author: Smith, Judge.

text:
    A96A0966.
    ROBINSON v. KROGER COMPANY.
    (476 SE2d 29)
   Smith, Judge.

This premises liability action arose after Henrietta Robinson allegedly slipped and fell on a green substance in the produce section at a Kroger store. The trial court granted summary judgment to Kroger on the ground that Robinson failed to exercise ordinary care for her own safety, and she appeals.

Viewed in favor of Robinson, the respondent on the summary judgment motion, evidence was presented that after walking between two produce bins, she rounded the corner of one of the bins and slipped and fell on a green substance. She did not see the substance before she fell. Although Robinson testified that she was looking down, she also testified that while walking around the produce bin, she could not see the floor where the substance may have been located. According to Robinson, her vision was obstructed by the bin, and she could not see around the corner of the island as she walked around the angle; she “did not have a good view to where I was going when I turned” because of an overhang on the island. She nonetheless turned the corner and walked into an area just previously beyond her vision. After turning the corner, she took “a step or two” and fell. Contrary to Robinson’s contention in her brief that the substance was hidden by the overhang, Robinson admitted in her deposition that the substance was not underneath the overhang. She added in her deposition that if the substance had been under the overhang, she would not have stepped on it.

To prevail in a case such as this, a plaintiff must prove that the proprietor had actual or constructive knowledge of the substance and that he or she did not have knowledge of the existence of the substance or was prevented by the proprietor from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). An invitee is charged with exercising “ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Id.

Here, no evidence was presented that Kroger was responsible for Robinson’s failure to use her eyesight to see the alleged green substance on the floor near the island. See Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). Without waiting until she had a clear view of the area into which she proceeded, Robinson according to her own testimony made a “sharp turn” around the corner of the produce island. She did not first discern whether it was safe to walk around the island but instead placed her “foot at a location [she] could not see.” By walking into an area she could not see rather than choosing an unobscured pathway around the corner of the island, Robinson “in effect, elected to walk in the dark.” Meriwether Mem. Hosp. Auth. v. Gresham, 202 Ga. App. 535, 537 (1) (414 SE2d 694) (1992). Although the overhang on the island may have obstructed Robinson’s eyesight temporarily, she could have avoided stepping where she could not see. This is not a case in which an invitee fell while being distracted by a store employee. See J. H. Harvey Co. v. Edwards, 219 Ga. App. 697 (466 SE2d 246) (1995); Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994). In fact, Robinson admitted that she was not distracted.

Citing Bodenheimer v. Southern Bell Tel. &c. Co., 209 Ga. App. 248 (433 SE2d 75) (1993), Robinson contends that she should not have been “expected to stop at the corner of the bin, peer around the corner to check for small hidden dangers, and to proceed around the corner only after first determining that there is nothing there.” In Bodenheimer, plaintiff tripped and fell while walking backward and stepping away from a pay telephone. This Court reversed the grant of summary judgment to defendants, finding that plaintiff backed away from the phone booth “in the normal and expected manner of one facing a telephone” and that “it is generally required that one back away from a pay telephone.” Id. at 250.

We are not bound by Bodenheimer. That opinion is not binding precedent because only two judges on a three-judge panel concurred fully in the opinion. See Court of Appeals Rule 33 (a). Moreover, this case is distinguished factually. Robinson was not using a facility, such as a telephone booth, that required her to back away but was walking forward. We recognize that “[ljooking continuously, without intermission, for defects in a floor is not required in all circumstances.” (Citation and punctuation omitted.) Fletcher v. Family Center, 169 Ga. App. 376, 377 (2) (312 SE2d 856) (1983). Nonetheless, it is well established that an invitee must use his or her eyes in a reasonable manner to discern the presence of a dangerous condition. Alterman Foods, supra; Baker v. Winn Dixie Stores, 219 Ga. App. 513, 514 (465 SE2d 710) (1995). The fact that Robinson was walking around the corner of a vegetable bin did not obviate her duty to look where she was going before she walked into an area previously unobserved by her. See Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993).

We note some conflict in the record as to Kroger’s knowledge of the foreign substance. One Kroger employee stated that on the date Robinson fell, he adhered to his customary practice of inspecting and sweeping the produce department every half-hour and that he did so approximately 15 minutes before he saw Robinson “rolling” on the floor. According to this employee, immediately after he swept the produce department, no foreign substance or material was on the floor of the produce department, including the place where Robinson fell. Another employee, though, stated that the area had not been swept for at least an hour prior to Robinson’s fall.

Even assuming that Kroger had knowledge of the substance, it was Robinson’s “burden to come forward with specific evidence that [Kroger’s] knowledge of the peril was superior, for that is the true ground of the proprietor’s liability. When the perilous condition is known to the proprietor and not known to the person injured, a recovery is permitted, [cit.], but the person injured is not excused from the duty to exercise ordinary care for her own safety.” (Emphasis in original.) Id. at 124. Here, Robinson clearly failed to use her senses in a reasonable manner, as she walked into a previously unobserved area. As in Minor, “[w]hatever appellee’s knowledge of the peril, there is no genuine issue that the cause of [Robinson’s] fall was her own failure to exercise ordinary care.” Id. at 125. The trial court did not err in granting Kroger’s motion for summary judgment.

