the superior court, the State Board of Workers’ Compensation’s (“Board”) award was reversed based on the superior court’s conclusion that the deviation was significant, that Lewis had no permission to be where she was at the time of the collision, and that even though Lewis had turned back, she was still deviating from her permitted use of the employer’s vehicle at the time of the collision. Held:

If we view the questions concerning magnitude of deviations from employment as points on a continuum, we recognize several distinct categories have evolved. A “slight deviation” is an act so closely connected with the master’s affairs that even though the employee may derive some benefit from it, it may nevertheless be fairly regarded as arising out of and in the course of employment. Hartford Accident &c. Co. v. Souther, 110 Ga. App. 84 (1) (137 SE2d 705). The next group of cases acknowledges a temporary departure from the master’s business and places great importance on whether the deviation has terminated before the injury for which compensation is sought. Where an employee departs from the employer’s business for a personal reason, but then concludes the personal mission and resumes the employer’s business before an injury occurs, the injury is viewed as arising out of and in the course of employment. Fulton County Civil Court v. Elzey, 101 Ga. App. 520, 523 (114 SE2d 314); Parks v. Maryland Cas. Co., 69 Ga. App. 720, 723 (26 SE2d 562). There is language in the administrative law judge’s award adopted by the Board which suggests each of these preceding categories is the basis of the award. Either category fully supports the award of the Board.

Decided June 5, 1995.

While we have found no cases which define the boundaries of these concepts in either time or space, we are inclined to believe that at some point a departure from the master’s business may become so great that merely concluding the personal errand and turning back will not be viewed as a resumption of the employer’s business. The superior court apparently concluded that this was such a case. This area of the continuum may be associated with cases which hold that injuries received by an employee while on a purely personal mission which bears no purpose of benefit for the employer do not arise out of and in the course of employment.

In any event, since the boundaries of these categories are rather imprecisely defined and the determination of the appropriate group is largely a factual determination, the Board is vested with a broad discretion in identifying which category in which to place the circumstances of a given claimant. In the case sub judice, we find no abuse of this discretion and view the superior court’s judgment as the substitution of its view on a factual issue for that of the Board. This was reversible error.

The cases cited by appellees as authority for sustaining the superior court’s reversal of the Board may be distinguished for either of two reasons. First, there are cases where the injury occurred prior to termination of the employee’s deviation from the employer’s business. These include Dawson Chevrolet Co. v. Ford, 47 Ga. App. 312 (170 SE 306); Atlanta Coca-Cola Bottling Co. v. Brown, 46 Ga. App. 451 (167 SE 776); Selman v. Wallace, 45 Ga. App. 688 (165 SE 851); Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 SE 322). The remaining cases cited by appellees are distinguished because the employee was injured while on a purely personal mission which bore no purpose of benefit for the employer. These include Coffee Chrysler-Plymouth-Dodge v. Nasworthy, 198 Ga. App. 757 (403 SE2d 453); Ocean Accident &c. Corp. v. Farr, 180 Ga. 266, 270-271 (178 SE 728); Grant v. Jones, 168 Ga. App. 690 (310 SE2d 272); Fulton Bag & Cotton Mills v. Eudaly, 95 Ga. App. 644, 646 (98 SE2d 235).

Judgment reversed.

Andrews and Blackburn, JJ., concur.

Jones, Boykin & Associates, Robert K. Hardeman, for appellant.

Howard, Racz & Lawrence, Molly M. Howard, for appellees.


author: Blackburn, Judge.

text:
    A95A0877.
    MOORE v. THE STATE.
    (458 SE2d 479)
   Blackburn, Judge.

The appellant, Harris Linton Moore, appeals his conviction of the offenses of driving under the influence and of violating the terms of a probationary license issued after his driver’s license was revoked for being a habitual violator.

The evidence viewed in the light most favorable to the jury’s verdict shows that at approximately 12:00 a.m. on January 26, 1994, Deputy Sheriff Paula Edens observed Moore sitting in the driver’s seat of a vehicle parked in front of a closed convenience store. The headlights and the engine of the vehicle were on. The officer pulled behind the vehicle, checked the registration on the tag, and reported that the vehicle looked suspicious. Thereafter, the deputy asked Moore to roll down the driver’s side window but Moore was only able to partially lower the window. Once the window was lowered, the officer detected a strong odor associated with alcoholic beverages. The deputy asked Moore to turn off the engine of the vehicle, and as he attempted to do so, he caused the vehicle to lunge backwards.

The deputy assisted Moore in exiting the vehicle, and Moore was extremely unsteady on his feet and he could not balance himself without assistance. Moore’s speech was slurred and his motor skills were impaired. His eyes were bloodshot and glassy and his face was flushed. His clothing was disheveled. Moore became belligerent when asked if he had been drinking and gave the deputy an ID card in response to her request for his driver’s license. Following his arrest, Moore was advised of his implied consent rights from a card formerly used by the sheriffs department. In apprising him of those rights, Corporal McSwain informed Moore that he was entitled to an additional chemical test at his own expense after he submitted to a state administered test. He was not informed that he could choose his own qualified person to administer additional tests. Moore refused to submit to any state-administered test.

1. Initially, Moore maintains that the trial court erred in admitting into evidence his refusal to submit to a state-administered test because he was not properly advised of the implied consent warnings.

Under Georgia law, “where a law enforcement officer requests a person to submit to a chemical test because of acts alleged to have been committed while operating a motor vehicle while under the influence of alcohol or drugs, and the officer arrests that person on this ground, OCGA § 40-6-392 (a) (4) requires that the officer inform him at the time of arrest of his right to an independent chemical analysis to determine the amount of alcohol or drugs present in his blood.” (Punctuation and emphasis omitted.) Vandiver v. State, 207 Ga. App. 836, 837 (1) (429 SE2d 318) (1993). A defendant’s refusal to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest is admissible in evidence against him in any criminal trial. OCGA § 40-6-392 (d). However, a defendant must knowingly, wilfully, and voluntarily refuse to submit to a state-administered test before such refusal is admissible. See State v. Leviner, 213 Ga. App. 99 (3) (443 SE2d 688) (1994). A criminal defendant is not required to submit to a state-administered test if he has not been properly informed of his implied consent rights. Vandiver, supra. Under such circumstances, the refusal is justified, and any evidence of the refusal is inadmissible. Id.

Decided April 27, 1995

Reconsideration denied June 6, 1995

Ruskell & Harris, G. Channing Ruskell, N. Jackson Harris, for appellant.

Garry T. Moss, District Attorney, Margaret E. Daly, Assistant District Attorney, for appellee.

In the present case, Corporal McSwain informed Moore the following: “After submitting to the required testing, you are entitled to additional chemical tests at your own expense.” Although a law enforcement official is not required to give a verbatim recitation of OCGA § 40-6-392, the warning given in this case is deficient because it failed to inform Moore of his right to choose his own qualified person to administer the additional test. State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994). A motorist cannot be deprived of an opportunity to make an informed choice under the implied consent statute. Leviner, supra. Consequently, Moore’s choice was uninformed and any evidence of his refusal was inadmissible at trial. Vandiver, supra. Therefore, Moore is entitled to a new trial without that evidence. Id.

2. Based upon our decision in Division 1 above, we need not address Moore’s remaining enumerations of error.

Judgment reversed.

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


text:
    A95A1060.
    A95A1061.
    A95A1062.
    ARMSTRONG TRANSFER & STORAGE COMPANY, INC. et al. v. MANN CONSTRUCTION, INC. et al. FIREMAN’S FUND INSURANCE COMPANY v. ARMSTRONG TRANSFER & STORAGE COMPANY, INC. et al. MANN CONSTRUCTION, INC. v. ARMSTRONG TRANSFER & STORAGE COMPANY, INC. et al.
    (458 SE2d 481)
   Blackburn, Judge.

These three appeals are from the judgment entered on the jury’s verdict and the trial court’s denial of motions for new trial and an alternative motion for judgment n.o.v. filed by the respective parties.

Armstrong Transfer & Storage Company, Inc. (Armstrong) operates a moving and storage business and Property Leasing IV, Inc. (PLI) is a holding company for the real property owned by Armstrong. On May 10, 1989, Armstrong executed an agreement to purchase from Sam Leveto and Clay Futch certain real property located in a Gwinnett County business park. PLI subsequently purchased the property on July 28, 1989. One year later, PLI entered into a contract with Mann Construction, Inc. (Mann) for the construction of an office/warehouse facility on the property. Pursuant to the requirements of the construction contract, Mann procured a performance bond with Fireman’s Fund Insurance Company as the surety.

