author: Judge Harold R. Banke.

text:
    A96A2248.
    MORRIS v. CSX TRANSPORTATION, INC.
    (481 SE2d 585)
   Judge Harold R. Banke.

Carl Randy Morris, a rail car inspector, appeals the jury verdict for his employer, CSX Transportation, Inc. (“CSX”), in this action brought under the Federal Employers’ Liability Act, (“FELA”), 45 USC § 51 et seq. Morris enumerates five errors.

This case arose after Morris allegedly injured his back while replacing a brake shoe on a rail car parked in CSX’s Augusta yard. Morris maintains that the brake shoe was difficult to replace because corresponding brakes, larger than the car’s specifications permitted, left too little slack and CSX knew of the error. The complaint alleges that CSX (1) negligently failed to provide Morris with a reasonably safe place to work and (2) violated the Safety Appliance Act, 45 USC § 1 et seq., by using a defective brake on its rail car. Morris sought over one million dollars in damages. Held:

1. The trial court properly rejected Morris’ motion for new trial because the evidence did not demand a finding that CSX’s alleged negligence “played a part, however small, in the injuries that he sustained.” Neal v. CSX Transp., 213 Ga. App. 707, 709 (2) (445 SE2d 766) (1994). In fact, under the evidence presented the jury legitimately could have found that a brake shoe did not cause Morris’ alleged injury. When Morris reported the injury a week after it purportedly happened, he was unable to positively identify the car on which it allegedly occurred. He identified the car only after his attorney received information about the over-sized brake shoe years later during discovery. The record shows that a brake shoe one-half inch too large may have been on one of the brakes on the car on which Morris was working when his alleged injury occurred. But each car had eight brake shoes and Morris failed to establish that he worked on a particular brake that could have been affected by the over-sized brake shoe, a failure of proof created by not timely reporting the alleged injury. Morris admitted that he had not observed that any of the brake shoes were the wrong size.

In addition, Morris’ failure to timely report the incident and evidence that he had not sustained injuries of the extent and severity claimed undermined his credibility. At trial, the evidence revealed that Morris worked a week following the injury before reporting it to his supervisor or co-workers. The day after the injury, Morris replaced over 20 brake shoes. When he reported the injury, he stated it was no one’s fault. He was subsequently cited for failing to make an immediate oral and written report to his supervisor following the injury and taking unnecessary chances in the performance of his duties.

In addition, notwithstanding his claim of devastating pain, Morris admitted that he kept a garden, performed yard work for an elderly neighbor, kept up his four vehicles, and helped his daughter move. Morris’ next door neighbors testified that he had been “very active” around the house during the previous three years, tilling, weeding, mowing, digging, removing and constructing fences, using a chain saw, and working on cars and the roof. In addition, CSX presented a videotape of Morris performing such yard work as weeding and cranking a mower. Morris admitted that he filed a personal injury action following an automobile accident approximately two months after the injury at issue claiming permanently disabling injuries including back pain. Because some evidence, viewed in the light most favorable to the prevailing party, supports the verdict, the trial court did not abuse its discretion in denying the motion for new trial. Id.; Estfan v. Poole, 193 Ga. App. 507, 509-510 (1) (d) (388 SE2d 373) (1989).

2. We must affirm the trial court’s decision to direct a verdict on the strict liability claim under the Safety Appliance Act because Morris failed to satisfy his burden of presenting evidence that the train was “in use” within the meaning of that statute when the alleged injury occurred. See CSX Transp. v. McCord, 202 Ga. App. 365, 366 (2) (414 SE2d 508) (1991) (plaintiff bears the burden of proving Safety Appliance Act was triggered); Pinkham v. Maine Central R. Co., 874 F2d 875, 881 (6) (1st Cir. 1989) (“in use” issue is a question of law); OCGA § 9-11-50 (a) (absence of conflicting evidence on material issue).

In construing the statutory language, “Congressional intent and the case law . . . clearly exclude those injuries directly resulting from the inspection, repair, or servicing of railroad equipment located at a maintenance facility.” Angell v. Chesapeake & O. R. Co., 618 F2d 260, 262 (4th Cir. 1980). Further, “[generally, courts have not applied the Act to trains involved in switching operations — those procedures by which the cars and engines are uncoupled, moved, and reassembled — even though the trains are in motion.” Trinidad v. Southern Pacific Transp. Co., 949 F2d 187, 188 (2) (5th Cir. 1991); accord Maynard v. Norfolk & Western R., No. 94-1285 (4th Cir. 1995), cert. denied, _ U. S. _ (116 SC 85, 133 LE2d 42) (1995); compare Brady v. Terminal R. Assn., 303 U. S. 10 (58 SC 426, 82 LE 614) (1938) (injury occurred while the train was en route); Angell, 618 F2d at 260 (engine which caused the injury had already passed inspection). The cases make clear that the determination of whether a rail car is “in use” is fact driven. See Annot., “When Railroad’s Equipment is Being . . . ‘Used’. . . so as to Bring Injury or Death of Workman within Purview of Federal Safety Appliance Act (45 USC §§ 1 et seq.),” 96 ALR2d 419, 421, § 2.

In the instant case, the record shows that the alleged injury may have occurred while Morris was conducting a predeparture inspection of the outbound train at issue. At the time, the train was “blue flagged” on a track next to the main line, meaning the switches on each end of the track were locked closed so that the train remained stationary while it was inspected and other trains stayed off the track. These undisputed facts, with all reasonable deductions therefrom, fail to generate the requisite conflict in the evidence needed to preclude a directed verdict on whether the train was “in use.” OCGA § 9-11-50 (a); Trinidad, 949 F2d at 188.

Morris bore the burden of proof on this issue. McCord, 202 Ga. App. at 366; see Edge, 81 Ga. App. at 608-609. However, he designated that much of the trial record be omitted from the record on appeal. OCGA § 5-6-37. He presented no evidence showing whether the train had been withdrawn from service after it arrived at the yard, disassembled on its arrival, or released for travel. Nor does the record reflect the length of time it had been at the yard or what kind of maintenance it underwent during its stay. In the absence of any conflicting evidence on the “in use” issue, the trial court’s decision to direct the verdict on the Safety Appliance Act claim must be affirmed.

3. In light of our ruling in Division 2, it follows that the trial court did not err in refusing to instruct the jury on the Safety Appliance Act.

4. The trial court properly rejected Morris’ contention that a violation of the Interchange Rules of the American Association of Railroads (“AAR”) constituted a violation of the Safety Appliance Act. Morris claimed CSX violated AAR Rule 12, which purportedly provides that only one and one-half inch brake shoes may be applied to cars stenciled for such shoes, arguing that Federal Railroad Administration (“FRA”) regulations incorporated the rule. Inasmuch as Morris provided no authority requiring this conclusion, we decline to impose the strict liability required under the Safety Appliance Act. We likewise reject Morris’ contention that strict liability should be imposed despite the Act’s failure to directly incorporate the AAR Rules. Notwithstanding Morris’ argument to the contrary, Central of Ga. R. Co. v. Lightsey, 198 Ga. App. 59 (400 SE2d 652) (1990) did not adopt the view that where no FRA regulations cover a particular safety issue, regulations enacted by other entities apply to railroads. Lightsey never reached that issue, holding instead that FRA regulations preempted the Occupational Safety & Health Administration’s authority to regulate the conditions at issue. Id. at 62 (2) (a). In the absence of authority requiring the imposition of strict liability for violations of the AAR Rules, the trial court did not err in granting CSX’s motion for partial directed verdict.

5. Because the violations of the AAR Rules do not subject CSX to strict liability, the trial court properly refused to instruct the jury to the contrary.

Judgment affirmed.

McMurray, R J, and Johnson, J., concur.

Decided February 12, 1997

Warshauer & Woodruff, Michael J. Warshauer, for appellant.

Fulcher, Flagler, Reed, Hanks & Harper, James W. Purcell, David P Dekle, for appellee.

       Morris was responsible for building, maintaining, and dismantling freight cars.

       Despite recent changes in the statutory language, the parties do not dispute that a rail car must be “in use” for the Safety Appliance Act to apply. See Atlantic Coastline R. Co. v. Edge, 81 Ga. App. 606, 608 (1) (59 SE2d 533) (1950). The brake provisions of the Safety Appliance Act presently state in pertinent part “a railroad carrier may use or allow to be used on any of its railroad lines ... a vehicle only if it is equipped with . . . secure sill steps and efficient hand brakes. . . .” 49 USC § 20302 (a) (1) (B).


source: Caselaw Access Project

license: Public Domain

text:
    A96A2270.
    DANZELL et al. v. CANNON.
    (481 SE2d 588)
   Judge Harold R. Banke.

This action arose after James W. Cannon d/b/a Remodeler’s Warehouse (“Cannon”) filed a materialman’s lien in South Carolina against William B. and Karen J. Danzell’s (“Danzell” collectively) South Carolina property and commenced a civil action there to foreclose on the lien. Danzell subsequently initiated the instant tort action against Cannon in Chatham County Superior Court. Danzell appeals from the trial court’s orders granting summary judgment, enumerating two errors.

The record shows that this case arose after Danzell engaged a contractor, Joshua Williams, to build a house on the property. Cannon supplied building materials to Williams, who had an open account. Danzell either paid Cannon directly for the materials or reimbursed Williams. Cannon allegedly submitted purchase orders to Danzell for equipment sold but not delivered to Williams. Danzell refused to pay, purportedly relying on Cannon’s assurances that all payments had been made.

Cannon subsequently filed the South Carolina materialman’s lien and sued both Danzell and Williams to perfect it. Danzell then successfully sued for release of the lien. Prior to the resolution of the South Carolina case, Danzell commenced the instant action, alleging, inter alia, that Cannon (1) committed slander to title and trespass when he filed the lien and (2) falsely represented that nothing was owed on the materials. Held'.

1. The trial court correctly determined that the doctrine of res judicata (claim preclusion) barred Danzell’s false representation claim. This doctrine, codified at OCGA § 9-12-40, provides: “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” Miller v. Charles, 211 Ga App. 386, 387 (439 SE2d 88) (1993). Res judicata prevents plaintiffs from splitting up claims arising from the same transaction and prosecuting them piecemeal or presenting only a portion of the grounds on which relief is sought and leaving the rest for a second suit if the first fails. Cooper v. Public Finance Corp., 146 Ga. App. 250, 252 (1) (246 SE2d 684) (1978); Sorrells Constr. Co. v. Chandler &c., 214 Ga. App. 193, 194 (447 SE2d 101) (1994).