Decided August 29, 1996

Reconsideration denied September 11, 1996

Fred J. Rushing, Jr., for appellant.

Webb, Carlock, Copeland, Semler & Stair, Albert M. Yates III, Douglas A. Wilde, James R. Doyle II, for appellee.

Judgment affirmed.

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

       One of Kroger’s employees testified that he saw Robinson brace herself on one of the bins, lower herself to her knees, and “start rolling.”


source: Caselaw Access Project

license: Public Domain

text:
    A96A1094.
    EID v. GREAT ATLANTIC & PACIFIC TEA COMPANY.
    (476 SE2d 25)
   Smith, Judge.

Walter Eid brought this action after he allegedly slipped and fell while inside appellee A & P grocery store. He appeals the trial court’s grant of summary judgment to A & P.

Construed in Eid’s favor, evidence was presented that he slipped and fell while he was walking and looking toward the section of the produce department containing carrots. He testified that he was not looking down at the floor as he walked in the produce section because “[w]hen you walk in the store, you don’t look on the floor.” He acknowledged that nothing kept him from looking at the floor and asked, ‘Why would anybody want to look at the floor?” He never observed the object on which he allegedly slipped but claimed that his uncle, Peters, told him that he slipped on lettuce.

Peters testified that after Eid fell, he observed several pieces of “dark” or “brown” lettuce in the vicinity of the fall that looked like they had “been there for awhile.” Most of the lettuce pieces were four or five inches in diameter, although smaller pieces were also present. According to Peters, the lettuce was not slimy and looked like someone had stepped on it. Peters testified unequivocally that the lettuce was visible from a standing position and that the dark color of the lettuce contrasted with the white floor.

Decided August 29, 1996

Reconsideration denied September 11, 1996

Robert S. Windholz, for appellant.

Carter & Ansley, Burke B. Johnson, Thomas E. Magill, for appellee.

1. To prevail in a case such as this, a plaintiff must prove both that the proprietor had actual or constructive knowledge of the substance and that he or she did not have knowledge of the existence of the substance or was prevented by the proprietor from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). As to the second requirement set out in Alterman Foods, an invitee must exercise ordinary care to avoid a hazard “after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Id.; see also Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993).

Eid’s own testimony established that he failed to use his sense of sight in a reasonable manner amounting to ordinary care. Nothing obstructed his view, and he admitted that he was not looking at the floor as he walked. In fact, he wondered aloud why anyone would look down at the floor as he walked. Although Eid testified that had he looked at the floor he probably could- not have seen the lettuce because it would have blended with the color of the floor, this speculation is in direct conflict with the direct and unequivocal testimony of Peters that the lettuce was visible from a standing position and was darker than the light-colored floor. As in Minor, whatever the proprietor’s knowledge of the substance on the floor, “there is no genuine issue that the cause of [Eid’s] fall was [his] own failure to exercise ordinary care.” Id. at 125. See also Colevins v. Federated Dept. Stores, 213 Ga. App. 49 (443 SE2d 871) (1994). The trial court correctly granted A & P’s motion for summary judgment. See Baker v. Winn Dixie Stores, 219 Ga. App. 513 (465 SE2d 710) (1995).

2. In light of the holding in Division 1, we need not consider Eid’s other contentions.

Judgment affirmed.

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


text:
    A96A0927.
    CITY OF BUCHANAN v. POPE et al.
    (476 SE2d 53)
   Smith, Judge.

Jimmy V. Pope served as the Chief of Police of the City of Buchanan, Georgia for approximately 21 years. In November 1993, the Mayor and Council of the City voted not to renew Pope’s term of employment under the city charter. The City then brought this declaratory judgment action seeking clarification of a potential conflict between Pope’s employment status under the charter and the provisions of a personnel manual drafted by Pope for the police department and adopted by the City.

Pope answered and counterclaimed for defamation and intentional infliction of emotional distress. He also filed a separate civil action reasserting the claims made in his counterclaim and asserting claims of due process and equal protection under 42 USC § 1983, contending his employment with the City had been wrongfully terminated. His wife brought a claim for loss of consortium. The trial court dismissed the claim for declaratory judgment, consolidated the actions, and realigned the parties to show the Popes as plaintiffs and the City as defendant.

Pope claims a right of continuing employment constituting a property interest under the terms of the police department “policies and procedures” manual. Pope relies on the provisions found under the general heading of “S.O.P. [Standard Operating Procedures] DISCIPLINE.” Item (1) (D), “Dismissal,” provides: “No permanent employee may be dismissed except for cause. The Chief of Police may recommend dismissal to the City Council, but only the City Council may dismiss a permanent employee. A permanent [employee] being dismissed must be notified of the cause.” Pope contends, in essence, that the manual grants him permanent tenure in his employment during good behavior, unless he chooses to resign.