In late August or early September 1990, during the initial development of the property, a grading subcontractor discovered debris and trash buried within the intended building areas on the property. Discussions ensued between Leveto and Tim Wilson, the commercial real estate agent involved in the sale of the property, regarding the removal of the debris, and a proposal was made for Leveto and Futch to pay $10,000 to remove the waste. It is undisputed that any offer to pay for the removal of the waste was subject to the approval of Futch. A letter memorializing the contents of the oral agreement was forwarded to Leveto for his signature. There is no evidence that Leveto signed the document. Leveto later tendered two checks totaling over $14,000 and a release in final settlement of the matter, and the tender was unequivocally rejected by Armstrong and PLI through counsel.

The organic debris located within the intended building area of the property was subsequently removed by an excavating company and the office warehouse facility was completed in the spring of 1991. However, by September 1991, cracks appeared in the floor slab of the building and substantial movement of the walls had occurred on the rear side of the facility as a result of movements in the adjacent sloped ground. The evidence was in dispute as to the cause of movement. The roof of the facility began leaking. Mann unsuccessfully attempted to eliminate the leakage. Fireman’s Fund denied PLI’s repeated demands to correct the alleged structural defects.

Armstrong and PLI commenced the instant action based upon negligence, breach of contract, and fraud against Leveto, Futch, and their development company, Lifestyle Communities, Inc. (Lifestyle), and against Wayne Rafiield, Mann, and Fireman’s Fund for fraud, negligence, and breach of warranty. Following a two-week jury trial, the jury returned a verdict in favor of PLI and against Mann and Fireman’s Fund in the amount of $180,000 for breach of contract related to the construction of the roof, and in favor of Mann and Fireman’s Fund and against PLI for breach of contract related to the structural damage to the facility. Mann was awarded $42,510 on its counterclaim against PLI for Mann’s construction of a parking lot at the office/warehouse. Both Mann’s and PLI’s motions for pre-judgment interest were denied by the trial court, and judgment was entered on the jury’s verdict. Armstrong, PLI, and Mann filed motions for new trial, and Mann additionally filed a motion for judgment n.o.v. The trial court denied both motions for new trial and Mann’s motion for judgment n.o.v., and these three appeals followed.

In Case No. A95A1060, Armstrong and PLI appeal the trial court’s denial of their motion for new trial and the judgment entered on the jury’s verdict. In Case No. A95A1061, Fireman’s Fund appeals the judgment entered against it in favor of PLI for damages based upon the breach of the construction contract. In Case No. A95A1062, Mann appeals the denial of its motions for new trial and for judgment n.o.v.

Case No. A95A1060

1. Armstrong and PLI contend that a new trial is warranted because there was an issue of fact for jury resolution as to whether Lifestyle, Leveto, and Futch engaged in active/passive concealment of the buried debris. Specifically, Armstrong and PLI argue that Lifestyle, Leveto, and Futch deliberately permitted the burial of the debris on the property and failed to disclose the existence and location of the organic material. “However, the cases creating and interpreting th[e] [passive concealment] doctrine have been clear to limit it to controversies between residential homeowners and residential builder/sellers as an exception to the doctrine of caveat emptor.” (Punctuation omitted.) Condon v. Kunse, 208 Ga. App. 856, 858 (2) (432 SE2d 266) (1993). See also Toys R’ Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195 (1) (393 SE2d 44) (1990). Consequently, this doctrine is inapplicable in the present case which involves the sale of commercial property. See id. As in Condon, supra, we decline to extend this doctrine to the sale of commercial realty, especially in this case where Armstrong and PLI had an affirmative contractual duty to inspect the property prior to the sale.

A directed verdict was also warranted on Armstrong and PLI’s claim for fraud based upon active concealment. “In a fraudulent concealment action the allegedly defrauded party must prove that the alleged defrauder had actual, not merely constructive, knowledge of the fact concealed. There must be some evidence of the silent party’s actual knowledge that the defect exists at the time of the sale from which his moral guilt in concealing it can be inferred.” (Citations and punctuation omitted.) Webb v. Rushing, 194 Ga. App. 732, 733 (1) (391 SE2d 709) (1990). The record is devoid of any evidence that Leveto or Futch actually knew that the debris was buried in the intended building areas of the property. Leveto specifically denied knowledge of the buried debris and Futch was not called by Armstrong and PLI as a witness at trial.

2. Next, Armstrong and PLI maintain that the trial court erred in directing a verdict in favor of Leveto, Futch, and Lifestyle, because there was some evidence that Leveto breached an oral promise to pay the cost to remove the debris.

“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, . . . and a subject matter upon which the contract can operate. . . . Until each [party] has assented to all the terms, there is no binding contract. ... As price is an essential element of a valid contract, an alleged contract on which there is no firm agreement as to the price is unenforceable.” (Citations and punctuation omitted.) BellSouth Advertising &c. Corp. v. McCollum, 209 Ga. App. 441, 444 (2) (433 SE2d 437) (1993).

In the present case, Stoops, president of Armstrong and PLI, specifically denied having a contract with Leveto to remove the buried debris. Moreover, there was no mutual assent to the essential terms of any oral contract including the cost of the removal of the debris. See Valiant Steel &c. v. Roadway Express, 205 Ga. App. 237 (421 SE2d 773) (1992).

3. Armstrong and PLI further argue that a new trial was warranted because the jury’s verdict is contrary to, and strongly against the weight of the evidence adduced at trial on their claim for damage to the south wall of the office/warehouse facility. Specifically, they maintain that Mann had a contractual obligation to insure that the surrounding soils supported the construction of the office/warehouse building and met minimum load-bearing requirements for improvements.

There was evidence produced at trial that showed that the soil underneath the building was properly compacted. A geotechnical engineer testified that the testing performed on the soil underneath the warehouse and the adjacent area surrounding the building showed that the soil met or exceeded the 95 percent standard proctor maximum density as provided in the contract. The compaction density is an indirect measure for achieving the proper load-bearing capacity. Expert testimony demonstrated that the rear slope of the property collapsed because the slope was too steep for the strength of the soil and not as a result of the density of the soil underneath the building. Since there was some evidence to show that Mann did not breach its contractual obligation as alleged, a new trial was not warranted.

In addition, Armstrong and PLI were not entitled to a directed verdict on their breach of contract claim based upon a contractual provision governing the contractor’s duty to disclose errors or omissions contained in the contract documents. The contract provision at issue, Paragraph 3.2.1, is limited to errors in the contract documents and does not encompass any alleged failure of Raffield to disclose to the project inspector the existence of a burial pit. Nor does the alleged conduct fall within the terms of Paragraph 3.2.2.

4. Contrary to their assertions, the trial court was proper in directing a verdict against Armstrong and PLI on the issue of assessed attorney fees and expenses of litigation. As the trial court correctly found, a bona fide controversy existed between the parties which is demonstrated by the jury’s verdict. Under such circumstances, an award of attorney fees based under OCGA § 13-6-11 is precluded as a matter of law. Read v. Benedict, 200 Ga. App. 4 (1) (406 SE2d 488)

(1991) .

5. Armstrong and PLI also enumerate as error the trial court’s failure to instruct the jury as requested and the trial court’s giving of certain charges over objection. Specifically, Armstrong and PLI maintain that the trial court erred in failing to give their requested Charge Nos. 8, 9, 10, 14, 17, 18 and 19.

“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” (Punctuation omitted.) Lee v. Bartusek, 205 Ga. App. 551 (1) (422 SE2d 570)

(1992) . We have examined each of the requested instructions and conclude that there was no error in omitting them because each is either an incomplete or incorrect statement of the law, not adjusted to the evidence or pleadings, otherwise covered in another charge, or not warranted based upon the trial court’s grant of motions for directed verdict or Armstrong and PLI’s voluntary dismissal of their negligence claim. See id.

Armstrong and PLI further challenge the trial court’s instruction to the jury based upon the defendants’ charges on the issue of agency as requested in Charge Nos. 65, 66, 67, and 68. There was evidence produced at trial that Raffield was Mann’s special agent on this construction project. As this court held in Johnson v. Loggins, 211 Ga. App. 265, 266 (3) (438 SE2d 711) (1993), “[w]hen there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue.” (Punctuation omitted.)