Decided February 12, 1997.

Clark & Clark, Fred S. Clark, for appellants.

Danzell’s false representation claim arose out of the same transaction that provided the basis for the South Carolina action, the same parties were involved, and only the legal theory differed. Hall v. Cel Oil Products Corp., 175 Ga. App. 813 (2) (334 SE2d 724) (1985). In the absence of any evidence challenging the South Carolina judgment, we must presume that it is “conclusive as to the subject matter which it purports to decide.” McIver v. Jones, 209 Ga. App. 670, 673 (c) (434 SE2d 504) (1993). Thus, res judicata barred the false representation claim.

Notwithstanding Danzell’s argument to the contrary, neither the prior judgment’s reliance on South Carolina law nor Cannon’s failure to provide notice of intent to rely on foreign law preclude this conclusion. Absent proper introduction and proof of the law of a sister state, it is presumed that such foreign law is identical to Georgia’s. Abruzzino v. Farmers’ & Merchants’ Bank, 168 Ga. App. 639, 640 (1) (309 SE2d 911) (1983). Thus, if Danzell desired the application of South Carolina law, he bore the burden of pleading and proving it. Id. Georgia law required him to assert the false representation claim in conjunction with the other claims arising out of the materialman’s lien. OCGA § 9-11-13 (a); Hall, 175 Ga. App. at 813 (2). Danzell’s contention that res judicata did not apply because the South Carolina action sounded in contract and false representation is a tort also lacks merit. Helmuth v. Life Ins. Co. of Ga., 194 Ga. App. 685, 686 (391 SE2d 412) (1990); see Garrett v. Life Ins. Co. of Ga., 221 Ga. App. 315, 317-318 (1) (471 SE2d 262) (1996).

2. This analysis applies equally to the slander to title claim, although the trial court did not dispose of it on that ground. Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741) (1994) (summary judgment right for any reason must be affirmed). Because res judicata also barred the slander to title claim, we need not reach Danzell’s remaining enumeration.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.

Oliver, Maner & Gray, Terri M. Yates, James P. Gerard, for appellee.

       The South Carolina court consolidated the actions and Cannon was awarded a money judgment against Williams.


text:
    A96A2275.
    JENKINS v. THE STATE.
    (481 SE2d 590)
   Judge Harold R. Banke.

Chris Jenkins was convicted of selling crack cocaine to a narcotics agent during an undercover drug operation. Following the denial of his motion for new trial, Jenkins asserts five errors.

After filing an affidavit of indigency, Jenkins received court-appointed counsel, W. Allen Adams, who represented him for over a year. On the morning of trial, Adams moved to withdraw as trial counsel based on Jenkins’ criticism of his representation. Although Jenkins alleged that he was talking to Adams for the first time, Adams stated that he had spoken with Jenkins about the case on “numerous occasions.” Jenkins informed the court that he was afraid to proceed to trial with Adams. At no point during the hearing did Jenkins claim that he had obtained other counsel. It is undisputed that no other attorney filed an entry of appearance on Jenkins’ behalf prior to trial and that no other attorney appeared before the court at the start of the trial. The trial court advised Jenkins that he could proceed with appointed counsel or represent himself. After noting that Jenkins was attempting to manipulate the system to avoid going to trial, the trial court denied Adams’ motion to withdraw. Later, during a bench conference, Jenkins inquired, “Well can I — can I get me a paid lawyer or something, cause I can’t go with him.” After the jury returned a guilty verdict, the court admitted into the record a handwritten note from Jenkins dated the last day of trial. In that note Jenkins claimed that he asked the judge “for a restrain [sic] Lawyer ‘Michael King’ but was refused to do so.” Held:

1. In two enumerations Jenkins asserts that he was denied due process by being forced to proceed with a court-appointed attorney and not an attorney of his own choosing. Jenkins further claims that the trial court erred by failing to determine whether he acted with reasonable diligence in retaining counsel. The pretrial hearing transcript fails to show that Jenkins retained King before trial and Jenkins’ inquiry to the court about prospectively obtaining a “paid lawyer” for himself belies his assertion that the trial court denied his right to proceed with retained counsel. Although an indigent defendant is entitled to adequate representation, he cannot fail to employ counsel promptly and then use that failure to delay his trial. Stephens v. State, 208 Ga. App. 620, 621 (1) (431 SE2d 422) (1993); compare Shaw v. State, 251 Ga. 109, 112 (303 SE2d 448) (1983).

Decided February 12, 1997

Michael B. King, for appellant.

William T. McBroom III, District Attorney, Michael G. Webb, Assistant District Attorney, for appellee.

2. We reject Jenkins’ contention that Adams was ineffective by failing to inform the court that Jenkins had retained trial counsel and by failing to move for a continuance so his retained counsel could prepare for trial. Notwithstanding Jenkins’ tardy and self-serving assertion that he hired King the day before trial, the record fails to support this claim. Even assuming for the sake of argument only that Jenkins retained King before trial, the record indisputably shows that Jenkins failed to so apprise the trial court when afforded the opportunity to do so. Moreover, if King had been retained, then it was incumbent upon King, not Adams, to follow the procedures mandated by the Uniform Superior Court Rules and, ultimately to seek a continuance. See Uniform Superior Court Rules 4.2, 4.6.

3. Jenkins asserts that he was denied effective assistance of counsel because his attorney failed to subpoena purportedly crucial alibi witnesses. In order to establish ineffectiveness of trial counsel, Jenkins must show not only that his counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiency. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). In light of the overwhelming evidence of Jenkins’ guilt including the undercover officer’s testimony describing presale negotiations with Jenkins and Jenkins’ direct hand-to-hand sale of a rock of cocaine to him, Jenkins failed to make the requisite showing of prejudice to his defense, even assuming arguendo that counsel’s performance was somehow deficient. Id. The trial court’s finding that Jenkins was not denied effective assistance of counsel was not clearly erroneous and must be affirmed. Warren v. State, 197 Ga. App. 23, 24 (397 SE2d 484) (1990).

Judgment affirmed.

Andrews, C. J, and Smith, J., concur.

       Jenkins claims that on the day before trial he informed his court-appointed counsel that he had retained as trial counsel, Michael B. King, now Jenkins’ appellate counsel.


author: Smith, Judge.

text:
    A96A2328.
    LANE v. SPRAGG et al.
    (481 SE2d 592)
   Smith, Judge.

In this lawsuit, Robin Lane seeks to recover damages from Dr. C. H. Spragg (“Dr. Spragg”) for the wrongdoing of Spragg’s son and alleged partner, Bradley Spragg (“Bradley”). The trial court found, as a matter of law that Dr. Spragg was not his son’s actual or ostensible partner and granted him summary judgment. Lane appeals from this ruling. We affirm.

Under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991), a defendant may obtain summary judgment if he shows, by the record, an absence of evidence to support an essential element of the plaintiff’s case. In determining whether the trial court properly granted summary judgment to Dr. Spragg, we review the record de novo, construing the evidence and all inferences from the evidence strongly in favor of the nonmoving party. Denise v. Cannon, 219 Ga. App. 765, 766 (466 SE2d 885) (1995). The record before us shows the trial court’s ruling is correct.

Bradley Spragg operated “Southwood Farm” and was in the business of boarding and training horses and giving riding lessons. As part of that business, it appears Bradley acted as Lane’s agent for purchase of a horse. Lane’s suit involves misrepresentations Bradley allegedly made to her during the course of that purchase.

Lane claims Dr. Spragg’s involvement in Bradley’s business shows the two were partners or ostensible partners. The evidence shows that Dr. Spragg assisted Bradley in several ways: He co-signed the loan that allowed Bradley to purchase Southwood Farm; he cosigned the lease on Bradley’s residence; he gave Bradley financial advice; and he made other personal loans and gifts to his son. Southwood’s standard release of liability form also releases Dr. Spragg. In her affidavit in response to the motion for summary judgment, Lane stated Bradley told her he and his father were partners in the business. She also recalled a conversation in which Dr. Spragg stated he had “some ownership interest” in the business. By virtue of her dealings with Southwood, Lane claims she had been led to believe and “had been given the impression” that Bradley Spragg and Dr. Spragg were partners.

Dr. Spragg, however, filed an affidavit denying he and his son had any partnership arrangement. He denied sharing in the profits and losses of the business and stated his only interest in Southwood Farm was as a father and as a co-signer of the loans made to purchase the business. In his deposition, Dr. Spragg admitted telling people that he had financed his son’s business; however, he denied telling anyone he and his son were in business together and denied knowledge of any instance in which Bradley represented that the two were partners.

The evidence shows, as a matter of law, that Bradley and Dr. Spragg were not actual partners. “A partnership is an association of two or more persons to carry on as co-owners a business for profit.” OCGA § 14-8-6 (a). Here, direct evidence shows Bradley and Dr. Spragg were not actual partners. No inference from Dr. Spragg’s aid to his son is sufficient to support a contrary conclusion. See Andrews v. Messina, 206 Ga. App. 742, 743-744 (2) (426 SE2d 641) (1992).

Neither does the evidence support Lane’s contention that Dr. Spragg may be liable for Bradley’s acts as his “ostensible” partner. By statute, a person may be bound to pay partnership liabilities when he, “by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership.” OCGA § 14-8-16 (a); see Andrews, supra at 744 (3). Lane’s affidavit consists primarily of conclusory allegations that Dr. Spragg somehow led her to believe he and his son were partners. However, “[i]n response to a motion for summary judgment, a party cannot rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial. [Cit.]” Ga. Recovery v. Danley, 215 Ga. App. 236, 237 (1) (450 SE2d 263) (1994). We address those specific facts upon which Lane bases her opposition to the trial court’s grant of summary judgment.

First, assuming Bradley told Lane that Dr. Spragg was his partner, that fact is immaterial in light of Dr. Spragg’s uncontradicted testimony denying any knowledge of this statement or any like it. “A person who permits himself to be held out as a partner in a business will be bound for the partnership contracts. [Cit.]” (Emphasis supplied.) Time Fin. Svcs. v. Hewitt, 139 Ga. App. 270, 272-273 (5) (228 SE2d 176) (1976). See comment to OCGA § 14-8-16, noting that this statute provides for liability only where the ostensible partner consents to being held out as a partner. The record shows no evidence that Dr. Spragg consented to his son’s statement. In the relevant cases on which Lane relies, either evidence was presented that the ostensible partner represented himself as a partner, Pope v. Triangle Chem. Co., 157 Ga. App. 386, 388 (3) (277 SE2d 758) (1981); Hewitt, supra at 272 (5), or knew that another had represented him as a partner and failed to deny that representation, Clarke v. Woodward, 76 Ga. App. 181, 185-186 (45 SE2d 473) (1947).