The City contends that it did not terminate Pope, but simply determined that his 12-month term of employment would not be renewed when it expired. The City relies on Section 16 of the city charter: “[S]aid council shall be authorized to employ such police officers as they may see fit for the proper police protection of said city, which officers shall be known and designated as marshals, or marshals and deputy marshals as may be provided by said ordinance, and who shall be elected for such term not exceeding twelve months as the council may see fit, and who shall receive such compensation as may be fixed by the council, and who shall be directly responsible and accountable to the mayor of said city and subject to his orders. . . .” (Emphasis supplied.) Ga. Laws 1908, pp. 468, 475. According to the City, the provisions of the manual by their terms apply only to dismissal for cause, not to failure to renew the term of a city officer.

The trial court found that the police department manual provisions were “adopted . . . as a supplement to [the City’s] employment provisions under § 16” and “evince sufficient ‘mutually explicit understandings’ of Pope’s continued employment to satisfy Pope’s burden” of proof. The trial court granted the City’s motion for summary judgment on Pope’s claims of defamation and intentional infliction of emotional distress, but it concluded that issues of fact existed as to the remaining counts and denied the City’s motion for summary judgment.

Interpretation of statutes, ordinances, and charters, however, presents a question of law for the court. Curlee v. Mock Enterprises, 173 Ga. App. 594, 600 (4) (327 SE2d 736) (1985). The issue of whether the City’s charter or the personnel manual controls Pope’s employment is also a question of law. Under Georgia law, to the extent, if any, that the provisions of the personnel manual conflict with those of the City charter, the charter must prevail. For this reason, we conclude that the trial court erred in denying the City’s motion for summary judgment.

1. In considering these various enactments, we must apply the principal rules of statutory construction. It is axiomatic that if an enactment is plain and unambiguous, we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b). We must seek “to give meaning to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]” Moritz v. Orkin Exterminating Co., 215 Ga. App. 255, 256-257 (450 SE2d 233) (1994). “ ‘[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes “in pari materia,” are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.’ [Cit.]” Bennett v. Wood, 188 Ga. App. 630, 632 (1) (373 SE2d 645) (1988). Finally, “[i]t is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.” (Citations and punctuation omitted.) Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994). These principles apply in the interpretation of city or county ordinances as well as statutes. See, e.g., Hogan v. DeKalb County, 196 Ga. App. 728, 729 (397 SE2d 16) (1990) (harmonizing provisions of county sanitation ordinance in accordance with general statutory rule).

(a) Turning to the provisions of the police department manual relied upon by Pope, we find that by their terms they pertain to “discipline,” e.g.., “(a) reprimand, (b) suspension without pay, (c) probation, [or] (d) dismissal” rather than to nonrenewal of a term of employment. Moreover, the disciplinary provisions contained in the police department manual were largely administered by Pope himself, as chief of police, either by making a disciplinary decision himself or by making a disciplinary recommendation to the City Council. Reading the police department manual in light of the rules of construction described previously, it is apparent that Pope was not “dismissed” within the meaning of the manual’s chapter on discipline. This interpretation also harmonizes the provisions of the manual with § 16 of the City’s charter, limiting the application of the manual’s provisions to discipline imposed within the term of an officer’s service.

The distinction between termination and nonrenewal has been recognized by federal courts in interpreting wrongful discharge claims under Georgia law. For example, in Hudgins v. City of Ashburn, 890 F2d 396 (11th Cir. 1989), a city clerk brought a § 1983 action claiming wrongful discharge under the City’s personnel management plan. The Eleventh Circuit rejected her claim, in part because the plan specifically excepted the plaintiff’s position of city clerk. The court also noted, however, that the city’s Code was “explicit and unambiguous” in its provision of a one-year term for the city clerk, 890 F2d at 405, that the city clerk was not fired but “simply was not re-elected as city clerk,” 890 F2d at 407, n. 21, and that she had no property interest in continued employment as the city clerk. Id.

(b) Moreover, Pope’s contention that the police department manual creates permanent tenure in a position upon good behavior is in direct conflict with the term of office provided by the City’s charter, and the charter must prevail. Under OCGA § 36-35-3 (a), municipal corporations have the power to adopt only “clearly reasonable ordinances,' resolutions or regulations ... for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision applicable thereto.” Moreover, “[a]ny such charter provision shall remain in force and effect until amended or repealed.” Id.

The Georgia Supreme Court has interpreted this Code provision to invalidate municipal ordinances inconsistent with a city’s charter. In Ga. Branch &c. Contractors v. City of Atlanta, 253 Ga. 397 (321 SE2d 325) (1984), contractors challenged the City of Atlanta’s minority set-aside ordinance, contending it violated the city charter’s requirement that contracts be let to the “lowest .and/or best bidder.” The Supreme Court agreed, holding that the city ordinance must yield to the legislative mandate in the charter and that the ordinance was therefore void. 253 Ga. at 398-399 (2).