Case No. A95A1061

6. In this cross-appeal, Fireman’s Fund maintains that the trial court erred in directing a verdict against it on its affirmative defenses of fraud and discharge. Specifically, Fireman’s Fund contends that the initial draft of the construction contract upon which the company relied in making its decision to issue a performance bond was materially different from the final contractual agreement signed by the parties, and listed Raffield as a joint contractor. Based upon this material change which allegedly increased its risk, Fireman’s Fund contends that it was entitled to a discharge of its obligation under the bond. Although Fireman’s Fund did not file a motion for new trial prior to the filing of the instant appeal, contrary to Armstrong and PLI’s assertions, the company did not waive its right to challenge the verdict on appellate review. As a party against whom the trial court directed a verdict, Fireman’s Fund had the option of challenging the decision by direct appeal or by motion for new trial. Demer v. Capital City Cable, 190 Ga. App. 40 (1) (378 SE2d 162) (1989).

Under common law, a surety can be discharged from its obligation under a bond if its risk is increased by any act of the insured. See West Cash &c. of Savannah v. Liberty Mtg. Corp., 160 Ga. App. 323 (287 SE2d 320) (1981). Notwithstanding the language contained in the “amended” contract which lists Raffield as a joint general contractor, the evidence produced at trial shows that Raffield was merely an agent of Mann. John Mann testified that Raffield was merely a job superintendent, and an agent responsible for day-to-day decision making authority, and specifically denied that a joint venture had been formed with Raffield. In addition, Mann executed a letter on August 29, 1990, specifically granting Raffield the authority to sign change orders, to make day-to-day decisions, and to execute subcontract agreements. Such documentation would have been unnecessary and merely an expression of his existing authority if the project was in fact a joint venture. Accordingly, there is no evidence of a change in the actual relationship of the parties to authorize a discharge of Fireman’s Fund’s obligation under the payment bond.

Additionally, there were no material misrepresentations made in the initial contract submitted to Fireman’s Fund’s agent and its underwriter, and consequently, an essential element of its fraud defense is lacking. See Paul v. Joseph, 212 Ga. App. 122 (2) (441 SE2d 762) (1994). Moreover, Fireman’s Fund cannot reasonably rely upon an unsigned document as true representation of the contractual relationship of the parties. Cf. Walker v. Williams, 177 Ga. App. 830, 831 (341 SE2d 487) (1986). Therefore, the trial court did not err in directing a verdict against Fireman’s Fund on its affirmative defenses.

Case No. A95A1062

7. In three separate enumerations of error, Mann maintains that the trial court erred in denying its motion for new trial or in the alternative, judgment n.o.v., because the verdict is unsupported by evidence on the proper measure of damages. We disagree.

“The true measure of damages under the facts in this case is the difference between the value of the work as actually done and the value which it would have had if it had been done properly in pursuance of the contract. . . . This difference in value may be shown [or] illustrated by evidence of the reasonable cost of correcting the defect.” (Citations and punctuation omitted.) Kuhlke Constr. Co. v. Mobley, 159 Ga. App. 777, 780 (2) (285 SE2d 236) (1981).

During his testimony, one of Armstrong and PLI’s expert witnesses testified that the roof was not properly installed and the roof as constructed was far below the accepted standard of workmanship within the industry. According to this expert, the excessive amount of caulking on top of the roof panels indicated that the roof was not properly installed inasmuch as the metal panels on a properly constructed roof are designed to fit together. He further opined that it was highly unusual for a roof of this age to leak unless it had not been properly installed, and the damaged panels used in installing the roof contributed to the leakage. Mann presented no evidence to rebut this testimony. This unrebutted evidence provided the trier of fact evidence from which it was authorized to find that the defect in the roof was attributable to Mann’s failure to use good quality building materials and failure to provide good quality workmanship. See McDevitt &c. Co. v. K-C Air Conditioning Svc., 203 Ga. App. 640 (2) (418 SE2d 87) (1992).

The expert provided three alternatives for the repair of the roof, one of the alternatives ranged in cost from $130,000 to $140,000. Another expert secured by Armstrong and PLI recommended the installation of a retro-fitted roof over the existing roof at a cost of approximately $180,000, and recommended the removal of the existing roof at an additional cost of $40,000. This evidence was sufficient data to permit a reasonable determination of allowable damages as a result of Mann’s breach of the construction contract. See Garner v. Blair, 214 Ga. App. 357 (2) (448 SE2d 24) (1994).

8. We reject Mann’s challenge to the trial court’s giving of PLI’s Request to Charge No. 12. Based upon this request, the trial court properly instructed the jury that the measure of damages for breach of a construction contract is the difference between the value of the work as done and the value the building would have had if it had been constructed properly pursuant to the contract which, as discussed above, may be shown by evidence of the reasonable cost of correcting the defect. Mobley, Inc., supra. The trial court also properly recharged the jury on this issue. The charge and recharge as given were correct statements of the law and were warranted based upon the evidence adduced at trial. See id. Although Mann’s counsel failed to object to this charge during the charge conference, “failure to make an objection at a charge conference [does] not preclude a party from making an objection at the appropriate time, after the charge is given.” Brown v. Sims, 174 Ga. App. 243, 244 (2) (329 SE2d 523) (1985).

Decided May 4, 1995

Reconsideration denied June 6, 1995

James W. McKenzie, Jr., for Armstrong.

Webb, Carlock, Copeland, Semler & Stair, D. Gary Lovell, Jr., Porter & Barrett, Sidney R. Barrett, Jr., Long, Weinberg, Ansley & Wheeler, K. Marc Barre, Jr., Paul L. Weisbecker, for Fireman’s Fund and Mann Construction Co.

Judgment affirmed.

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

       The trial court granted Wayne Raffield’s motion for directed vercict.


text:
    A95A1283.
    WILSON v. THE STATE.
    (458 SE2d 486)
   Blackburn, Judge.

The appellant, Kernie Gene Wilson, appeals from the trial court’s denial of his plea of former jeopardy.

Wilson was indicted for the offenses of public indecency and use of fighting words, and a two-day jury trial on these offenses commenced on November 16, 1994. During trial, the victim testified that she was standing on her back porch when Wilson, a neighbor, started grunting, yelling, and shouting obscenities at her from his porch. He then unfastened his pants, exposed his penis, and yelled to the victim that she should “eat this,” referring to his genitalia.

Wilson denied yelling at the victim, and in support of his defense, he presented the testimony of several character witnesses who all testified that they had never heard Wilson shout profanities at anyone or otherwise make a disturbance. After the close of the case for the defense and before the presentation of rebuttal witnesses for the State, the trial court received a note from a juror concerning a possible conflict based upon his acquaintance with a defense witness. The trial court questioned the juror on the nature of his relationship with the witness, and the juror responded that he knew the defense witness very well, respected the witness, and would believe the witness’s testimony over the testimony of any other witness under oath. He further stated that “my feelings tell me he wouldn’t lie.” The prosecution moved for a mistrial due to juror bias, and over the objection of defense counsel, the motion was granted.

The double jeopardy provisions of our state and federal constitutions recognize the right of the accused to have his trial proceed to an acquittal or a conviction before that tribunal once a jury has been sworn and impaneled. Jones v. State, 232 Ga. 324 (206 SE2d 481) (1974). “Once the jury has been impaneled and sworn, jeopardy attaches. However, where a mistrial is thereafter declared over the objection of a criminal defendant, a retrial is not barred where there is [a] manifest necessity for the declaration of a mistrial or the ends of public justice would be defeated by allowing the trial to continue. The trial court has as much authority to grant a mistrial where injustice is caused to the state as where injustice is caused to the defendant.” (Citations and punctuation omitted.) Moss v. State, 200 Ga. App. 253, 254 (407 SE2d 477) (1991).

“A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb such ruling in the absence of a manifest abuse of that discretion which threatens the defendant’s right to a fair trial. This is especially true when the grounds for the mistrial relate to jury prejudice, for the trial judge is in a peculiarly good position to observe the jurors, the witnesses and the attorneys in order to evaluate the extent of the prejudice.” (Citations and punctuation omitted.) Id.

In this case, the motion for mistrial was predicated upon juror bias. The juror’s response to the questions posed by the court clearly indicated his partiality, and “[i]t is settled that the duty of the judge in this event is to discharge the jury and direct a retrial.” (Punctuation omitted.) McCrary v. State, 191 Ga. App. 336, 337 (381 SE2d 579) (1989). Wilson argues that the trial court abused its discretion in failing to examine other less drastic alternatives prior to its declaration of a mistrial. However, in Jones, supra, the Supreme Court recognized that a trial court’s failure to examine alternatives short of mistrial is more likely to bar retrial in. cases involving prosecutorial abuse than in the present case, where it is belatedly discovered that a member of the jury panel may be unable to perform his or her duty to impartially consider the case. “[A] possibility of juror bias, particularly where, as here, the juror has spent some time in the company of other members of the panel ... is sufficiently detrimental to the impartiality of the fact-finding process to warrant the declaration of a mistrial rather than [any] less extensive remedies].” Id. at 333. In addition, defense counsel did not suggest any alternatives short of mistrial. Consequently, the trial court’s failure to examine other alternatives is of no consequence.