Second, Lane interprets Dr. Spragg’s statement that he had an “ownership interest” in Southwood Farm to mean he and his son were partners. This interpretation is purely speculative. “[I]n ruling on a motion for summary judgment, a finding of fact that may be inferred from, but is not demanded by, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists, [cit.] provided that the circumstantial evidence may be construed consistently with the direct evidence. [Cit.]” Copeland v. Houston County Hosp. Auth., 215 Ga. App. 207, 208 (450 SE2d 235) (1994). While Dr. Spragg may have had an “ownership interest” because he was financially obligated to repay the South-wood loans should Bradley default, or because he co-signed a lease with his son, these interests do not amount to a partnership. See Hewitt, supra at 271-272 (relationship of creditor and debtor does not create partnership). Dr. Spragg’s alleged statement that he had an “ownership interest” is thus consistent with his testimony denying that he held himself out as Bradley’s partner.

Decided February 12, 1997

Freed, Lester & Klorfein, William R. Lester, Benjamin I. Fink, for appellant.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, John R. Bevis, for appellees.

Under the circumstances of this case, Dr. Spragg has pierced the pleadings by offering direct evidence he had no partnership arrangement with his son and never held himself out as his son’s partner or consented to be held out as a partner. Lane has failed to present specific facts creating any jury question on this issue. See Lau’s Corp., supra; Southeastern Wholesale Supply Co. v. Guevara, 191 Ga. App. 600, 601 (382 SE2d 685) (1989) (evidence established only that wife assisted husband’s business). The trial court did not err in granting summary judgment.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.

       In her brief, Lane points to Dr. Spragg’s deposition testimony in which he states “we” bought Southwood Farm. On the deposition’s errata sheet, however, Dr. Spragg stated that “we” should have been transcribed as “he,” referring to Bradley.


text:
    A96A2329.
    ANDERSON v. THE STATE.
    (481 SE2d 595)
   Judge Harold R. Banke.

Rufus Anderson II was convicted of burglary in a second trial of his case. Following the denial of his motion for new trial, Anderson primarily seeks to challenge the admission of his confession and the sufficiency of the evidence.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Anderson no longer enjoys the presumption of innocence. Rigenstrup v. State, 197 Ga. App. 176, 181 (4) (398 SE2d 25) (1990). Viewed in that light, the State’s evidence was as follows. Shortly before midnight, the contents of several jewelry showcases at MJ Jewelers were looted during a break-in. Numerous items of jewelry having a wholesale value of $11,000 were stolen. Ted Smith, Anderson’s cousin, testified that he purchased a Bulova watch for $25 from Anderson on the day after the burglary. Jeff Godwin, one of the store owners, identified the Bulova Marine Star watch which Detective Carl Smith confiscated from Ted Smith as similar to one of the missing watches normally sold for $225.

Donna Matthews, with whom Anderson and his girl friend, Ellen Lewis lived, vividly described her discovery of a nighttime jewelry sale. Matthews testified that when she arrived home late she discovered numerous people at her house and Lewis and Anderson selling a lot of jewelry that appeared new and had price tags.

At the Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) hearing, Anderson challenged the voluntariness of his confession. During the hearing, Detective Smith described the circumstances leading up to Anderson’s confession. Detective Smith explained that after determining that Anderson was a possible suspect in the burglary at MJ Jewelers, he interviewed Anderson’s girl friend, Ellen Lewis. Lewis informed Smith that on a recent occasion, when she arrived at Matthews’ house she noticed jewelry on the bed next to Anderson. While Anderson remained in jail on an unrelated charge, Lewis requested permission to accompany Smith for a visit to Anderson. During their meeting, Smith commented that he was planning to charge Anderson with burglary and that he would probably charge Lewis as an accessory. At that point, before being read his rights, Anderson stated that Smith did not need to charge Lewis that he would confess to the jewelry store burglary. According to Smith, Anderson then signed a written waiver of his Miranda rights prior to writing out a statement. In his handwritten confession, Anderson described breaking into MJ Jewelers, grabbing rings and watches from showcases then fleeing. Anderson stated that he primarily sold the jewelry on the street for crack although he did specifically mention selling jewelry to Ted Smith. The court determined that Anderson’s confession was admissible and it was later read into evidence at trial.

During his trial, Anderson admitted selling jewelry from Matthews’ house but claimed he had bought some of it from a stranger at the bus station for $100 and acquired the rest while serving in the military. According to Anderson, the watch he sold to Ted Smith was part of the jewelry he had purchased from the stranger. Held:

Decided February 12, 1997.

Barham, Dover, Bennett, Miller, Sherwood & Stone, William W. Broadfoot III, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

1. In two enumerations, Anderson challenges the denial of his motions in limine and to suppress and the trial court’s admission of his confession. When reviewing a ruling on a suppression motion, the evidence must be construed most favorably toward the trial court’s findings and judgment unless they are clearly erroneous. Ledford v. State, 220 Ga. App. 272, 273 (469 SE2d 401) (1996). During the Jackson-Denno hearing, Detective Smith explained that he told Anderson that he was considering charging Lewis, Anderson’s girl friend, as an accessory to the crime. Smith’s statement was a mere “truism” or recounting of facts rather than a threat of injury or promise of benefit within the meaning of OCGA § 24-3-50. Sampson v. State, 165 Ga. App. 833, 835 (9) (303 SE2d 77) (1983); Copeland v. State, 162 Ga. App. 398, 400 (3) (291 SE2d 560) (1982). The trial court did not err in admitting Anderson’s written confession. Martin v. State, 264 Ga. 826 (1) (452 SE2d 95) (1995). Inasmuch as the trial court properly admitted Anderson’s confession, it follows that the trial court correctly denied Anderson’s motions in limine and to suppress the same.

2. Based on Matthews’ testimony that she saw Anderson selling tagged jewelry that appeared new, Lewis’ statement that Anderson had jewelry on a bed, Anderson’s incriminating custodial statement, and his apparently implausible explanation as to how he obtained the jewelry, a rational trier of fact could have found Anderson guilty beyond a reasonable doubt of the crime of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Having determined that the evidence was sufficient to sustain Anderson’s conviction within the meaning of Jackson v. Virginia, 443 U. S. at 319, it necessarily follows that the trial court did not err in denying Anderson’s motion for directed verdict of acquittal. Hogan v. State, 210 Ga. App. 122, 123 (1) (435 SE2d 494) (1993).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

       By mutual agreement, during Anderson’s first trial, the court declared a mistrial based on manifest necessity due to problems created by Hurricane Opal. Although Anderson’s counsel makes numerous references in his appellate brief to the first trial, the jury based its verdict on the evidence admitted at the second trial.


text:
    A96A2374.
    U. B. VEHICLE LEASING, INC. v. VISION INTERNATIONAL, INC.
    (481 SE2d 597)
   Judge Harold R. Banke.

U. B. Vehicle Leasing, Inc. (“UB”) sued Vision International, Inc. (“Vision”), alleging breach of contract to lease a vehicle. UB appeals the trial court’s order directing a verdict in Vision’s favor, enumerating three errors.

This case arose after Zahid Hassan leased a Lexus from Nalley Luxury Imports (“Nalley”). In executing the agreement, Hassan named Vision as the lessee and himself as Vision’s vice president and the sole guarantor. Nalley assigned the lease to UB, which sued Vision for the balance due under the agreement after Hassan ceased making payments. UB also repossessed the vehicle.

Vision’s president Mohammed Qayum filed a pro se response asserting that because Hassan had divested his interest in Vision over a year before he leased the Lexus, Vision was not liable. Qayum attached a copy of the agreement containing Hassan’s resignation.

Before Vision obtained counsel, it received requests for admissions from UB and did not respond to them. Once retained, counsel informed UB that Vision would respond within 15 days. UB did not object, but commenced trial with the argument that Vision had admitted all the requests for admission by failing to timely respond. The trial court permitted Vision to withdraw the admissions. The court granted Vision’s motion for directed verdict after a bench trial. Held:

1. The trial court did not abuse its discretion by granting Vision’s motion to withdraw admissions. Upon a proper motion, trial courts may permit the withdrawal of admissions after the statutory time for answering has passed notwithstanding the fact that the failure to timely answer or object to matters raised in requests for admissions results in their automatic admission. OCGA § 9-11-36 (a) (2); Johnson v. City Wide Cab, 205 Ga. App. 502 (1) (422 SE2d 912) (1992). Inasmuch as Vision demonstrated that the admitted request for admissions could be refuted by admissible evidence and UB failed to satisfy the court that withdrawal would prejudice it in maintaining the action on the merits, we cannot say the trial court abused its discretion. Rowland v. Tsay, 213 Ga. App. 679, 679-681 (1) (445 SE2d 822) (1994); Kelly Energy Systems v. Bd. of Commrs. of Clarke County, 196 Ga. App. 519, 521 (3) (396 SE2d 498) (1990).

2. We reject UB’s contention that reversal is required because the trial court excluded an uncertified copy of a check from Vision purportedly for the down payment on the Lexus. Nalley provided the copy to UB, which sought its admission as a business record. The court sustained Vision’s objection to the copy for lack of proper foundation because UB’s witness, its regional marketing manager, was .absent when the check was tendered or when Nalley made the copy and he admitted he could not testify as to Nalley’s regular course of dealing.

Decided February 12, 1997.

Bridgers, Stringfellow, Bland & Peters, Henry R. Stringfellow, for appellant.

Akil K. Secret, for appellee.

Admission under OCGA § 24-3-14 (b), the business records exception to the hearsay rule, requires as a foundation the “testimony of a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of a business at the time of the event or within a reasonable time thereafter.” (Emphasis in original.) Hertz Corp. v. McCray, 198 Ga. App. 484, 485 (2) (402 SE2d 298) (1991). Because UB’s witness had no personal knowledge of the transaction or the making of the copy and provided conflicting testimony about his familiarity with Nalley’s business practices or regular course of dealing, we cannot say that the trial court manifestly abused its discretion in excluding the copy. Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 186-187 (3) (450 SE2d 452) (1994).

Moreover, even if exclusion was error, we And it harmless. See Hertz, 198 Ga. App. at 486 (2). The record shows that the check at issue was signed by Hassan and his wife. It therefore is not determinative of Vision’s involvement in this transaction, the crucial issue in UB’s case.