The federal courts have also agreed that a city’s charter must control where inconsistent with personnel regulations. In Waters v. Buckner, 699 FSupp. 900, 902 (N.D. Ga. 1988), aff’d, 889 F2d 274 (11th Cir. 1989), the district court considered a City of Canton charter provision that any officer elected or employed by the Mayor and City Council could be terminated “with or without cause.” The district court held that this charter provision prevailed over personnel regulations: “The plaintiff appears to argue and allege that the defendants failed to follow personnel regulations in city ordinances and that he was fired for an improper cause. However, as discussed above, the city charter controlled on the terms of his employment. Any part of the personnel regulations that purport to say the police chief can only be fired for cause, which plaintiff has failed to point out to the court, would be void under Georgia law. City ordinances which are inconsistent with a city charter are void. [Citing Ga. Branch, supra.]” 699 FSupp. at 903. Pope’s contention that Waters is distinguishable because he, unlike Waters, has pointed out a personnel regulation stating he can only be fired for cause, is without merit. Waters plainly states that such a regulation, even if pointed out, would nevertheless be void under Georgia law.

(c) The theory of “mutual explicit understanding” relied on by the trial court is based on the companion United States Supreme Court cases of Board of Regents &c. v. Roth, 408 U. S. 564 (92 SC 2701, 33 LE2d 548) (1972), and Perry v. Sindermann, 408 U. S. 593 (92 SC 2694, 33 LE2d 570) (1972). Under those decisions, the parties to an employment contract may create a constitutional property interest by mutual understanding. Pope ignores, however, the clear limitation on this theory that “ ‘the sufficiency of the claim of entitlement must be decided by reference to state law.’ Bishop v. Wood, 426 U. S. 341 (96 SC 2074, 48 LE2d 684) (1976).” Morley’s Auto Body v. Hunter, 70 F3d 1209, 1213 (11th Cir. 1995). The decisions of the federal courts have recognized that no “understanding” can create a property interest contrary to state law. Warren v. Crawford, 927 F2d 559, 564 (11th Cir. 1991).

Since any “understanding” that Pope had a property interest in his employment was contrary to the provision of the City’s charter that his term of service was for no more than 12 months, it would be contrary to state law as embodied in the charter. Such an understanding therefore cannot form a basis for a claim of wrongful discharge, and the trial court erred in so holding.

(d) Pope contends that the City is estopped from relying on § 16 of the charter because it has not abided by all the terms of its charter in the past. In particular, he complains that the City has not enforced the 12-month term of office in the past, that § 16 of the charter should not apply to him because the City does not use the designation of “marshals” as used in that section, and that § 16 should not apply to him because he is in actuality a “special police officer” under § 10 of the charter. This argument ignores the long-standing rule that “[p]owers of all public officers are defined by law and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of an unconferred power.” OCGA § 45-6-5. While a municipal corporation may be estopped where the act relied on, though irregular, was within its charter powers, there can be no estoppel where the act is ultra vires. City of Calhoun v. Holland, 222 Ga. 817, 819 (152 SE2d 752) (1966). In other words, “a governing authority cannot be estopped as the result of an ultra vires act on the part of one of its officers.” (Citations, punctuation, and emphasis omitted.) City of LaGrange v. USAA Ins. Co., 211 Ga. App. 19, 21 (2) (438 SE2d 137) (1993). See also Warren v. Crawford, supra (informal custom of notice and hearing cannot create property interest in employment contrary to state law).

Any earlier failure or refusal of the City to obey the terms of its charter was ultra vires. Pope cannot rely on such acts on the part of the City to estop it from asserting the provisions of its charter in this case.

2. Pope also contends that certain statutes governing municipalities are in conflict with the Buchanan City Charter and thus prevail as a general law over a special law. He refers to provisions authorizing municipal corporations to “define, regulate, and alter the powers, duties, qualifications, compensation, and tenure of all municipal officers, agents, and employees,” OCGA § 36-34-2 (2), and to create a merit system, OCGA § 36-34-2 (4). He further asserts that the police manual itself constitutes a merit system for the police department, thereby creating a property interest in his continued employment.

This somewhat circular reasoning has no merit. Even if the police department manual is construed as a “merit system,” it remains in conflict with the term limit provisions of the City’s charter. See Division 1 (b), supra. A statute giving authority to a city to enact legislation in certain areas cannot itself supersede inconsistent provisions in the city’s existing charter, nor does it authorize the city to enact legislation that is in conflict with the existing charter. The statute merely grants to cities the authority to enact legislation in certain areas. It “was intended to allow municipalities to exercise certain power themselves, OCGA § 36-34-1 (3) . . . , not to define the means by which the cities would and could manage their affairs. . . . In short, the . . . act was intended to delegate power, not regulate its exercise.” Sadler v. Nijem, 251 Ga. 375, 378 (3) (306 SE2d 257) (1983). The City must amend its charter in proper form to institute a merit system which conflicts with the current terms of its charter.