Decided May 11, 1995

Reconsideration denied June 6, 1995

Glyndon C. Pruitt, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Susan C. Devane, Assistant Solicitors, for appellee.

Under these circumstances, there was a manifest necessity to declare a mistrial, and hence, we find no manifest abuse of discretion. See Abdi v. State, 249 Ga. 827 (294 SE2d 506) (1982). Consequently, the trial court did not err in denying Wilson’s former jeopardy plea.

Judgment affirmed.

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


text:
    A95A0714.
    HOLLAND v. FARMER.
    (458 SE2d 175)
   Birdsong, Presiding Judge.

Naomi C. Holland appeals the trial court’s denial of her petition pursuant to OCGA § 53-3-23 to recover attorney fees and expenses from the estate of James Monroe Hamby. Holland offered for probate a will of Mr. Hamby dated April 23, 1988, in which she was named executrix; this will was drafted by Holland’s husband and benefited a charitable trust which Holland and her husband had established. A caveat was filed to those probate proceedings by Robert L. Farmer, who offered a will of Mr. Hamby dated May 31, 1990. This will benefited Farmer and his son. Appellant Holland challenged that later will on the grounds of lack of testamentary capacity of Mr. Hamby and undue influence by Robert L. Farmer. After discovery and a lengthy trial resulting in a lengthy transcript, a jury returned a verdict in favor of the later will propounded by Farmer. The trial court denied Holland’s attorney fee petition on grounds that Holland’s efforts in propounding the 1988 will were “efforts to defeat a later dated last will and testament” (emphasis supplied), whereas OCGA § 53-3-23 allows recovery of attorney fees and expenses for an attorney employed to offer a will for probate. On motion for reconsideration, Holland contended that OCGA § 53-3-4 required her to qualify as executrix under the will known to her and in effect required her to challenge the later will.

The trial court in a second order elaborated that as early as three days after she offered the 1988 will for probate, Holland knew of a later will and that she could not qualify as executrix unless that later will was found invalid, and that “such personal interest in the probate of the 1988 will, with full knowledge of the 1990 will, precludes a finding that the petitioner was proceeding in good faith as required by OCGA § 53-3-23.” Held:

1. The motion to dismiss this appeal is denied.

2. We cannot agree with the trial court’s reasoning, but we will uphold his finding of fact on the issue of good faith because there is evidence to support it.

OCGA § 53-3-23 provides that those named as executors in purported wills of decedents shall be entitled to recover expenses from the estate including reasonable attorney fees “even if the will is subsequently determined not to be the valid will of the testator [,]” if he “proceeds in good faith.” The mere fact that a propounder of an earlier will attempts to “defeat” a later will does not prove the propounder did not act in good faith, and lack of good faith is not conclusively proved by the fact that the propounder of an earlier will has a “personal interest” in it. As evidenced by the facts in Sauls v. Avant, 143 Ga. App. 469 (238 SE2d 564) — which notes the paucity of authority on this issue — there may be legitimate circumstances leading the propounder of an earlier will to believe, within the bounds of reason, that the later will was induced by undue influence, fraud, or mental incapacity of the testator. To rule that in every case a propounder of an earlier will undertakes to caveat a later will at her own risk would render OCGA § 53-3-23 without meaning. Any person who propounds a will under OCGA § 53-3-23 may necessarily be attempting to “defeat” another will which he or she believes to be invalid, and it may also be the case that the propounder has a “personal interest” in it. To hold that such circumstances amount to bad faith as a matter of law would prevent the fair determination of validity of competing wills.

There is evidence in this case, however, supporting the trial court’s implicit conclusion that appellant Holland did not “[proceed] in good faith.” This includes evidence that although she maintained that a certain handwriting expert opined that a signature on a deed was not Mr. Hamby’s signature, that handwriting expert testified at trial that he had not formed or given such an opinion. Further, Mrs. Holland contended Mr. Hamby was incompetent when he made the later will, but she had seen him only once in many months before he died, when she went to his home to convince him to give power of attorney to her friend, whereas many disinterested witnesses who had known Mr. Hamby for years and who were in close daily contact with him when he died testified that when he made the later will he was in very good mental capacity. There was other evidence to support the finding that the propounder is not entitled to attorney fees and expenses out of the estate.

Decided June 6, 1995.

Awtrey & Parker, M. David Harrison, for appellant.

Peter M. Blackford, John E. Gilchrist, for appellee.

The question of good faith will turn on the circumstances of each case. OCGA § 53-3-23 does not limit the discretion given the trial court to determine good faith of the propounder. “Traditionally, where a trial court is vested by statute with broad discretion, appellate courts do not disturb that exercise of discretion unless it is clearly, patently, and manifestly abused.” Resolution Trust Corp. v. Morrow Auto Center, 216 Ga. App. 226, 229 (454 SE2d 138). To set restrictions or standards on the trial court’s discretion in this determination would place additional burdens of proof on the propounder of the will found to be valid, and would thus encourage unreasonable promotion of wills with the only detriment being the impoverishment of the estate to pay the fees. The discretion in the trial court to determine the good faith of the propounder of the will is broad, and it was well exercised in this case.

. Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0098.
    EVANS v. THE STATE.
    (458 SE2d 357)
   Blackburn, Judge.

Following the denial of her plea in bar based upon two prior indictments having been quashed by the trial court, the appellant, Myrtis S. Evans, was convicted upon trial by jury of eight counts of theft by taking. Evans appeals from her conviction.

The record reveals that the Chattooga County Grand Jury in the August Term of 1994 returned three “true bill” indictments against Evans, each charging her with the offense of which she was convicted when tried pursuant to the third indictment. On arraignment day, August 12, 1994, the trial court, sua sponte, informed all involved defendants and attorneys that a city councilman had served on the grand jury in violation of OCGA § 15-12-60 (b) (1). As a result, the trial court issued an order calling the grand jury back into session. Evans, by counsel, filed a plea in abatement the next day.

On August 15, 1994, the grand jury returned the second indictment against Evans. However, as the grand jurors prepared to depart, the foreman of the grand jury asked to approach the bench. The foreman explained that he had held elective office in the preceding two years as a Democratic Committeeman. The trial court, again sua sponte, excused the foreman based upon an alleged violation of OCGA § 15-12-60 (b) (1), and directed the grand jury to reconvene that afternoon. After doing so and electing a new foreman, the grand jury returned the third indictment against Evans.

At calendar call on August 18, 1994, the trial court orally granted Evans’ oral motion to quash the first and second indictments. The district attorney concurred therein. “MR. COOK: We move to quash the two previous indictments that were returned by improperly constituted Grand Juries, that the Court can take judicial knowledge and cognizance of. We move to quash the two prior indictments. THE COURT: Would that not be done by operation of law? MR. VAN PELT: I don’t know, Judge, I think it would be by operation of law. THE COURT: But in any event, the Court would not allow two or three indictments against the same defendant for the same thing. MR. COOK: They are improper indictments, the Court can rule they are improper. Can I take an oral order quashing the two prior indictments? MR. VAN PELT: I don’t have any problem with that, Judge. THE COURT: Order is so entered. I know of no reason why the same motion would not apply to all of the other cases. MR. COOK: As a friend of the Court, speaking in Amicus Curiae, I so move. MR. VAN PELT: Yes sir, we intended to eventually nol pros or quash all of those, the first two sets. THE COURT: Motion granted as to all of them. That way there will be no question about it. MR. COOK: That’s right. THE COURT: Those prior indictments are now void, with no force and effect whatsoever. MR. VAN PELT: Yes sir. THE COURT: All prior indictments because the Grand Jury had a public official on it, unless it has been waived, those indictments are quashed.” At the call of the calendar on August 22, 1994, the court stated: “Myrtis Evans was, indeed, one of these defendants that the Court was ruling on[,] Mr. Van Pelt.” Van Pelt responded: “That’s fine, Judge. Mrs. Evans did, in fact, challenge the first indictment. ...”

In a motions hearing on August 22, 1994, the trial court refused to memorialize, in writing, its oral ruling quashing the first and second indictments, stating: “But I stand on what I did, if I’ve made a mistake, a legal mistake, then I’ll abide by it. . . .” The trial court denied Evans’ plea in bar, which was based upon a violation of OCGA § 17-7-53.1 where the first and second indictments had been quashed by the Court.