3. In its third enumeration, UB argues that the trial court erred in excluding the contract at issue in this action. The record demonstrates, however, that the contract was admitted without objection. The court’s questions as to Nalley’s failure to execute a corporate resolution do not go to the contract’s admissibility. On the contrary, they demonstrate its consideration of the evidence at issue.

Judgment affirmed.

Andrews, C. J., and Smith, J., concur.

       At trial, UB’s counsel stated that UB had obtained a judgment against Hassan.


text:
    A96A2392.
    HEFNER v. THE STATE.
    (481 SE2d 599)
   Smith, Judge.

A Haralson County jury convicted James Edward Hefner on two counts of armed robbery that arose from his 1995 holdup of the Corinth Quik Stop. On appeal, he claims the trial court erred in admitting evidence of a similar transaction and challenges the sufficiency of the evidence. We affirm.

1. In two enumerations of error, Hefner contends the evidence was insufficient to support his convictions. We apply the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979), and view the evidence with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

Hefner’s accomplice, Wolf, walked into the Quik Stop around 7:00 p.m.-on August 28. Brandishing a sawed-off shotgun, he took money from the cash register and a ring and bracelets from the clerk. Wolf, who pled guilty to the crime, implicated Hefner as the driver of the getaway car. Although no independent witness placed Hefner at the crime scene, two witnesses reported seeing a man slouched down in the driver’s seat of an older, metallic blue or silver car parked near the store at the time of the robbery. Approximately seven hours later, after another convenience store holdup, police apprehended Hefner, accompanied by Wolf, driving a car matching the witnesses’ description. Inside the car police found a sawed-off shotgun, money, and the jewelry stolen from the Quik Stop’s clerk. Hefner admitted to police he had been with Wolf since 7:00 p.m. but said he was too intoxicated to remember what happened.

Because only slight evidence is needed to corroborate an accomplice’s incriminating testimony, the evidence that Hefner had been with Wolf at 7:00 p.m., that he was found driving a car matching one seen at the crime scene, and that he was in possession of a shotgun and items stolen from the Quik Stop sufficiently supports Wolf’s testimony and the convictions. See Ladson v. State, 248 Ga. 470, 475 (5) (285 SE2d 508) (1981) (evidence that defendant possessed stolen goods corroborates accomplice’s testimony). Under these circumstances, the jury was entitled to infer that Hefner participated in the crime. See Norris v. State, 220 Ga. App. 87, 89 (2) (469 SE2d 214) (1996) (presence, companionship, and conduct before and after the crime are circumstances allowing a jury to infer one’s participation in the crime).

2. The similar transaction that Hefner contends the trial court erroneously admitted was a convenience store holdup that occurred in the early morning hours of August 29, 1995, moments before Hefner was arrested. The trial court admitted this crime to show Hefner’s “bent of mind and course of conduct.” “Absolute proof is not required that a defendant committed the offense in a similar transaction. . . . What is required is that there be evidence that the defendant was the perpetrator of the independent crime and sufficient similarity or connection between the independent crime and the offense charged, such that proof of the former tends to prove the latter. Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it.” (Citations and punctuation omitted.) Gunter v. State, 215 Ga. App. 517, 518 (1) (451 SE2d 108) (1994). Because Hefner provided no transcript of the pretrial hearing at which the trial court found this evidence admissible, our review is limited to the trial transcript. Miller v. State, 219 Ga. App. 284, 285 (2) (464 SE2d 860) (1995).

Decided February 12, 1997

Evan L. Stapler, for appellant.

James R. Osborne, District Attorney, Fred A. Lane, Jr., Assistant District Attorney, for appellee.

Hefner’s accomplice, Wolf, testified Hefner waited outside a convenience store while Wolf threatened the cashier with a shotgun and took a bag of money. Eyewitnesses confirmed the robber left in an older-model, light-blue Chevrolet. Hefner admitted dropping Wolf off at the convenience store, and the two were apprehended moments later with the stolen bag of money. This evidence was sufficient to show Hefner participated in the crime, and the crime was sufficiently similar to be admissible. See Ryles v. State, 216 Ga. App. 462, 464 (1) (454 SE2d 639) (1995); see also Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). The trial court did not err in admitting evidence of this second holdup, which tended to prove his participation in the offense for which he was charged and which further supports the convictions.

Judgment affirmed.

Andrews, C. J, and Pope, P. J., concur.


text:
    A96A2443.
    HUBBARD v. THE STATE.
    (481 SE2d 601)
   Smith, Judge.

Donald Robert Hubbard appeals from his convictions for child molestation, OCGA § 16-6-4 (a), and aggravated child molestation, OCGA § 16-6-4 (c). Evidence showed Hubbard fondled and orally sodomized the 11-year-old victim. The only issue before this Court is Hubbard’s claim that his trial counsel was ineffective because she failed to move for a Jackson-Denno hearing on the admissibility of Hubbard’s confession to police. The trial court denied Hubbard’s motion for new trial based on that claim, and we affirm.

To prove an ineffective assistance of counsel claim, a defendant must show his trial attorney’s performance was deficient and also “must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors. [Cits.]” Brogdon v. State, 255 Ga. 64, 68 (3) (335 SE2d 383) (1985). In this case, the trial court found Hubbard did not prove that his attorney’s failure to request the Jackson-Denno hearing prejudiced the defense. We review that ruling to determine whether it was clearly erroneous. Powell v. State, 210 Ga. App. 409, 414 (6) (c) (437 SE2d 598) (1993).

Although the trial court held no Jackson-Denno hearing, it did require the State to lay a foundation before admitting Hubbard’s confession. The officer who arrested Hubbard at his home stated Hubbard appeared to have been asleep. He took Hubbard to the police station and, over an hour later, administered Miranda warnings to him. Hubbard confirmed he understood his rights and signed a form listing those rights and indicating his waiver of them. The officer, who had experience in DUI cases, testified Hubbard smelled of alcohol but followed directions without difficulty and exhibited no signs of intoxication. Although Hubbard’s testimony appears to contradict the officer, the trial judge was authorized to accept the officer’s testimony and resolve this credibility issue against Hubbard. Marks v. State, 210 Ga. App. 281, 283 (2) (435 SE2d 703) (1993). The trial court fully charged the jury on the State’s burden to show the statement was made knowingly and voluntarily.

The trial court’s ruling was not erroneous. Evidence was presented showing Hubbard fully understood his constitutional rights and voluntarily waived them. See Simmons v. State, 266 Ga. 223, 226 (3) (466 SE2d 205) (1996) (statement voluntarily made even though defendant had been drinking); Shelby v. State, 265 Ga. 118, 119 (2) (453 SE2d 21) (1995) (statement voluntarily made despite defendant’s blood alcohol content of .24 percent). “Counsel on appeal has not demonstrated that the statement made by [Hubbard] was inadmissible and we note that the trial court charged the jury fully on the issue of determining whether [Hubbard] gave the statement freely and voluntarily. . . . The alleged deficiencies would not have changed the outcome.” Sebastian v. State, 195 Ga. App. 346, 347 (2) (393 SE2d 492) (1990). See also Brogdon, supra.

Decided February 12, 1997.

James R. Crawford, for appellant.

James R. Osborne, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.

       Previous appeals of this case were dismissed. Hubbard v. State, 208 Ga. App. 719 (431 SE2d 479) (1993); Hubbard v. State, 212 Ga. App. XXVIII (1994). Hubbard filed a successful habeas corpus petition, was granted an out-of-time appeal, and was allowed to pursue the issue of ineffective assistance in a motion for new trial.


author: Beasley, Judge.

text:
    A96A2513.
    PENN v. THE STATE.
    (481 SE2d 602)
   Beasley, Judge.

Penn was convicted of aggravated battery (OCGA § 16-5-24), aggravated assault (OCGA § 16-5-21), and simple battery (OCGA § 16-5-23). He was sentenced only for aggravated battery because the other two convictions merged. His sole enumeration is that the court erred by failing to give his three requests to charge with respect to the defense of justification. The first of these was based on the first sentence of OCGA § 16-3-20, which states: “The fact that a person’s conduct is justified is a defense to prosecution for any crime based on that conduct.” The second one, on use of force in defense of self, was drawn from OCGA § 16-3-21 (a), and the authority cited below was State v. Shepperd, 253 Ga. 321 (320 SE2d 154), aff’g Shepperd v. State, 170 Ga. App. 286 (316 SE2d 785) (1984). The third was on mutual combat, a defense which is mutually exclusive of self-defense, and was based on Simmons v. State, 172 Ga. App. 695, 696 (1) (324 SE2d 546) (1984).

The trial court explained that it refused to give the charges because there was no evidence as to how the altercation started except Penn’s admission that he threw the first punch. “A person is not justified in using force under . . . subsection (a) . . . if he . . . [w]as the aggressor or was engaged in a combat by agreement. . . .” OCGA § 16-3-21 (b) (3). The court’s analysis of the evidence was that there was none to support any possible foundation for justification “other than speculation.” Black’s Law Dictionary (6th ed. 1996) states that “[speculation, upon which neither court in nonjury case nor jurors in jury case may base verdict, is the art of theorizing about a matter as to which evidence is not sufficient for certain knowledge.” In this same vein, Black’s defines “conjecture” as “[a] slight degree of credence, arising from evidence too weak or too remote to cause belief. Supposition or surmise.....” Id. Neither speculation nor conjecture is a proper basis for factfinding, see Brooks v. State, 206 Ga. App. 485, 487 (1) (425 SE2d 911) (1992), and neither will support a reasonable inference. Taylor v. N. I. L., Inc., 221 Ga. App. 99, 100 (470 SE2d 491) (1996).

The charge of aggravated battery, on which Penn was sentenced, stemmed from his placing Sherice Nelms in a headlock and slamming her to the floor, causing a cervical fracture. The court cautioned the jury that the indictment was not evidence, and among its instructions it charged on presumption of innocence, the State’s burden of beyond a reasonable doubt, the meaning of “reasonable doubt,” and the duty of the jury to decide questions of credibility of witnesses and conflict in evidence. The court also instructed on the elements of each crime of which Penn was accused.

The evidence was undisputed Penn and Nelms lived together for several years in a stormy relationship in which they had four children, and that on this occasion there was a physical engagement from which Nelms emerged with a spinal cord injury which left her paralyzed below the chest area. Nelms was 5'5" to 5'6" tall and weighed 130 pounds; Penn was 6'5" tall and weighed between 200 to 205 pounds. He admitted that he was stronger, bigger, and weighed a lot more than Nelms.