Moreover, OCGA § 36-35-7 specifically provides that “[a]ny provision of any municipal charter heretofore enacted covering subject matters over which municipal corporations are authorized to act pursuant to this chapter shall be amended, modified, superseded, or repealed only in accordance with subsection (b) of Code Section 36-35-3 [dealing with amendment of municipal charters].” The police department manual was never adopted by the City as an amendment to the City’s charter.

In summary, if the “discipline” provisions of the City of Buchanan police department manual are interpreted as a disciplinary scheme rather than as a merit system or a grant of permanent tenure, then they do not conflict with the City’s charter setting a maximum term of office for the City’s police chief. The interpretation advocated by Pope, however, directly conflicts with § 16 of the charter, and the charter must prevail over that interpretation. If the term of office established by the charter is no longer consistent with the City’s employment policies, it may be amended to set such terms of office as the City sees fit. The charter cannot, however, be ignored.

3. Pope, both below and on appeal, has based his liberty due process and contractual claims, as well as his property due process claims, exclusively on the disciplinary provisions of the police department manual, and he has made no separate argument with respect to these additional claims. The trial court likewise based its decision entirely on the theory of a “mutual explicit understanding” allegedly created by the manual. Since we have held that the City’s charter, not the manual, controls the term of Pope’s employment, these claims must also fail.

Pope’s equal protection claim, though never treated separately by Pope or by the trial court, must be analyzed under a different standard, a standard which Pope has failed to meet. Pope has shown neither disparate treatment of persons similarly situated nor purposeful discrimination. See generally Spencer v. McCarley Moving &c. Co., 174 Ga. App. 525, 528 (330 SE2d 753) (1985). Gloria Pope’s derivative claim for loss of consortium must likewise fail. Rogers v. Fred R. Hiller Co. of Ga., 214 Ga. App. 448, 450 (3) (448 SE2d 46) (1994). The trial court erred, therefore, in failing to grant the City’s motion for summary judgment in its entirety.

Decided September 11, 1996.

Elarbee, Thompson & Trapnell, Walter O. Lamberth, Jr., Richard R. Gignilliat, Richard C. Sutton, for appellant.

Ted B. Herbert, for appellees.

Judgment reversed.

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

       While this and other cited federal decisions are not binding authority on this Court, they are consistent with and rely on Georgia authority, and we find their reasoning persuasive.

       The trial court expressly ruled against Pope on the last assertion, and Pope neither appealed nor cross-appealed that ruling. Moreover, there is no evidence that Pope was a special police officer “who is not a member of a permanent and organized police force, but who merely engages to do temporary police duty in a particular place or on a special occasion.” 62 CJS, Municipal Corporations, § 568 (1949). See also Talley v. State, 129 Ga. App. 479, 481 (2) (199 SE2d 908) (1973) (special deputy sheriff); Atlantic Coast Line R. Co. v. Wegner, 90 Ga. App. 267, 272 (83 SE2d 58) (1954) (special law enforcement officer for railroad).

       While the current Buchanan City Charter was enacted in 1908, it has been amended numerous times, including as recently as 1995. Section 16, however, has never been amended or repealed.

       By failing to respond to the City’s factual assertions in this regard, Pope has consented to their accuracy. Court of Appeals Rule 27 (b) (1).


text:
    A96A1431.
    JOHNSON v. THE STATE.
    (475 SE2d 918)
   Smith, Judge.

Eric Henry Johnson was found guilty by a jury of four counts of rape, two counts of incest, and one count of child molestation. Judgments of conviction and sentences were entered thereon and Johnson’s motion for new trial was denied.

1. Johnson contends the evidence was insufficient to support his convictions. Johnson lived in Savannah with his wife, her daughter from a previous marriage, and two daughters from this marriage. He also had three sons from a previous marriage. Construed to support the jury’s verdict, the evidence presented at trial showed that Johnson molested his stepdaughter and the older of his two biological daughters from this marriage over an extended period of time. In 1993, when the girls were 18 and 16, each girl learned that Johnson was also molesting the other, and they immediately told their mother, who notified the police. She immediately separated from Johnson.

Both victims testified at trial. The older girl, who was Johnson’s stepdaughter, testified that Johnson began touching her on her chest and between her legs while she was in bed when she was about nine years old. The molestation progressed to intercourse when she was about 12 and continued after she turned 14. It usually occurred in the basement of their home or in her bedroom, approximately every other day. The house consisted of three levels: the basement; the first floor, on which Johnson and his wife operated a record and tape store; and the second floor, where the family’s living quarters were located, including six or seven bedrooms. Before having intercourse with her, Johnson would show her magazines depicting intercourse in “different positions.”