In Evans’ sole enumeration of error, she asserts that the trial court erred by denying her plea in bar. OCGA § 17-7-53.1 provides “[i]f, upon the return of two ‘true bills’ of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by [a] ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court’s own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge or allegation.” (Emphasis supplied.) OCGA § 17-7-53.1 operates as a statutory bar to a prosecution on a third indictment for the same offense, where, as here, the trial court has quashed two prior indictments thereon. See Smith v. State, 198 Ga. App. 647, 648 (402 SE2d 738) (1991).

Appellee, the State of Georgia, contends that the plea in bar should be denied for Evans’ failure to timely challenge the first indictment and her failure to file a written challenge to the second indictment. Further, citing Ingram v. State, 253 Ga. 622, 624-625 (323 SE2d 801) (1984), the State contends that OCGA § 15-12-60 (b) (1) did not require the trial court’s excusal of the foreman of the grand jury which returned the second indictment — this because he neither held elective nor public office.

Pretermitting these issues, however, the trial court entered a ruling on the record which quashed the first and second indictments against Evans, terminating all proceedings on each indictment. See Echols v. State, 187 Ga. App. 870, 872 (371 SE2d 682) (1988). Having thus quashed two indictments on the same offense, the statutory bar to further indictment on the same offense arose pursuant to OCGA § 17-7-53.1. See Smith, supra at 648. See also Davis v. State, 213 Ga. App. 212, 213-214 (444 SE2d 142) (1994) (“When construing a statute this court must look to the plain meaning of words and if there is only one reasonable construction, the statute must be construed in that manner. [Cit.]”). Trial courts generally have the authority to timely amend or set aside their oral ruling. See Cotton States Mut. Ins. Co. v. Neese, 173 Ga. App. 62, 64 (325 SE2d 431) (1984). The trial court’s refusal to reduce his order to writing does not change the outcome as it elected to let its oral ruling stand at the time it refused to reduce it to writing. Under these circumstances, the State cannot now argue that the trial court’s ruling on the motion to quash was ineffective for the trial court’s failure to memorialize it in writing. This is particularly so when, as here, the State concurred in the action complained of at trial. “[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.” Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536) (1986).

Decided April 19, 1995

Reconsideration denied June 7, 1995

Gammon & Anderson, Wayne W: Gammon, Carlton H. Vines, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

Judgment reversed.

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

       In denying the motion, the trial court stated “I don’t think this is the first time I’ve found myself in a catch twenty-two, I hope it’s the last time, but I doubt that it will be. But in any event, this Court is not going to sign anything to further propel the arguments about quashing the first two indictments. I’m not going to sign any order, not unless the Supreme Court or the Court of Appeals orders me to do so. If I’m ordered to do so by one or the other, then I would. Anything short of an order from the appellate courts I refuse to sign anything.” (Emphasis supplied.)


text:
    A95A0741.
    ROBERTS v. MALU CONSTRUCTION, INC.
    (458 SE2d 146)
   McMurray, Presiding Judge.

Plaintiff Joyce Roberts brought this action against defendant MALU Construction, Inc. (“MALU”) seeking to rescind her contract to purchase real property from MALU “due to [a] latent defect in the lot, [namely] the existence of a drainage easement that did not appear upon the subdivision plat.” A separate count sought money damages due to the alleged fraud of MALU for its “intentional concealment and misrepresentations. . . .” MALU denied the material allegations but admitted to the following material facts: In May 1990, plaintiff (and her then-husband) agreed to purchase from MALU Lot 17 as shown by plat of record in a residential subdivision MALU was developing. However, pursuant to a mutual agreement, on November 4, 1991, plaintiff reconveyed Lot 17 to MALU, and MALU executed a cancellation of the security deed thereon. At the same time, MALU executed a warranty deed to plaintiff for Lot 11 in the same subdivision, and plaintiff executed a warranty deed to secure debt in the principal amount of $5,504.57, i.e., the balance due pursuant to the original purchase agreement for Lot 17. MALU represented to plaintiff that “Lot 11, like Lot 17, was suitable for the construction of a single family dwelling,” and that the lots conveyed were “lots upon which the authorities of Whitfield County[, Georgia,] would permit the construction of single family dwellings.” The lots are not served by any governmental sewer service, and each lot requires the installation of a septic system for each residential dwelling. On August 25, 1992, MALU cancelled the security deed on Lot 11 because the amount secured had been paid in full. Meanwhile, plaintiff began negotiations with Southland Homes Corporation to construct a residence on Lot 11. In November 1992, plaintiff secured a construction loan and also obtained a construction permit and site approval for an on-site sewage management system (septic tank) on Lot 11. In January 1993, Southland Homes began clearing and grading Lot 11. The grading contractor soon discovered that the bulldozer was uncovering areas of wet soil. Although MALU denied that its president, Michael L. Cline, advised plaintiff that she should not notify the Whitfield County Department of Health, it admitted that plaintiff “was advised by the Whitfield County Health Department that the authority to install a septic tank on Lot 11 was revoked due to the discovery of a drainage easement directing water through the middle of the lot.” MALU also admitted that the “ ‘drainage pipe’ directing water onto Lot 11 . . . ‘[does not appear] of record on [the subdivision plat or] any document available to plaintiff.’ ” When plaintiff informed MALU that she thought “her lot was unsuitable for building a residence thereon [ . . . MALU] proposed to replace lot 11 with one of two lots remaining in [the] subdivision.” Neither remaining lot appealed to plaintiff, and she announced her intention to rescind.

The case was tried before a jury. At the close of the evidence, the trial court directed a verdict against plaintiff on the issue of defendant’s alleged breach of warranty of title. Thereafter, the jury considered special verdicts for rescission and fraud and found for defendant. Plaintiff’s motion for new trial was denied. From the judgment entered on the verdicts as found by the jury and directed by the trial court, this appeal followed. Held:

1. Plaintiff first contends the trial court erred in denying her pretrial motion for summary judgment, arguing that the “facts admitted in the pleadings alone were sufficient to authorize a rescission by the plaintiff.” However, once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue. White v. Lance H. Herndon, Inc., 203 Ga. App. 580 (1) (417 SE2d 383). See also R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 581 (1) (a) (451 SE2d 812) (physical precedent). This enumeration presents nothing for appellate review. OCGA § 5-6-48 (b) (3).

2. In the warranty deed given to plaintiff by MALU as grantor, MALU promised to “WARRANT and DEFEND all right, title and interest in and to the said premises and the quiet and peaceable possession thereof, . . . against all acts and deeds of the said Grantor, and all and every person or persons whomsoever lawfully claiming or to claim the same.” In her second enumeration, plaintiff contends the trial court erred in directing a verdict as to the issue of whether there was a violation of the warranty deed. In this regard, plaintiff argues that the jury should have been allowed to determine whether defendant’s “installation of the drainage pipe and direction of surface waters across plaintiff’s land . . . [constituted] a violation of defendant’s duties as grantor not to interfere with plaintiff’s peaceful use and possession of her land.”

Decided May 19, 1995

Reconsideration denied June 7, 1995

David T. Blackburn, for appellant.

Kinney, Kemp, Pickell, Sponcler & Joiner, Mathew D. Thames, for appellee.

“A general warranty of title against the claims of all persons includes covenants of a right to sell, of quiet enjoyment, and of freedom from encumbrances.” OCGA § 44-5-62. “On a covenant for quiet possession, loss of possession [has] to be shown.” Cheatham v. Palmer, 176 Ga. 227, 235 (167 SE 522). In the case sub judice, there is no evidence of an eviction, actual or constructive, to support this theory of recovery. Moreover, “[t]he record reveals no evidence, direct or indirect, that [plaintiff] ever discharged an alleged encumbrance or acquired an outstanding paramount title that was about to be enforced against [her as would support a claim for breach of the covenant against encumbrances].” Hitchcock v. Tollison, 213 Ga. App. 477, 478 (2), 480 (444 SE2d 844). Consequently, in the case sub judice, the trial court correctly granted MALU’s motion for directed verdict on that claim for breach of covenant under the general warranty deed executed by MALU as grantor. OCGA § 9-11-50 (a).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0026.
    OBOH v. THE STATE.
    (458 SE2d 177)
   McMurray, Presiding Judge.

Defendant was charged with the offense of theft by receiving a stolen rental car. Defendant filed a motion to suppress, contending he was illegally stopped and searched by a law enforcement officer before his arrest. The evidence adduced at a hearing on this motion to suppress reveals the following: .