Penn testified at trial and was his only witness. He admitted that the day before the incident for which he was on trial, he hit Nelms while they were in her rented car and she was driving, which caused a black eye that was still visible when the medics came for her the following day. After hitting her, he took the car. She was out searching for it the next morning when he finally returned. When she arrived home, he was sitting on the porch and, according-to him, “could have” been going through her purse, although he also denied it. She walked past him without saying anything. According to Penn, they were not on speaking terms because of the conflict the previous day.

The phone rang, Nelms answered it and informed Penn the call was for him. He told her to find out who it was and to say he would call back, and she complied. He was still angry with her at this point, so he stepped over his grandmother who was seated in her wheelchair in the front doorway and went into the house and took a swing at Nelms, which started the fight. His grandmother told him to leave Nelms alone and grabbed his arm.

Penn testified that “we had broke loose from each other and then she ran back into me again. We were locked up and somehow, I don’t know how we fell, but the way we fell, I had her and she was trying to get loose from me and we both just fell . . . she had me like around the waist and I had her around the head or something like that.” He was not trying to get away from her; in his words, he was “just fighting.” When they fell, he was on top. There had been physical fights before, he said. He denied that he intended to harm her on this occasion, but he admitted he intended to hit her the day before with his fist, and he did not deny that this resulted in a black eye.

As to the incident on trial, Penn admitted he was mad at her when he stepped over his grandmother to get to Nelms. He left the house rather than help Nelms after they fell to the floor, explaining that his grandmother instructed him to leave. He did not claim to have suffered any injury.

The court was not in error. Including reasonable inferences, there was no evidence whatsoever on which a finding of the justification of self-defense or the defense of mutual combat could be based. This case differs from Shepperd, supra, in which evidence of self-defense was presented. The same is true of Printup v. State, 217 Ga. App. 495, 496 (3) (458 SE2d 662) (1995), in which Printup’s testimony that the victim of his aggression “initiated the altercation by jumping on and hitting him and that he merely tried to push her away” provided some evidence supporting the charge. Even though Printup had not requested the charge, the court was compelled to give it under the principle repeated in Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). In Harrell v. State, 205 Ga. App. 378 (1) (422 SE2d 71) (1992), defendant’s testimony was that the victim was the initial aggressor. Koritta v. State, 263 Ga. 703 (438 SE2d 68) (1994), included evidence of action by defendant based on fear of imminent harm to self or children.

As to mutual combat, there was no evidence that “ ‘both parties [were] at fault and [were] willing to fight because of a sudden quarrel’ ” and had the intent of using deadly weapons against each other. Simmons, supra at 696 (1).

Wells v. State, 200 Ga. App. 104 (1) (407 SE2d 86) (1991), and Little v. State, 195 Ga. App. 130 (392 SE2d 896) (1990), involved other aspects of justification, but there again, defendants’ versions of the events supported the defense and, consequently, the charge.

Penn did not testify that Nelms started the physical confrontation. Furthermore, she was trying to get away when the nearly fatal fall occurred. This is not self-defense on his part nor mutual combat which would justify the aggravated assault.

Instead, Penn testified that he did not intend to harm the victim, although he did not deny that he intended to “connect with her face” when he first was swinging at her. He did intend to hit her the day before. The court charged that criminal intent is an essential element of any crime. Its rejection of Penn’s requested charge on accident is not enumerated as error.

Penn was not deprived of a fair trial by the court’s refusal to instruct the jury in accordance with his requested charges.

Judgment affirmed.

Birdsong, P. J.¡ and Blackburn, J, concur.

Decided February 12, 1997.

McClellan & Pangborn, John F. McClellan, Jr., for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.


text:
    A96A1801.
    CONDEELIS v. ABS ARTISTIC JEWELRY, INC.
    (481 SE2d 539)
   Judge Harold R. Banke.

George Condeelis sued ABS Artistic Jewelry, Inc. (“ABS”) for breach of contract. After the jury awarded Condeelis over $187,000, ABS successfully moved for judgment notwithstanding the verdict. Condeelis enumerates two errors challenging the decision to grant that motion.

The record shows that the parties entered into a five-year commission sales contract in April 1989 in which Condeelis agreed to sell and distribute ABS’ jewelry to consumers in the rent-to-own industry. In return, ABS agreed to pay Condeelis an “equal split of the gross profit (a minimum of a 10% split unless otherwise agreed upon) which ABS receives or [sic] as a result of Condeelis’ efforts and contacts.” The commissions were payable monthly, and ABS agreed to give Condeelis copies of all the invoices on which his commissions were based.

After working five months, Condeelis became concerned because he had not received any commissions. He wrote to ABS asking it to either comply with the contract or negotiate out of it. In days, ABS responded by sending a check for what it described as 50 percent of the profit. ABS also forwarded a number of invoices, noting some were unpaid. The record shows that ABS deducted a number of expenses, such as airfares and the cost of advertising and a fax machine, in determining the profit.

Condeelis subsequently received a second check from ABS which constituted a five percent commission off the top of total revenues. When Condeelis protested that he was entitled to 50 percent, ABS stated it could not afford to pay him more and he did not deserve more. Condeelis then commenced this action, alleging that ABS failed to pay the full amount of the commissions he earned and to forward him copies of the invoices. Held:

1. The trial court misapplied the law by granting the motion for j.n.o.v. for insufficient proof of damages. A j.n.o.v. is appropriate only when there is no evidentiary conflict on any material issue and the evidence adduced, with all reasonable deductions therefrom, demands a certain verdict. Peters v. Hyatt Legal Svcs., 220 Ga. App. 398, 401 (1) (b) (469 SE2d 481) (1996). The court must construe the evidence in the light most favorable to the prevailing party. Id. at 400.

The record shows that Condeelis calculated his damages for commissions not paid on contacts and sales at $201,417 by taking 15 percent of ABS’ total invoices to rent-to-own jewelry stores he contacted and subtracting the $14,000 he was paid. Condeelis arrived at the fifteen percent figure by calculating a thirty percent markup in the wholesale price and then dividing by two, which reflected his fifty percent interest. Condeelis entered into the record the invoices on which this figure was based. Both he and ABS’ president testified to the various contacts he had made for ABS.

Condeelis admitted that ABS’ president denied that a 30 percent markup was used, but testified that he considered that figure a normal markup in the jewelry business and that the figure was also based on information he received from an ABS employee who did not testify at trial. This hearsay testimony was admitted not for its truth, but to show on what he based his opinion. Viewing the evidence in its entirety in the light most favorable to Condeelis, we cannot say it demanded an outcome contrary to the jury’s award, which mirrored Condeelis’ calculations.

2. The trial court committed reversible error by confusing net profit with gross profit. Gross profit is the difference between sales and the cost of goods sold before allowance for operating expenses and income taxes. Black’s Law Dictionary, p. 633 (5th ed. 1979). Deducting all expenses gives net profit. Id. at p. 939; see City of Fitzgerald v. Newcomer, 162 Ga. App. 646, 648-649 (1) (291 SE2d 766) (1982). As noted, the contract called for Condeelis’ commissions to be calculated from gross- profit.

In its order granting the motion for j.n.o.v., the trial court held that to prove damages, Condeelis was required to establish the existence of profits by demonstrating that ABS’ sales on the relevant accounts exceeded its expenses. It observed that “ ‘[pjrofit is found by reducing revenues by the amount of all expenses.’ [Cit.]” (Emphasis in original.) The court clearly hinged its conclusion that Condeelis failed to prove his damages on the fact that he offered no proof of ABS’ expenses. However, in reaching this conclusion, the court cited no cases dealing with gross profit, despite the contract’s stipulation. See, e.g., Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107, 108 (2) (395 SE2d 592) (1990); Fidelity Nat. Bank v. Wood, 189 Ga. App. 109, 110 (2) (375 SE2d 228) (1988); Silco, Inc. v. Gwinnett Hosp. Auth., 151 Ga. App. 634, 635 (260 SE2d 758) (1979). Instead, the court relied on cases involving anticipated profit and net profit, where evidence of expenses was crucial. See Bass v. Carpenter, 152 Ga. App. 298 (1) (262 SE2d 578) (1979) (lost profit figured as estimated net profit); see Cobb & Eldridge, Ga. Law of Damages, § 2-8 (2d ed. 1984) (anticipated profits). Inasmuch as proof of expenses was unnecessary to prove gross profit and the jury properly used gross profit in calculating the damages, the j.n.o.v. was error. Consequently, the jury’s verdict must be reinstated. Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 422 (1) (249 SE2d 224) (1978).

Decided January 22, 1997

Reconsideration denied February 13, 1997

Smith, White, Sharma & Halpern, Jonathan Goldberg, for appellant.

Schreeder, Wheeler & Flint, Lynn C. Stewart, for appellee.

Judgment reversed.

Beasley and Blackburn, JJ., concur.


text:
    A96A2279.
    COOPER v. THE STATE.
    (481 SE2d 607)
   Beasley, Judge.

Cooper appeals the denial of his motion for discharge and acquittal on the ground the State failed to try him within the time period required by OCGA § 17-7-170. He was indicted by the Charlton County grand jury for aggravated assault, attempted rape, and burglary on April 27, 1995, and made a demand for speedy trial on June 11, 1995.

The Superior Court of Charlton County has two terms of court commencing on the fourth Monday in February and September respectively. OCGA § 15-6-3 (41) (C). Cooper’s demand was filed in the February term 1995. The State acknowledges Cooper was not tried in the remainder of the February term 1995 after his demand was filed, nor during the subsequent September term 1995. The parties agree that Cooper was incarcerated in Florida on unrelated charges on the date his demand for speedy trial was filed, and that through extradition proceedings, he was returned to the State of Georgia on August 28, 1995. There is no indication that a detainer was lodged against him in Florida, so the speedy trial remedies provided for in the Interstate Agreement on Detainers, OCGA § 42-6-20, were unavailable to Cooper. See State v. Collins, 201 Ga. App. 500 (411 SE2d 546) (1991).

To invoke the provisions of OCGA § 17-7-170, a defendant must move for an immediate trial and the court must accept the demand and note it on the court’s minutes. The State is then required to bring the defendant to trial either within that same term of court or no later than the end of the next term of court, if juries are impaneled and authorized to hear the particular case. If the State fails to bring the accused to trial by the end of the second term, he is entitled to dismissal of the indictment, so long as he is physically available to the court in which he demands trial. Trial courts of this state have no inherent authority to compel attendance of a defendant incarcerated outside this state pursuant to a sentence imposed by that sovereign. Hunt v. State, 147 Ga. App. 787, 788-789 (250 SE2d 517) (1978).