The younger girl, Johnson’s daughter, testified that she was ten when her father began touching her on her breasts and genitals and that these incidents usually occurred in her room or the kitchen. The girls’ mother worked nights as a nurse at a local hospital at the time, and the touching occurred at night when their mother was working. Johnson’s daughter testified that she protested, but Johnson persisted, telling her that her mother would kill him if she told. The molestation began with touching but progressed to intercourse when she was 12; it continued, against her will, after she turned 14. Although she could not say the exact number of times this occurred, she testified it was more than ten times.

The State also presented evidence of a number of similar transactions. Five witnesses were Johnson’s stepdaughters from a previous relationship. Each testified that Johnson had molested her when she was a child while he lived with her mother, who worked nights. All testified to fondling, and one testified to intercourse. The State also presented the testimony of another of Johnson’s adult daughters, who never lived with him. She testified that Johnson showed her pictures of a sexual nature and fondled her during visits, when she was 11 or 12 years old.

Johnson’s wife, in addition to testifying about her daughters’ revelations that Johnson had been molesting them, testified that he had forced her many years ago to have sexual relations with a 13-year-old girl who worked in their shop, while he took Polaroid photographs of them. The girl, who was an adult at the time of trial, testified that Johnson essentially “blackmailed” her into having sexual relations with his wife and with another woman by taking pictures of her while she used the restroom at his shop. She testified that Johnson had been having sex with her from the time she was 11 until she left when she was 17 and that he threatened to reveal this to his wife.

A police officer testified that in a search of Johnson’s home, x-rated videos and pornographic magazines were found in the shop and the basement, and other x-rated videos were found in the bedroom, along with a Polaroid camera and various items of sexual paraphernalia. The State also introduced into evidence the Polaroid photographs taken by Johnson depicting the sexual activity between his wife and the 13-year-old girl.

This evidence was more than sufficient to authorize the jury to convict Johnson of the crimes charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Johnson contends the trial court erred in admitting into evidence the Polaroid photographs depicting sexual activity between his wife and a 13-year-old girl.

Johnson gave the photographs to the attorney representing him in the divorce action filed against him and instructed him to use them “as needed.” In the midst of the divorce action, Johnson was arrested on these charges. His divorce attorney testified that although he did not represent Johnson in the criminal action, he did file a bond motion in order to get Johnson released from jail so that he could deal with the domestic relations case.

At the bond hearing, that attorney showed the district attorney the Polaroid photographs Johnson had given him. He testified that he did so in order to compromise the credibility of Johnson’s wife, who he believed would be the State’s “star witness.” He was unaware at that time that Johnson had taken the photographs. When the district attorney insisted that the photographs be turned over as contraband, Johnson’s attorney realized he was holding what he referred to as a “hot potato.” He moved the court to seal the photographs and place them in the superior court clerk’s office. The court granted the motion and the photographs were sealed. The court subsequently granted the State’s motion to unseal the photographs and turn them over to the police department to be held as evidence in this case.

Johnson argues that the photographs were confidential communications protected by the attorney-client privilege and should not have been admitted in evidence. We do not agree.

OCGA § 24-9-24 provides that “[c]ommunications to any attorney . . . pending his employment or in anticipation thereof shall never be heard by the court.” But these photographs were not “communications.” They were tangible evidence of a similar crime, and that similar transaction was ruled admissible at a pretrial hearing. Clearly, the photographs could have been seized had they been found in Johnson’s possession. They illustrated Johnson’s lustful disposition and his propensity for sexual activity with children, and they were admissible for that reason. See generally Cunningham v. State, 196 Ga. App. 68 (1) (395 SE2d 330) (1990).

Nor were the photographs protected by any privilege. The fact that Johnson gave them to his attorney did not make them privileged. “It is axiomatic that one cannot render privileged that which is not privileged merely by placing it in the hands of his attorney.” (Citations and punctuation omitted.) Atlantic Coast Line R. Co. v. Daugherty, 111 Ga. App. 144, 150 (141 SE2d 112) (1965). Even if considered “communications,” the photographs were not privileged; Johnson instructed his attorney to use them as he felt proper, an instruction that necessarily authorized Johnson’s attorney to disclose their existence and content to others. Shelton v. State, 206 Ga. App. 579, 580 (1) (426 SE2d 69) (1992). It is true, as pointed out by Johnson, that he did not specifically authorize his divorce attorney to disclose the photographs to the district attorney. He did, however, place them in the attorney’s hands for use in the attorney’s discretion, “as needed.” He cannot now complain that the attorney made an unwise choice of strategy in revealing them to the district attorney. The trial court did not err in admitting these photographs.

3. Johnson does not challenge the similarity of the acts presented in the similar transaction evidence, but he contends they should not have been admitted because they were too remote in time, citing Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991). In Gilstrap, the Supreme Court held that “[i]t should be clear . . . that an event 31 years in the past is too remote.” Id. at 799 (1) (b).