At about 9:12 in the morning on February 19, 1993, Deputy Joseph Lee Garland of the Douglas County Sheriff’s Department was parked across the street from Southern Federal Bank in Lithia Springs, Georgia, when he observed a black male drive a “white panel van [with a] rental sticker from a rental company, bumper stickers . . .” into the bank’s parking lot. A rash of recent bank robberies in the area had raised Deputy Garland’s suspicions so he pulled his patrol car into the bank’s parking lot and waved to the tellers in the drive-in windows. The deputy just wanted to “let them know [he was] there.”

As Deputy Garland drove around the bank building, he “noticed through the office window that is on the side of the bank — there’s like a glass pane window — you can see the front door[,] a couple of tellers run up to the door as this guy was getting in the van to leave. [Deputy Garland] drove on around the bank and come (sic) around the other side of the bank to the drive-through window. ... It looked like [the tellers] were just trying to get a look or . . . maybe catch him to tell him he forgot something [, but] when [the deputy] noticed there were two of them and they didn’t go out the door, . . . then [he] thought they were trying to look at a tag number or something to get a tag number. [Deputy Garland then] sped up to drive on around to the other side of the bank [and he noticed that] one of the tellers came to the drive-through windowf. This teller] told [the deputy that] this person in this van was acting very suspicious.” The bank teller did not have time to tell Deputy Garland why she thought the man in the van was “acting very suspicious” because the suspect “was in the process of pulling out.” The deputy “went ahead and proceeded to pull in behind the van and follow him.”

Although Deputy Garland followed the van for quite some distance, he did not observe any traffic violations. Nonetheless, the deputy decided to stop the van to “[f]ind out if this person was a licensed driver, was possibly wanted, find out what his reason for being there was.” The suspect turned out to be defendant. Defendant did not have a driver’s license, and the van he was operating had been acquired (apparently by a third party) by use of a stolen credit card. Defendant was arrested and taken into custody.

The trial court denied defendant’s motion to suppress, and defendant filed an application for interlocutory appeal. Defendant filed a notice of appeal after we granted defendant’s request to appeal. Held:

In four enumerations of error, defendant challenges the denial of his motion to suppress.

“ ‘ “We have repeatedly held that an authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has ‘reasonable grounds’ for such action — ‘a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.’ (Cit.)” (Cit.)’ Brooks v. State, 129 Ga. App. 109, 111 (198 SE2d 892) (1973).” Coley v. State, 177 Ga. App. 669 (1), 670 (341 SE2d 9). In the case sub judice, Deputy Garland explained his reasons for stopping the van as follows: “The fact of being a rental van, that fact we’ve had several bank robberies in that time period, the fact that the tellers ran to the front door as if they were appearing to get better description or tag number or whatever they were doing, the fact that the other teller said that he was suspicious.” Deputy Garland further explained that “rental cars are used in a lot of crimes.” However, the deputy admitted on cross-examination that he had no idea whether any of the recent bank robberies in the Lithia Springs area involved rental cars and that he “didn’t know if [the driver of the rental van had] committed a crime in the past or if he was going to commit a crime. ...” The following discourse more fully discloses the deputy’s basis for stopping the suspect who was operating the van: “[DEFENSE COUNSEL:] So all you had on this guy, the reason you stopped him was — what was [the] crime . . . that you thought he was committing? [DEPUTY GARLAND:] Didn’t know that he’d committed any crime. Q. You didn’t know anything about him committing a crime . . .? A. . . . No, sir, sure didn’t. Q. You had no reason to believe that he’d committed a crime or was about to commit a crime . . .? A. I had reason to believe that he was possibly trying to or attempting to. Q. Just a generalized suspicion that he looks suspicious, right? A. No. The tellers saying he was suspicious. Q. Well, that’s all you had was them telling you that he looked suspicious? A. Basically. Q. Generally suspicious. A. That’s just kind of confirmed my suspicion. Q. Just by looking at him, he looked suspicious? A. Yeah.”

“ ‘ “Although an officer may conduct a brief investigative stop of a vehicle, (cit.), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v, Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); (Cit.) Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only ‘unparticularized suspicion or “hunch,” ’ 392 U. S. at 27 (88 SC at 1883, 20 LE2d at 909).” (Cit.) “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.)” (Cit.)’ Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987). ‘(T)his suspicion need not meet the standard of probable cause, (but) must be more than mere caprice or a hunch or an inclination. (Cit.)’ State v. Smith, 137 Ga. App. 101, 102 (223 SE2d 30) (1975).” Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440). In the case sub judice, the deputy gave no factual basis supporting a founded suspicion that defendant was committing or had just committed a crime at the bank. The deputy simply saw a stranger drive a van (with bumper stickers with the insignia of a rental car agency) into a bank parking lot, observed bank tellers scrutinize the stranger as he was preparing to leave the bank’s parking lot and was informed by one of the tellers that this stranger “was acting very suspicious.” The teller did not give the deputy a factual basis for her suspicion, and the deputy could not explain why driving a rental van into a bank parking lot is suspicious activity in Lithia Springs, Georgia. Under these circumstances, we cannot affirm the trial court’s conclusion that the deputy had a founded basis for stopping the rental van defendant was operating. Driving a rental van and going into a bank where tellers think a customer is “acting very suspicious” (without giving any factual basis for such suspicion) is insufficient (as a matter of law) to give rise to a reasonable suspicion of criminal conduct. Consequently, the trial court erred in denying defendant’s motion to suppress.

Decided June 7, 1995.

Gerard J. Lupa, for appellant.

J. David McDade, District Attorney, Bradley R. Malkin, Assistant District Attorney, for appellee.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0186.
    MANLEY v. STATE OF GEORGIA.
    (458 SE2d 179)
   McMurray, Presiding Judge.

This appeal is taken from a judgment in favor of the State in a civil forfeiture action. The action stemmed from the arrest of Charles Manley for violation of the Georgia Controlled Substances Act. This appeal by Manley alleges numerous errors by the trial court, all in the following general areas: (1) his arrest was invalid; (2) law enforcement officers were on his property illegally when marijuana was discovered and the arrest made; (3) seizure of certain of Manley’s personal property was unjustified; and (4) failing to find that he “had a right to trial by jury with respect to the present forfeiture action.”

Roy Morris, a conservation sergeant with the Department of Natural Resources, was checking various hunting sites for violations of the hunting laws. On one tract, the sergeant detected a strong odor of marijuana and came upon a marijuana field. Morris left the property and returned later in the day with additional law enforcement officers to destroy the marijuana. While pulling up marijuana stalks and taking them to his vehicle, he heard the sound of a truck approaching. He ran toward the truck, which rapidly backed up. Morris, who was in uniform, got into his marked vehicle and pursued the truck, using his blue lights and siren. The truck pulled over, and Manley exited the vehicle. Twist ties consistent with those seen securing the marijuana plants were found on Manley’s person and in his truck. Held:

1. Defendant contends the trial court erred in finding that there was probable cause for his arrest. The defendant asserts the State had neither probable cause nor articulable suspicion to justify a stop of his vehicle.

“Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. . . . Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search.” (Citations and punctuation omitted.) State v. Billoups, 191 Ga. App. 834, 835 (383 SE2d 198). The officer was in close proximity to the marijuana field when defendant’s vehicle approached, and access to the field was limited by a locked cable. At that particular moment, the police may have had only articulable suspicion to justify a Terry stop of the defendant. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889).

However, it matured into probable cause for arrest when the officer observed the ties hanging out of defendant’s pocket and in the back of his truck which were consistent with those seen tying the marijuana to the supporting stakes. Also, fresh tire tracks found near the parking place of the conservation vehicle prior to the chase suggested that Manley had been in a position to see that it was a marked law enforcement vehicle he was attempting to flee. Thus, there was probable cause for Manley’s arrest. The conservation officer did not lack authority to stop or arrest Manley. OCGA § 27-1-20 (a) (10); Smith v. State, 204 Ga. App. 576 (1) (420 SE2d 29). This and additional enumerations of error premised upon the supposition that the arrest of Manley was illegal are without merit.