Decided February 13, 1997.

Michael B. Perry, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

This case is virtually identical to, and accordingly is controlled by, our decision in Mclver v. State, 205 Ga. App. 648 (423 SE2d 27) (1992): “It was incumbent upon [Cooper] to show by competent evidence both that a jury was impaneled and qualified to try him at the term when his demand was filed and that there was a jury impaneled and qualified to try him during the next succeeding term. In computing the time allowed by the two-term requirement, terms or remainders of terms during which no jury is impaneled are not counted.” (Citations and punctuation omitted.) Id. at 649.

Cooper was not available for trial prior to his release from custody by Florida authorities. “If the State had placed his case on the trial calendar, his presence for trial would not have been secured.” Id. Although he contends otherwise, Cooper has failed to show that juries were impaneled and qualified in Charlton County during the period in question, i.e., from the time he was extradited and returned from Florida until the end of the February 1995 term. The jury impaneled to try only civil cases during the September 1995 term would have constituted a “qualified” jury as to Cooper’s speedy trial demand, since OCGA § 17-7-170 (b) expressly allows civil terms of court to be disregarded in calculating whether two terms of court have passed only in misdemeanor but not in felony cases. Accordingly, the statutory time began to run at the beginning of the September 1995 term, and the State was not required to try Cooper’s case prior to the conclusion of the February 1996 term. Id. Cooper’s motion for discharge and acquittal was premature.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A2447.
    NELSON v. THE STATE.
    (481 SE2d 605)
   Beasley, Judge.

Nelson was convicted by a jury of driving an improperly equipped vehicle (OCGA § 40-8-7), driving under the influence of alcohol to the extent it was less safe for him to drive (OCGA § 40-6-391 (a) (1)), and driving a motor vehicle while having an alcohol concentration of 0.10 grams or more (OCGA § 40-6-391 (a) (4)). He was sentenced for violations of OCGA §§ 40-8-7 and 40-6-391 (a) (4).

Trooper Wiley testified that on February 1, 1996, he initiated a traffic stop of Nelson because he was driving a van with no taillights. After stopping Nelson, Wiley suspected that he was under the influence of alcohol because he could smell the distinct odor of an alcoholic beverage on his breath, and he exhibited other manifestations of it, such as slurred speech and unsteady gait. After Nelson admitted he had consumed an alcoholic beverage before driving, Wiley performed three field sobriety tests, the last of which involved blowing into an alco-sensor. Nelson did not perform the first two tests satisfactorily, and the alco-sensor registered the presence of alcohol on his breath. Wiley placed him under arrest and transported him to jail, where an intoximeter test was administered. The results of that test (.14 grams percent alcohol) were admitted in evidence.

Deputy Sheriff Lofton testified that on February 14, 1992, he initiated a traffic stop of Nelson after receiving a radio dispatch stating his vehicle had been weaving and moving slowly. When stopped, an odor of alcoholic beverage emanated from Nelson, his speech was slurred, his eyes were glassy, and he was unsteady on his feet. After an intoximeter test, he was arrested for DUI. Copies of the accusation and guilty plea were admitted in evidence. The test results (.22 grams percent alcohol) were shown through these documents and Lofton’s testimony.

At trial, Nelson admitted he was drunk when he was stopped by Lofton in 1992, but he maintained that he had not had too much to drink when stopped by Wiley in 1996.

1. Nelson complains of the court’s failure to suppress evidence concerning the field sobriety and intoximeter tests administered to him in 1996, in that he was not advised of his right not to incriminate himself under OCGA § 24-9-20 and Art. I, Sec. I, Par. XVI of the 1983 Georgia Constitution.

He filed a motion seeking to suppress these test results based on, among other things, the state grounds advanced in this enumeration. At the hearing on the motion, defense counsel argued only a federal ground, i.e., Miranda, and the court denied the motion upon determining that Miranda is inapplicable. Since Nelson abandoned the state grounds at the hearing, this enumeration presents nothing for review. See Henderson v. State, 206 Ga. App. 642, 644 (426 SE2d 264) (1992).

2. Nelson contends the court erred in allowing in evidence the 1992 DUI offense as a “similar transaction,” in that the prejudice against him outweighed the probative value. See Randall v. State, 207 Ga. App. 637, 638 (1) (428 SE2d 616) (1993).

At issue was whether Nelson was under the influence of alcohol to the extent it was less safe for him to drive. He testified that he had not been drinking excessively, unlike when he was arrested previously. Yet the observations of the arresting officers concerning the effects of the alcohol consumption on Nelson were virtually the same on both occasions. Balancing the probative value of the evidence of the other crime against its potentially prejudicial impact, an abuse of discretion is not shown. Johnson v. State, 195 Ga. App. 385, 386 (1) (393 SE2d 712) (1990).

3. Nelson maintains that the court erred in allowing Lofton to recite the 1992 intoximeter test results, on grounds of hearsay and the absence of any supporting evidence from the machine operator or the actual certified machine printout.

Nelson’s hearsay objection is not reviewed because this ground was not raised at trial. Turner v. State, 208 Ga. App. 728 (431 SE2d 727) (1993). The remaining ground, lacking argument or citation of authority, has been abandoned. Snyder v. State, 201 Ga. App. 66, 69 (8) (a) (410 SE2d 173) (1991).

4. The court’s denial of Nelson’s motion for directed verdict on the count charging him with driving under the influence of alcohol to the extent it was less safe for him to drive is moot. Nelson was not sentenced on this count. See Jones v. State, 213 Ga. App. 11, 12 (1) (444 SE2d 89) (1994).

5. Lastly, Nelson contends he was entitled to a directed verdict of acquittal on the charge of driving an improperly equipped vehicle. Despite his argument, the State was not required to prove guilty knowledge.

“The General Assembly has . . . enact[ed] certain ‘strict criminal liability’ motor vehicle safety statutes, which can be violated and enforced of necessity th[r]ough a criminal sanction without a showing of mens rea or guilty knowledge on the part of the violator.” (Emphasis omitted.) Queen v. State, 189 Ga. App. 161, 163 (1) (c) (375 SE2d 287) (1988). OCGA § 40-8-7 is such a strict criminal liability statute. See Coates v. State, 216 Ga. App. 93, 94 (4) (453 SE2d 35) (1995). The evidence was sufficient to support this conviction.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided February 13, 1997.

Jon W. McClure, for appellant.

Richard W. Shelton, Solicitor, for appellee.


text:
    A96A1720.
    ORREL et al. v. AMERADA HESS CORPORATION et al.
    (481 SE2d 624)
   Smith, Judge.

At approximately 2:14 p.m. October 27, 1991 Penny and Marvin Orrel stopped their car at a service station owned and operated by Amerada Hess Corporation (Hess) to purchase gasoline. As Ms. Orrel walked from the passenger side of the car toward the gasoline pump, she allegedly slipped and fell on an oily substance. She and her husband brought this action against Hess alleging that her injuries were caused by Hess’s negligence in failing to maintain the premises in a safe condition. The trial court granted summary judgment to Hess on the basis that Hess did not have actual or constructive knowledge of the substance. This appeal ensued. We note that the incident occurred in Florida. Consequently, the substantive issues in this case are governed by Florida law, while the procedural issues are governed by Georgia law. Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765 (417 SE2d 671) (1992).

1. The Orrels contend that fact issues exist as to whether Hess had actual or constructive knowledge of the existence of the oily substance.

In Florida, an owner of land has a duty to invitees to keep the owner’s property reasonably safe and to use reasonable care in protecting invitees from dangerous conditions of which the owner is or should be aware. Winn-Dixie Stores v. Marcotte, 553 S2d 213 (Fla. App. 1989); KMart Corp. v. Dwyer, 656 S2d 1340, 1341 (Fla. App. 1995). To prevail on a premises liability claim, a plaintiff generally must prove that the owner had actual or constructive notice of a defect. Skipper v. Barnes Supermarket, 573 S2d 411, 413 (Fla. App. 1991); Marcotte, supra. Constructive knowledge may be inferred from either the amount of time the substance was present or by proof that the condition occurred so often that the owner should have known of its existence. Schaap v. Publix Supermarkets, 579 S2d 831, 834 (Fla. App. 1991).

The evidence presented in this case showed that Ms. Orrel first saw the substance after she fell. She described it as being clear and approximately 24 inches in diameter. It appeared to her to be “oil with water on top.” She acknowledged that she could have seen the oil had she looked at the pavement and that she was not looking at the pavement before she fell. No employees were in the vicinity of the pump when the Orrels arrived at the gas station. Ms. Orrel acknowledged that the oil was not visible from inside the Hess store because the pad on which the gas pump sat obscured it. She did not know how the substance got onto the pavement or how long it was present before she fell. Although she saw a “slide mark” where her own foot slid in the substance, she could not recall any other marks in the substance.

Mr. Orrel similarly could not specify the length of time the substance was on the pavement. He did state that a Hess employee came outside after Ms. Orrel fell, looked at the substance, and stated, “Hm, boat oil.” He added that no vehicles, including boats, were present at the station as he and his wife approached, entered, and parked. In his original deposition, he acknowledged that he had no evidence that Hess employees knew about the presence of the oil before Ms. Orrel fell. In a subsequent deposition, Mr. Orrel stated that the attendant said, “That’s boat oil from a boat that was here.” In addition to producing evidence of cleaning and inspection procedures with regard to the entire premises, Hess introduced evidence that a Hess employee was in the area around 2:00 p.m. and did not see oil on the pavement.

The Orrels failed to show that Hess had actual knowledge of the oil. Contrary to the Orrels’ contention, the statement by a Hess employee, whether it was “Hm, boat oil” or “That’s boat oil from a boat that was here,” does not show Hess’s knowledge of the oil’s presence before Ms. Orrel fell. At best, the statement shows that the employee was able to identify the substance as boat oil after Ms. Orrel fell, not that he knew before she fell that an oily substance existed on the pavement or that the boat allegedly present leaked oil.

The record is also devoid of evidence that Hess had constructive knowledge of a defect. No evidence was presented that dangerous conditions existed with such frequency that Hess was charged with knowledge of their presence. In fact, the Orrels testified that they visited that particular service station before and after the incident and found it to be clean. More importantly, the evidence did not show that the condition existed for a length of time that should have resulted in its discovery upon reasonable inspection.