The similar transactions here, however, were more analogous to those held admissible in Bryson v. State, 210 Ga. App. 642 (437 SE2d 352) (1993). Bryson involved similar instances of sexual offenses against children of several generations in a family. We held there that in such instances, “obviously many years are going to lapse between the acts,” and such lapse of time goes only to the weight of the evidence and the credibility of the witnesses, and not its admissibility. Id. at 643-644 (2). See also Starnes v. State, 205 Ga. App. 882, 883-884 (1) (424 SE2d 4) (1992); Cooper v. State, 173 Ga. App. 254, 255-256 (1) (325 SE2d 877) (1985).

Contrary to Johnson’s argument, the similar transaction evidence here clearly shows a continuous course of criminal conduct on Johnson’s part involving close family members and others, focusing on children of a particular age. The fact that Johnson’s conduct with the victims of the similar transactions began many years ago only illuminates in striking fashion the pattern of Johnson’s deviant behavior that culminated in the crimes for which he was on trial. They were clearly admissible.

4. Johnson moved for mistrial based on the admission of the sexually oriented videotapes and magazines, which motions were denied. He does not, however, enumerate as error the rulings on those motions for mistrial. Instead, he challenges on appeal only the admission of those sexually oriented videotapes and magazines. Johnson made no specific objection to their admission at trial, and therefore technically did not preserve this issue for review. Nevertheless, because it is clear that Johnson took issue with the admission of these items, we address this enumeration on the merits.

These items were properly admitted. The older victim testified that he showed her pornography before molesting her. Henson v. State, 182 Ga. App. 617, 618 (2) (356 SE2d 556) (1987). And in cases of sexual offenses against children, our courts, almost without exception, have favored the admission of such materials to illustrate the defendant’s bent of mind. See, e.g., Caldwell v. State, 263 Ga. 560, 564-565 (13) (436 SE2d 488) (1993).

5. The State questioned a witness about Johnson’s attempt to purchase additional insurance on the life of his wife after their separation. Johnson contends the trial court erred in denying his motion for mistrial based on such questioning. The record, however, does not show such a motion was made. Johnson objected on relevancy grounds, and the State made an offer of proof, stating that the testimony tended to show an attempted obstruction of justice and implied that Johnson intended to kill his wife to prevent her from testifying. During the colloquy that ensued, the single word “mistrial” was at one point uttered by defense counsel, but that does not constitute a motion. The prosecutor asked no further questions of this witness.

Although Johnson now complains that the testimony was inadmissible for additional reasons, including prejudice and failure of the State to notify him under USCR 31.1 and 31.3, these grounds were not raised below. We are limited on appeal to considering those grounds raised and ruled upon below. Ellison v. State, 216 Ga. App. 639, 641 (3) (455 SE2d 361) (1995).

6. In his brief, Johnson complains certain comments by the trial court conveyed to the jury the impression that the trial court intended to hurry the trial to conclusion and that, in the words of Johnson’s counsel at trial, “justice would be swift.” Johnson also contends the trial court erred in denying a motion for mistrial based upon the court’s remarks. He argues that the trial court’s remarks violated OCGA § 17-8-57 by indicating an opinion that Johnson was guilty.

This contention is patently absurd and totally unsupported by the record. The remarks referred to by Johnson were made by the trial judge at the outset of the trial on a Monday. In discussing scheduling and procedure during trial, the judge informed the jury that he had an appointment out of town on Friday, and he would therefore keep breaks in the trial as brief as possible. He also mentioned that if the jury had not begun deliberations by Friday, it was possible they would have to return the following week. “OCGA § 17-8-57 is only violated when the court’s [comment] assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. [Cit.]” Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704) (1986). When these comments were made, the court had not as yet even heard any evidence.

7. Johnson maintains that the evidence was insufficient to convict him of the forcible rape of the older victim because although she testified that intercourse with Johnson continued after she turned 14, she never testified that it was against her will.

Defense counsel moved for a directed verdict of acquittal on this count. In denying Johnson’s motion, the trial court noted that the older victim “never came right out and said it, but I think the jury could infer from her demeanor and the general circumstances that it was against her will.” We agree with the trial court that this victim’s. testimony authorized the jury to find that Johnson was guilty of forcibly raping her. It is true that the State’s questioning of Johnson’s biological daughter was more specific in this respect. But the older girl testified that she cried when her sister told her of Johnson’s molestation because he “did the same thing to me.” He began his sexual advances when she was only nine years old and began having intercourse with her when she was twelve. Nothing in her testimony indicated that their relationship became consensual when she became 14. Here, as in Richardson v. State, 256 Ga. 746 (353 SE2d 342) (1987), “[t]he pattern of sexual exploitation presented in this case was ... as a matter of law, forcible and against the will, because of the step-daughter’s age at onset, and because of her familial relationship with [the defendant].” Id. at 747 (2).

8. Contrary to Johnson’s contention, the State did not exhaust all allegations of sexual intercourse in proving rape. Both victims testified to multiple acts of sexual intercourse with Johnson, and consequently, the counts of rape and incest did not merge. The trial court did not err in sentencing Johnson separately for those crimes. Marcello v. State, 220 Ga. App. 284, 285-286 (3) (469 SE2d 252) (1996).