2. Defendant contends that law enforcement officers should not have been allowed entry onto his posted property, and that said entry constituted trespass and invalidated any forfeiture action. He specifically asserts that the posting of no-trespassing signs and no-hunting signs created a zone of privacy in which entry by anyone was forbidden. “[I]n Hester v. United States, 265 U. S. 57, 59 (44 SC 445, 68 LE 898), the United States Supreme Court held that even if the law enforcement agents had trespassed onto privately owned land an illegal search and seizure did not occur, because the special protection accorded by the Fourth Amendment to the people in their ‘ “persons, houses, papers, and effects” ’ is not extended to the open fields.” Perry v. State, 204 Ga. App. 643 (2), 645 (419 SE2d 922). See also Mattingly v. State, 205 Ga. App. 777 (1) (423 SE2d 709) and Thomas v. State, 203 Ga. App. 529, 531 (2), 533-534 (417 SE2d 353). Also, the conservation officer did not lack authority to go upon the property. OCGA § 27-1-20 (a) (6).

3. Manley contends that there was insufficient evidence to justify the seizure of his 1973 Chevrolet pickup truck, including a rifle and rifle accessories therein, his 1969 Chevrolet Camaro, $469 cash, and Mettler digital scales.

Manley asserts that he was on the property checking deerstands and sighting his rifle, and that the wire ties found in his possession were for securing camouflage covering on a deerstand. However, the testimony revealed that Manley was in his 1973 Chevrolet pickup truck when he tried to flee from Morris, that a rifle and accessories were in the cab of the truck, and that in the back of the truck were pull-ties consistent with those used in the care and cultivation of the marijuana plants located on the property. Under OCGA § 16-13-49 (d) (2), property that is used in any manner to facilitate a violation of the Georgia Controlled Substances Act, or any proceeds derived therefrom, is contraband, and no person shall have a property right to it. The evidence authorized a conclusion that the truck, and the rifle and accessories, were used by Manley to care for and protect his marijuana field, and facilitated his drug business. Furthermore they were in close proximity to the marijuana fields and thus are subject to forfeiture pursuant to OCGA § 16-13-49 (d) (6).

The defendant argues that the evidence was insufficient to support the forfeiture of his 1969 Chevrolet Camaro because the testimony revealed that there was only 2.38 ounces of loose marijuana found in the trunk of the vehicle, along with some vermiculite and soil. Manley asserts that the Camaro is not subject to forfeiture since OCGA § 16-13-49 (e) provides: “A property interest shall not be subject to forfeiture under this Code section for a violation involving one gram of cocaine or less or four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.” However, Manley’s property is also subject to forfeiture pursuant to OCGA § 16-13-49 (d) (6), which states that the following are declared to be contraband and no person shall have a property right in them: “All moneys, negotiable instruments, securities, or other things of value which are found in close proximity to any controlled substance or marijuana or other property which is subject to forfeiture under this subsection.” Law enforcement agents found the Camaro in close proximity to duffel bags filled with marijuana and also in close proximity to the basement where many pounds of marijuana were being dried. Furthermore, the Camaro is subject to forfeiture under OCGA § 16-13-49 (d) (2), since it was used to facilitate a violation of the Georgia Controlled Substances Act. As the trial court determined, in considering evidence of scattered marijuana in the trunk of the vehicle, and the distance between the field and the residence where the marijuana was processed, it was reasonable to conclude that the vehicle was used to transport Manley’s marijuana crop from the field to his residence.

Defendant argues that the $469 cash found in his pocket at the time of his arrest should not be subject to forfeiture. While there was no evidence at trial showing that this money was proceeds from a drug transaction, or that it was used to facilitate a drug transaction, the money is still subject to forfeiture based on OCGA § 16-13-49 (s) (2), which states “The fact that money . . . was found in proximity to contraband or to an instrumentality of conduct giving rise to forfeiture authorizes the trier of the fact to infer that the money . . . was the proceeds of conduct giving rise to forfeiture or was used or intended to be used to facilitate such conduct.” The money clearly was in proximity to contraband — that is, the truck, the rifle and the accessories, the field, and the ties — as defined by OCGA 16-13-49 (d) and therefore was properly forfeited.

Decided June 7, 1995.

Strauss & Walker, John T. Strauss, for appellant.

Alan A. Cook, District Attorney, Gary D. Bergman, Thomas IF. Hayes, for appellee.

Defendant also objects to forfeiture of the Mettler digital scales which were seized from his hall closet. He specifically argues that there is no evidence showing that these scales were used for illicit drug activity. No evidence was presented why Manley an alleged electrician would need these scales. Yet evidence was offered by the State that heat-sealed packages had been marked with the precise amount of drugs in them. The evidence authorized a conclusion that the scales were used by the defendant to weigh marijuana. Therefore the trial court’s forfeiture of the scales pursuant to OCGA § 16-13-49 (d) (2) was not error.

4. Defendant asserts error in allowing this forfeiture action to proceed without a trial by jury. OCGA § 16-13-49 (o) (5) and (p) (6) expressly mandate that the proceeding must be held by the court without a jury. See also Swails v. State of Georgia, 263 Ga. 276 (431 SE2d 101).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Smith, Judge.

text:
    A95A0781.
    MARTIN v. DUNWOODY-SHALLOWFORD PARTNERS, L. P.
    (458 SE2d 388)
   Smith, Judge.

James Martin appeals from the grant of summary judgment to appellee Dunwoody-Shallowford Partners, L. P., in this slip and fall case.

For the purposes of this appeal, we give Martin the benefit of every reasonable doubt in determining whether a triable issue of material fact remains. See, e.g., Green v. Johnston Realty, 212 Ga. App. 656, 657-658 (1) (442 SE2d 843) (1994). Under this standard, we assume the following facts to be true.

Martin maintained an office on appellee’s premises provided by one of appellee’s tenants in exchange for Martin’s consulting services. Prior to Martin’s fall he had pulled into appellee’s parking lot, exited his car, and walked approximately two steps toward the curb before stepping up onto the landscaped yard in front of 15 Dunwoody Park. Martin avers that as he walked inside, he did not see any ice on the yard or sidewalk.

Within a minute or so, Martin returned to his car, approaching it from the rear. He asserts that as he walked back to his car, he was watching where he was going but did not see any ice in the parking lot. Martin fell and was injured. He claims that he fell because a transparent sheet of ice he did not see covered the path he took to his car, that appellee’s sprinkler system provided the water creating the hazard, and that appellee was made aware that its sprinklers were creating such a hazard prior to the date of Martin’s fall.

1. As a preliminary matter, Martin contends appellee owed him a duty greater than that owed mere licensees to avoid causing “willful and wanton injury.” OCGA § 51-3-2. We agree. As the business invitee of one of appellee’s tenants, appellee owed Martin the duty of not exposing him “ ‘to a dangerous and deceptive situation amounting to a hidden peril.’ [Cit.]” Paul v. Sharpe, 181 Ga. App. 443, 444-445 (1) (352 SE2d 626) (1987). We therefore need not consider whether the invitee-licensee distinction urged by appellee is even relevant given the nature of the hazard and the manner in which appellee allegedly created that hazard. In this regard, see Lipham v. Federated Dept. Stores, 263 Ga. 865, 866 (440 SE2d 193) (1994) (invitee-licensee distinction essentially irrelevant where conduct alleged concerns affirmative acts of negligence attributable to the landowner as opposed to mere nonfeasance of the type addressed in OCGA § 51-3-1).

2. “In order to prevail on a motion for summary judgment... a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence.” (Citations and punctuation omitted.) Collier v. Evans, 199 Ga. App. 763, 766 (5) (406 SE2d 90) (1991). Martin essentially contends appellee has failed to make a prima facie showing that it is entitled to summary judgment as a matter of law. We agree and reverse.

(a) Appellee suggests Martin’s action must fail merely because he admits he never saw the ice he claims caused his fall. A witness confirmed, however, that ice had indeed formed in the location where he fell that morning, and appellee has failed to rebut Martin’s contention with evidence demonstrating there was no ice present at the time of Martin’s fall. The fact that Martin cannot personally confirm that he slipped on ice by no means constitutes conclusive evidence precluding that possibility, especially in light of other evidence presented on the issue. At the very least, a jury question remains on this issue.

(b) Appellee also attempts to rely on the rule that “ ‘[w]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.’ [Cit.] ” Souder v. Atlanta Family Restaurants, 210 Ga. App. 291, 292 (1) (435 SE2d 764) (1993). In cases where this rule has been applied, however, the defect causing the fall invariably has been a static condition readily discernible to a person exercising reasonable care for his own safety, a factual circumstance not necessarily present in this case.

Martin alleges he slipped on an invisible sheet of ice of which he never became aware. We cannot say as a matter of law that Martin must have known the ice existed merely because he first exited the vehicle and took two steps toward the sidewalk. It was not Martin’s burden to present evidence showing that the hazardous condition complained of was so severe that it would invariably cause imbalance or injury to a person traversing it while ignorant of its existence. Martin also points out that he took a different path in returning to his vehicle, a factor a jury could reasonably take into consideration.