The Orrels argue that fact issues exist concerning the reasonableness of Hess’s inspection and cleaning procedures. We need not reach this issue in light of undisputed testimony that an employee was in the area at approximately 2:00 p.m. and the oily substance was not present. At most, the substance was present only 14 minutes before the fall occurred. Additionally, neither Mr. nor Ms. Orrel could testify on deposition as to the length of time the substance was present before Ms. Orrel fell, and “the length of time the dangerous condition existed prior to the injury is an indispensable factor in determining liability.” Wal-Mart Stores v. King, 592 S2d 705, 707 (Fla. App. 1991). Mr. Orrel’s own testimony that he saw no vehicle or boat activity for approximately two minutes and forty seconds prior to the fall indicates the existence of the alleged substance for only that amount of time. Even construing this evidence in favor of the Orrels, they have not shown that a reasonable inspection would have revealed the defect. To hold otherwise, despite evidence showing that an employee was in the area less than 15 minutes before the incident occurred, would render Hess an insurer of its property, contrary to the law of Florida. Marcotte, supra at 214 (property owner not insurer of safety of invitees).

Other than Ms. Orrel’s skid marks, no evidence was presented of smudge marks, streaks, foot prints, or other signs of age indicating that the oily substance “was there for a sufficient period of time for [Hess] to be charged with constructive knowledge of a potentially dangerous condition.” Silver Springs Moose Lodge v. Orman, 631 S2d 1119, 1121 (Fla. App. 1994); compare Winn-Dixie Stores v. Guenther, 395 S2d 244 (Fla. App. 1981) (dirty liquid with scuff and tracks through it imputed constructive knowledge to grocery store). The Orrels’ failure to show that Hess had actual or constructive knowledge of the defect precluded recovery, and the trial court did not err in granting summary judgment to Hess.

2. The Orrels contend that summary judgment was prematurely granted and that their due process rights were violated because they did not receive notice of the hearing on Hess’s motion for summary judgment. When it filed the motion on April 25, 1995, Hess also requested oral argument. On December 18, 1995, a notice was published in the Fulton County Daily Report that oral argument on the motion was scheduled for January 23, 1996. Counsel for the Orrels, however, was not served with notice of the hearing. Defense counsel appeared for the hearing, but the Orrels’ attorney did not. The trial court did not conduct a hearing since the Orrels’ lawyer was not present but decided the motion on the briefs and the record. The trial court allowed Hess to submit a supplemental brief, which was filed January 23, 1995, the day the hearing was scheduled.

It is true that publication is not sufficient to provide notice of a motion hearing; such notice must be served. Goodwin v. Richmond, 182 Ga. App. 745, 746 (2) (356 SE2d 888) (1987). Failure to provide legal notice of a motion for summary judgment hearing deprives the opponent of the statutory right to file opposing affidavits up to one day before the hearing. Id. at 746. See also Pyramid Constr. Co. v. Star Mfg. Co., 195 Ga. App. 644, 645 (394 SE2d 598) (1990). Had the trial court conducted a hearing in this case, we would be compelled to reverse on this ground.

Failure to serve notice of the hearing was harmless here, though, because the trial court did not conduct a hearing; instead, it decided the motion on briefs. Counsel for the Orrels claims she knew nothing about the hearing until she received defense counsel’s supplemental brief, which mentioned her failure to appear. She also claims that because she did not appear for the January 23 hearing, the trial court refused to allow her to respond to the supplemental brief. Counsel mischaracterizes the record. Her statements in her own affidavit that the trial court refused to allow her to respond are inadmissible as hearsay and further are not supported by any evidence, such as a written request to respond, an order denying the request, or a transcript. We note that from the time she received the supplemental brief on January 26, until the trial court’s order granting summary judgment was entered on February 29, the Orrels’ counsel did not object to the lack of notice or take any other action in that regard. Only after the trial court granted the motion did the Orrels’ attorney raise any issue concerning the hearing.

3. The Orrels also contend the trial court erroneously considered two affidavits filed by Hess less than thirty days before the scheduled hearing on January 23. There is no dispute that counsel for the Orrels received copies of two affidavits on January 22, one in the mail and one via facsimile, which were filed on January 19 and January 22, 1996, respectively. Affidavits relied upon in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. Corry v. Robinson, 207 Ga. App. 167, 169-170 (2) (427 SE2d 507) (1993). Had the hearing occurred on January 23, these affidavits would have been untimely, and consideration of them would have been impermissible. But the hearing was cancelled and never occurred, and the trial court’s order was entered February 29, more than 30 days after Hess’s affidavits were filed on January 22. The Orrels consequently were not denied a “fair opportunity to contradict the supporting material relied upon by [Hess],” Porter Coatings v. Stein Steel &c. Co., 247 Ga. 631, 632 (278 SE2d 377) (1981), and the trial court did not err in considering the affidavits. See generally McIntosh v. McLendon, 162 Ga. App. 220 (1) (290 SE2d 157) (1982) (supporting affidavits must be filed 30 days before hearing, or 30 days before summary judgment granted, if no hearing held).

Finally, the record belies any contention by the Orrels’ attorney that she was not permitted to respond to the affidavits because she did not appear at the hearing. Counsel did respond by brief to the affidavits, arguing that the evidence was conflicting and that summary judgment therefore was improper. Moreover, from the time the last affidavit was filed on January 22 until the trial court entered its order on February 29, counsel had more than 30 days to respond, but she did not move to strike the affidavits, nor did she attempt to submit additional evidence refuting the affidavits submitted by Hess. The record does not show that she requested a hearing on the motion or a continuance so that she could respond. We find no merit in this argument.

Decided February 14, 1997

Brennan, Harris & Rominger, Richard A. Rominger, Julie D. Majer, for appellants.

Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, Beth S. Reeves, for appellees.

Judgment affirmed.

Andrews, C. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A1738.
    KING INDUSTRIAL REALTY, INC. v. RICH.
    (481 SE2d 861)
   Smith, Judge.

Jack Rich brought suit against King Industrial Realty, Inc., an industrial real estate brokerage firm where he worked as an agent until his termination in 1989. Rich’s complaint alleged breach of his agency contract in several respects and sought reformation of the contract to correct a typographical error pertaining to bonuses. Rich also sought costs and attorney fees on the ground that King Industrial acted in bad faith and was stubbornly litigious. Cross-motions for summary judgment were filed, and this appeal by King Industrial is from several of the trial court’s rulings on the motions. We affirm.

As an agent, Rich’s relationship with King Industrial was governed by three written documents: an agency contract, a company policy, and a 1986 memorandum regarding the calculation of bonuses. The agency contract, executed in 1984, had an initial term of 12 months, and it was automatically renewed at the end of each succeeding 12-month period. The contract further provided for termination for cause at any time upon seven days’ notice. Under the contract, Rich was compensated for his services by a commission and bonuses: he would receive 50 percent of the commission paid to King Industrial on the sale or lease of property less any listing fees or commissions paid to outside agents. Commissions were not to end upon Rich’s death or termination, but they were to be reduced from 50 percent to 40 percent. A year-end bonus was payable if certain conditions were met: At the end of each year, the agent received a bonus of 60 percent of the amount by which one-half the agent’s annual commissions exceeded a sum comprised of his “desk costs” plus a “management fee” of $15,000.

King Industrial appeals from the trial court’s grant of Rich’s motion as to two counts of Rich’s complaint and from the trial court’s denial of its own motion for summary judgment on Rich’s claim for costs and attorney fees for bad faith and stubborn litigiousness.

1. Rich’s motion to dismiss the appeal is denied.

2. King Industrial contends the trial court erred in ruling that King failed to give Rich seven days’ notice, which was required by the agency contract. We do not agree.

The company policy provision does not mention a specific time period for notice of termination, but provides that the relationship may be terminated “upon notice.” The more specific provision in the agency contract specifies the time period within which notice must be given before termination. Seven days’ notice is required. Contrary to King Industrial’s argument, these provisions regarding notice do not conflict and thereby create a jury issue. The provision in the company policy is simply general, while the provision in the agency contract is more detailed.

King Industrial admits that seven days’ notice was not actually given. It argues, however, that Rich actually had much longer notice of his termination. Rich was terminated for cause, and over a considerable period of time before he was terminated, he had received various warnings, reprimands, and even a suspension because of his behavior. But these precursors of his termination did not constitute notice of termination in compliance with the contract, as urged by King. They were warnings, perhaps, that his behavior was unacceptable, and that if it continued he could be terminated; they were not notice that he actually was being terminated.

3. King Industrial asserts the trial court erred in ruling that it breached the agency contract by reducing Rich’s commissions paid after he was terminated. We do not agree. Because King Industrial breached the contract itself by failing to give the required seven days’ notice before terminating Rich, King Industrial could not invoke the commission reduction provision of the same contract.

In Burritt v. Media Mktg. Svcs., 204 Ga. App. 848-850 (3) (420 SE2d 792) (1992), relied upon by the trial court, this Court held that an employer who terminated a commissioned salesperson without the seven-day written notice to which she was contractually entitled committed an actionable breach of contract. Id. at 848 (2). We characterized the failure to pay earned commissions as a forfeiture and cited the principle that under Georgia law, forfeitures are not favored. We held that the employer breached the contract in a fundamental respect by failing to give the required notice, and it therefore had no right to insist upon another provision in the contract whereby the employee’s already earned commissions were forfeited on any sales for which payment was not received within ten days after discharge. Id. at 848-850 (3). The principles enunciated in Burritt are equally applicable here.

We find no merit in any of the several arguments King Industrial makes in support of its contention that the trial court erred in its ruling on this issue or in its reliance upon Burritt. King Industrial argues that the trial court erred in construing the notice provision as a condition subsequent and by concluding that reducing the commissions worked a forfeiture. Georgia law favors conditions subsequent rather than precedent and favors remediation by damages rather than forfeiture. Fulton County v. Collum Properties, 193 Ga. App. 774, 775 (388 SE2d 916) (1989). Regardless of whether the commission reduction provision is a condition subsequent or a covenant of the contract, reducing Rich’s already earned commissions is obviously a forfeiture. Although factual differences exist between Burritt and this case, it is immaterial that the provision in this case, unlike that in Burritt, also provides for payment of a portion of the earned commissions. It also provides for the forfeiture of another portion. Although it may be true, as argued by King Industrial, that certain administrative expenses were associated with leases generating residual commissions, those expenses existed regardless of whether Rich was terminated.

Finally, even if we accept King Industrial’s arguments involving the agency contract, summary judgment on this issue would have been right for a different reason. The Company Policy document provides that Rich’s “association with [King Industrial] may be terminated by either party at any time upon notice given to the other; but the rights of the parties to any fees which accrued prior to' said notice shall not be divested by the termination of this arrangement.” This provision must be construed against King Industrial, as the drafter. OCGA § 13-2-2 (5). Construing it against the drafter and against forfeiture, it is apparent that the trial court’s ruling is correct. A ruling right for any reason must be affirmed. Thornton v. Ware County Hosp. Auth., 215 Ga. App. 276, 280 (450 SE2d 260) (1994).

4. King Industrial raised the defense of accord and satisfaction below as to Rich’s allegation that it breached the agency contract by reducing his commissions and by failing to pay him certain bonuses. The trial court entered summary judgment in favor of Rich without addressing the accord and satisfaction defense. King Industrial argues that the entry of summary judgment on these counts was an implicit ruling that no such accord and satisfaction existed and that this ruling was therefore error.

The record shows that King Industrial informed Rich by memorandum in July 1989 that he was terminated and that reduced commissions would be paid starting in September 1989. In a responding memorandum, Rich disputed the reduction of his commissions and stated his understanding that he was also entitled to earned bonuses. King Industrial again responded, quoting the applicable provisions of the agency contract in support of its position. Rich made no further reply, and he eventually negotiated the reduced commission checks.

King Industrial argues that this exchange of memoranda, particularly Rich’s failure to respond again to the final King memorandum, indicates that Rich had come to agree with King Industrial’s position, and that Rich’s eventual negotiation of the reduced checks demonstrates that an accord and satisfaction was effectuated. We do not agree that an accord and satisfaction existed here, and we affirm the trial court’s ruling.

As with any contract, establishment of an accord and satisfaction requires a showing that a meeting of the minds took place. If no agreement exists to settle all matters in dispute, no accord and satisfaction results. Derosa v. Shiah, 205 Ga. App. 106, 108 (421 SE2d 718) (1992). We cannot agree with King Industrial that either Rich’s acceptance of the reduced commission checks or the exchange of memoranda indicates in any way that the parties agreed to settle their dispute about the reduced commissions or Rich’s entitlement to the bonus funds; the only agreement evidenced is one to disagree.

OCGA § 13-4-103 (b) provides that acceptance of a check marked “payment in full” or other equivalent condition will constitute an accord and satisfaction if a bona fide dispute exists as to the amount due or the payment is made pursuant to an independent agreement that the payment will satisfy the debt in question. The statute does not provide, however, and we have found no case that provides, that the mere acceptance of a check unmarked with conditional language will itself suffice to constitute an accord and satisfaction. Generally, where the evidence is in conflict the issue of whether an accord and satisfaction existed is one for a jury. Derosa, supra, for instance, was a dispute between employer and former employee regarding severance pay. In Derosa, some evidence was presented that the employee had agreed that the employer’s offer was “fair.” Id. at 108. We held that this evidence did not itself show a meeting of minds as to all disputed issues, but when coupled with the employee’s acceptance of the offered severance checks, it was sufficient to create a jury issue as to the existence of an accord and satisfaction. Id. at 108-109 (1). In this case, however, absolutely no evidence was presented that even suggests an accord and satisfaction, other than acceptance of the reduced checks, and no indication appears that the checks were accepted as payment in full.

King Industrial’s reliance upon Salvatori Corp. v. Rubin, 159 Ga. App. 369, 373 (3) (283 SE2d 326) (1981), is misplaced. The principle derived from Salvatori Corp. is that when a contract is ambiguous, the meaning placed on it by one party and known to be thus understood by the other party at the time is held to be its true meaning. That principle may not be used to establish an accord and satisfaction, and no contractual ambiguity is in issue here.

5. King Industrial asserts the trial court erred in ruling that Rich was entitled to bonuses for both 1988 and 1989.

(a) No dispute exists that the 1988 bonus was owed. King Industrial alleged, however, that Rich’s claim for a bonus for that year was time-barred. Rich’s claim was brought outside the four-year statute of limitation for oral contracts, see OCGA §§ 9-3-25; 9-3-26, but well within the six-year statute of limitation applicable to simple contracts in writing. OCGA § 9-3-24. The trial court held that the six-year statute of limitation applied and that Rich’s claim was not time-barred.

King Industrial argues that this ruling was error because the writing covering the bonus policy is incomplete and certain terms are supplied by an oral agreement. Contracts that are partly written and partly in parol must be considered as in parol and are governed by the four-year statute of limitation applicable to oral contracts. Plumlee v. Davis, 221 Ga. App. 848, 852-853 (3) (473 SE2d 510) (1996). According to King Industrial, the timeliness of Rich’s claim for the 1988 bonus must be measured against the four-year statute of limitation.

First, we do not agree that the bonus memorandum is “incomplete.” The fact that a typographical error resulted in the wrong percentage being inserted into the writing and that it was corrected by agreement of the parties does not make the writing an oral contract. Further, the fact that the document may be ambiguous as to two fine points does not render it an oral contract, as urged by King Industrial; it is simply a written contract subject to judicial construction of any ambiguities. Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243 (296 SE2d 788) (1982), cited by King, is distinguished on its facts. In Frates, the letter agreement expressly provided that it did not constitute the entire agreement between the parties, and it detailed only a small portion of the entire agreement. Id. at 246 (1). In the bonus agreement in issue, the writing is detailed and encompassed most, if not all, of the agreement between the parties.

Second, King Industrial routinely paid the bonuses in issue during the latter part of the year following the bonus year. Rich’s “desk costs” for 1988 were not determined until July 1989, and they were needed to calculate the 1988 bonus. The contract was not breached in -this respect, therefore, until after July 1989. Even if we found an oral contract, the four-year statute of limitation had not expired when this action was filed in July 1993.

(b) The trial court determined that Rich was entitled to bonuses after his termination, concluding that “[t]here is no indication in the bonus memorandum or any other agreement between the parties that the payment of any bonus earned is predicated upon [Rich] being an active agent with [Kang Industrial]. The bonus memorandum addresses King Industrial’s “year-end bonus policy” and contains the following language: “If, at the end of the year, the [commission] agent receives is more than his prorata share of the desk cost + a $15,000 annual management fee, then agent will be reimbursed a figure computed by multiplying [60%] X the amount above desk cost + $15,000.00.” King Industrial maintains that this language reflects an intention to pay bonuses only to agents who were with it at the end of the year.

We agree with the trial court and with Rich that the language does not support this conclusion. Although their meaning may be ambiguous, we conclude that the terms “year-end” and “end of the year” do not represent conditions or qualifications for a bonus, but merely identify the time at which the bonuses would be calculated. The bonus is simply additional commission; it is calculated based upon prior sales and leases. It has already been earned by the time it is calculated. The memorandum does not expressly provide for a forfeiture of that bonus if the agent is not with King at the time it is calculated. And we may not imply such a forfeiture. “[T]he settled public policy of this state is that forfeitures are not favored. While forfeitures are not unlawful, the law does not favor them, and all ambiguities in a contract are to be resolved against their existence.” (Citations and punctuation omitted.) APAC-Georgia, Inc. v. Dept. of Transp., 221 Ga. App. 604, 605 (1) (472 SE2d 97) (1996).

6. King Industrial challenges the trial court’s denial of its motion for summary judgment on Rich’s claim for litigation expenses pursuant to OCGA § 13-6-11. The trial court ruled that at the very least, a jury question exists with respect to King Industrial’s liability for costs and attorney fees attributable to its failure to pay Rich’s 1988 bonus.

King Industrial’s argument that the trial court erred in so ruling because in fact Rich was not entitled to the 1988 bonus is rendered moot by our holdings in Division 4, supra. King Industrial also argues that the trial court should have ruled as a matter of law that none of its actions exhibited bad faith or stubborn litigiousness.

OCGA § 13-6-11 allows recovery of litigation expenses when a defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. With respect to bad faith, the elements of bad faith that will support a claim for expenses of litigation must relate to King’s acts in the transaction itself prior to this litigation, not to the motive with which it defended the litigation. Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 200 (3) (450 SE2d 427) (1994). A recovery for stubborn litigiousness or causing unnecessary trouble and expense is authorized if no bona fide controversy or dispute existed as to the defendant’s liability. Whether such a controversy existed is a question for the jury. Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (3) (466 SE2d 27) (1995).

It is undisputed that King Industrial acknowledged during this litigation that it had not paid Rich a 1988 bonus, despite its prior insistence that the bonus had been paid. Although Rich did not demand payment of this bonus before filing this action, a dispute existed about his entitlement to the bonus and whether it had been paid. We do not agree with King Industrial, however, that the dispute was bona fide. King Industrial’s position, until faced with Rich’s motion for summary judgment on this issue, was that the bonus had been paid. King Industrial admitted, in response to Rich’s motion for summary judgment, “[ajfter an exhaustive audit and analysis” of its own financial records, that Rich had not been paid the 1988 bonus, but it continued to dispute the amount due and the timeliness of the claim.

Based upon this evidence, we agree with the trial court that a jury issue exists as to a recovery of costs and expenses under OCGA § 13-6-11, particularly — although not necessarily exclusively — with regard to the 1988 bonus.

Judgment affirmed.

Andrews, C. J, and Senior Appellate Judge Harold R. Banke concur.

Decided February 14, 1997.

Schreeder, Wheeler & Flint, Steven G. Hill, James C. Morton, for appellant.

Morris, Manning & Martin, Lewis E. Hassett, Hassett, Cohen, Beitchman & Goldstein, Robert W. Hassett, for appellee.

       “Desk costs” at King Industrial are the agent’s share of operating expenses. The “management fee” is simply a flat fee imposed by King Industrial that presumably covers expertise and good will.

       The parties agreed that the contract should be reformed by correcting the typographical error, and that count of the complaint is not in issue here. The trial court also granted partial summary judgment to King as to its refusal to pay Rich a commission on the sale of a particular piece of property. Rich does not appeal from that ruling. Although King claims in its brief that it is appealing from the trial court’s denial of its motion for summary judgment on Rich’s claims for refund of his contributions to King’s “Risk Management Fund,” it is not enumerated as error, and King’s briefs include no argument or citations of authority on this ruling.

       Out of an abundance of caution, Ring enumerates as error a possible ruling by the trial court that post-termination bonuses should be calculated without deducting desk costs and the management fee. We do not read the trial court’s order as so ruling and therefore do not address this enumeration.

       The percentage in the memorandum was inadvertently stated as 28%. King Industrial agreed that this was a typographical error.