Appellee makes much of the fact that Martin returned to his vehicle within a minute of arriving. It does not necessarily follow, though, that the condition of any ice near Martin’s vehicle could not possibly have become even more hazardous during the brief time Martin was inside the prémises.

In short, we agree with Martin that under the totality of the circumstances, appellee is not entitled to summary judgment merely because Martin slipped and fell only after returning to his vehicle.

(c) Finally, we agree with Martin that he has presented a legitimate basis for asserting that appellee had constructive knowledge of the hazard. The company in charge of building maintenance was notified both on December 13 and December 16, 1991, that the sprinkler system was causing “black ice” to form in the freezing weather. According to the affidavit of Anita Farrell, who at the time of the accident was employed by the same tenant with whom Martin dealt, the sprinkler system was again activated the morning of Martin’s fall, December 17, 1991, and ice again formed. Assuming this is true, and assuming the sprinklers were indeed the source of the “black ice” on which Martin fell, appellee had constructive knowledge of a serious hazard that would continue to be created so long as its sprinklers continued to operate in freezing temperatures.

Since appellee has failed to state a prima facie case entitling it to judgment, the decision of the trial court must be reversed.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

Decided June 8, 1995.

Fitzgerald & Schultz, Andrew H. Schultz, Anne E. Barnes, for appellant.

Thomas, Kennedy, Sampson & Patterson, Robert D. Ware, for appellee.


text:
    A95A0890.
    TORRANCE v. THE STATE.
    (458 SE2d 495)
   Birdsong, Presiding Judge.

Following a trial by jury, John Torrance was convicted of one count of driving under the influence of alcohol (OCGA § 40-6-391) and one count of following too closely (OCGA § 40-6-49). On appeal, he contends the trial court erred in granting the State’s motion in limine, and also erred in failing to grant appellant’s motion for directed verdict on both charges.

Appellant admitted he had consumed three beers at a bar-and-grill over a five-hour period. When he left the bar he drove along Interstate 285, traveling in the second lane from the left. An 18-wheel tractor trailer, which was diagonally to his front and left, swerved into appellant’s path of travel. Appellant swung his vehicle into the far left lane and struck the rear of a dump truck. At the accident scene the officer administered appellant three sobriety tests — a heel-to-toe walk test, a horizontal-gaze nystagmus test and a leg lift test. Based on appellant’s performance the officer determined appellant was under the influence of alcohol. Held:

1. In his first enumeration of error appellant contends that the trial court erred in granting the State’s motion in limine to exclude any reference during trial to the National Highway Transportation Safety Administration (NHTSA) or its standards, training methods and evaluations, or in not allowing appellant to utilize a NHTSAtrained expert. He asserts that this action by the trial court constituted an undue abridgement of his right to cross-examination in violation of both the Georgia Constitution and the Sixth Amendment of the United States Constitution.

The “right to a thorough and sifting cross examination must be tempered and restricted so as not to infringe on privilege areas or wander into the realm of irrelevant testimony. Control of the cross examination of a witness is to a great degree within the discretion of the trial court and will not be controlled unless abused. [Cits.]” Eades v. State, 232 Ga. 735, 737 (2) (208 SE2d 791).

Appellant contends that NHTSA promulgates rules and procedures which must be followed in administering sobriety tests and that unless these procedures are followed, the test results are invalid. However, the trial court found that these rules and procedures are not part of a police officer’s training in Georgia. Therefore, allowing the officer to be cross-examined regarding those procedures, as appellant wished, would be irrelevant. Construing the evidence in a light most favorable to upholding the findings and judgment by the trial court, the granting of the State’s motion in limine by the trial court was not clearly erroneous. State v. Brodie, 216 Ga. App. 198, 200 (1) (453 SE2d 786). In addition, the question whether to allow a NHTSAtrained expert witness to testify for appellant is also moot, as no such witness was available at the time of motion or trial.

2. Appellant also contends the trial court erred in refusing to grant his motion for directed verdict on the charge of following too closely. OCGA § 40-6-49 (a) provides: “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

“ ‘A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty.’ ” (Emphasis omitted.) Buchanan v. State, 215 Ga. App. 143, 145 (1) (449 SE2d 660).

In the case sub judice, appellant noticed an 18-wheel tractor trailer diagonally to his front and left swerve into his path of travel. To avoid the collision appellant swung his vehicle into the far left lane and struck a dump truck. Before making this evasive action, appellant was not in the same lane as the dump truck.

The standard of reviewing the denial of a motion for directed verdict of acquittal is stated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Harvey v. State, 212 Ga. App. 632 (442 SE2d 478). Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could not have found the defendant guilty of following too closely beyond a reasonable doubt because the evidence showed he was not following the truck.

3. Appellant also contends the trial court erred in refusing to grant his motion for directed verdict on the charge of driving under the influence of alcohol. He asserts that the evidence was insufficient to support a conviction. The evidence revealed, however, that appellant failed the field sobriety tests. The officer detected an odor of alcohol on appellant’s breath and noted that appellant’s eyes were glassy and bloodshot and that his speech was slurred. Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude a rational trier of fact could have found the defendant guilty of the crime for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, supra.

Decided June 8, 1995.

Bruce F. Morriss, Daniel Shim, for appellant.

Ralph T. Bowden, Jr., Solicitor, C. Christopher Flinn, W. Cliff Howard, Assistant Solicitors, for appellee.

Judgment affirmed in part and reversed in part.

Johnson and Smith, JJ., concur.


text:
    A95A1396.
    THOMPSON v. POTOMAC RIVER FRONT LIMITED PARTNERSHIP.
    (458 SE2d 390)
   Blackburn, Judge.

Potomac River Front Limited Partnership (Potomac) filed an authenticated judgment from the District of Columbia against appellant Robert Thompson, Jr., and two of his law partners in the Superior Court of Fulton County under OCGA § 9-12-130 et seq., the Uniform Enforcement of Foreign Judgments Law (UEFJL). The superior court denied Thompson’s motion to stay enforcement of the foreign judgment and concluded that Potomac could proceed to execute the judgment. Thompson now challenges the trial court’s ruling, asserting that UEFJL is not applicable since the District of Columbia is not a state. Because the District of Columbia judgment is a foreign judgment as defined in the UEFJL and enforceable in this state, we must affirm the trial court.

Under UEFJL, particularly OCGA § 9-12-131, a foreign judgment is “a judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in this state.” There are no Georgia appellate decisions interpreting this statute as it relates to judgments of the Superior Court of the District of Columbia. The United States Supreme Court, however, has long recognized that the Superior Court of the District of Columbia is a court of the United States. Embry v. Palmer, 107 U. S. 3, 10 (2 SC 25, 27 LE 346) (1882); see also Washington Gas Light Co. v. Hsu, 478 FSupp. 1262 (D.C. Md. 1979). That superior court was created by the United States Congress pursuant to Article I of the Constitution. Palmore v. United States, 411 U. S. 389, 398-399 (93 SC 1670, 36 LE2d 342) (1973). The judgments of courts of the United States have invariably been recognized upon the same footing — concerning the obligations created by them — as domestic judgments of the states wherever and whenever enforcement of those judgments are sought. Embry, supra. Therefore, we must conclude that the District of Columbia judgment is a judgment of a court of the United States and Potomac could seek to enforce the judgment in any court of competent jurisdiction in this state. See OCGA § 9-12-132.

Decided June 8, 1995.

Thompson & Associates, Robert T. Thompson, Jr., Robert P. Manning, for appellant.

Orr & Edwards, W. Fred Orr II, James G. Edwards II, for appellee.

Thompson maintains that OCGA § 9-12-138 restricts the application of the UEFJL in this case. This statutory provision merely sets forth a reciprocity requirement and provides that the Act will apply only to judgments entered in states which have adopted an act substantially similar to UEFJL. Although the District of Columbia is not a state, the district has adopted a similar act. See District of Columbia Court Rules Annotated, § 15-351 et seq. In addition, Thompson’s reliance upon the Georgia Foreign Money Judgments Recognition Act is misplaced because that statute applies only to judgments obtained in jurisdictions outside the United States and its insular possessions. OCGA § 9-12-111. See also Collins v. Peacock, 147 Ga. App. 424 (1) (249 SE2d 142) (1978). Consequently, the trial court did not err in concluding that the District of Columbia judgment may be enforced against Thompson in this state.

Judgment affirmed.

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