9. Johnson alleges the trial court erred in denying his motion for new trial on the ground that his trial counsel was ineffective. He identifies several actions or inactions on the part of trial counsel that he asserts demonstrate ineffectiveness. These include counsel’s failure to file a motion to suppress the evidence found in the search of his home and failure to call certain witnesses. Even assuming that these assertions are correct, however, and that trial counsel was ineffective, we find no error in the trial court’s denial of the motion for new trial.

Johnson’s claim was presented below and ruled on by the trial court, whose finding of effectiveness must be upheld unless clearly erroneous. Capers v. State, 220 Ga. App. 869, 871 (1) (a) (470 SE2d 887) (1996). To establish a claim of ineffective assistance of counsel, Johnson must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Johnson must establish both the performance and the prejudice components of the Strickland test. In reviewing Johnson’s claim, failure to establish either component results in the denial of the Sixth Amendment claim. Prophitt v. State, 191 Ga. App. 5, 6 (2) (381 SE2d 83) (1989). This case need not address both components if Johnson has made an insufficient showing on one, nor must we address the components in any particular order. Id.

In this case, given the direct testimony of the victims in the charged crimes and the similar transactions alone, it is highly unlikely that the jury would have found Johnson not guilty even had counsel performed in the manner alleged by Johnson to be effective. He cannot, therefore, establish a reasonable probability that the result of the trial would have been different, and his claim must fail. See id.; Rogers v. State, 195 Ga. App. 446, 447-448 (2) (394 SE2d 116) (1990).

10. We do not agree with Johnson that the trial court confused the jury by mentioning statutory rape in its charge. In support of his argument for reversal, Johnson cites Robinson v. State, 232 Ga. 123 (205 SE2d 210) (1974). In Robinson, the trial court charged on both statutory rape and forcible rape, permitting the jury to convict of forcible rape without being required to find that force was used. This was held to be error, but harmless under the evidence presented, which did not include an allegation of consensual sex. Id. at 128-129 (4). This case is distinguished from Robinson. Here, the court defined statutory rape briefly in order to distinguish it from forcible rape, with which Johnson was charged. But after distinguishing statutory rape, the court carefully instructed the jury that “this defendant is not charged with that crime. So I don’t want you to get confused.” This could not have confused the jury and was not error, harmless or otherwise.

Decided September 11, 1996

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

11. Johnson contends the trial court erred in failing to grant his motion for a mistrial when during her testimony, his former wife stated that he had beaten her after he learned she had obtained the Polaroid pictures. Johnson immediately moved for a mistrial, which was denied. On appeal, Johnson contends the motion should have been granted because this constituted evidence of a similar transaction for which the State had not given him notice pursuant to USCR 31.1 and 31.3. Johnson did not object on this ground below, however, and he may not raise this ground for the first time on appeal. Kincer v. State, 208 Ga. App. 360 (1) (430 SE2d 597) (1993).

Johnson also contends that the testimony was prejudicial, a ground which was raised below. The grant or denial of a motion for mistrial, however, is within the discretion of the trial court. Unless it is clear that a mistrial was essential to the preservation of a fair trial, this Court will not interfere with the exercise of that discretion. Jones v. State, 212 Ga. App. 473, 474 (442 SE2d 20) (1994). In this case, we find no abuse of discretion. The challenged testimony was an unresponsive answer by the witness to the State’s question about the pictures. Id.

Finally, given the unresponsive nature of the answer and the overwhelming evidence presented of Johnson’s guilt, it is highly improbable that the testimony contributed to the verdict. Even if error, therefore, Johnson would not be entitled to a reversal on this ground. Id. at 474-475.

Judgment affirmed.

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

       Johnson discharged this attorney.

       In addition, because both Johnson’s wife and the other person depicted in the photograph testified to the acts portrayed in the photographs, even if the admission of the photographs were error it would be harmless. Riggins v. State, 179 Ga. App. 179, 180 (2) (345 SE2d 897) (1986).

       His objection was merely “we’ve already expressed our objection.”

       Johnson objected to the testimony on relevancy grounds. A long colloquy followed at the bench, at the end of which the trial court overruled the objection. Counsel for Johnson then noted his exception for the record, and stated: “Counsel: [0]ne final. . . whether or not there was any implication of any attempt to kill his wife. There’s no evidence concerning that. District Attorney: This is ... Counsel:... mistrial. District Attorney: No, I don’t intend to do anything of the sort. This is all that we’re going to present.” The bench conference then concluded.

       We note that the age under which force need not be shown was changed in 1995 to 16.

       Contrary to Johnson’s assertion, the rape conviction in Robinson was not reversed.


author: Blackburn, Judge.

text:
    A96A2086.
    THE STATE v. RISH.
    (476 SE2d 50)
   Blackburn, Judge.

The state appeals the dismissal of DUI and weaving charges against Randy Rish. At the heart of this appeal is the legality of various orders entered by the trial court governing how criminal prosecutions would commence and proceed in the State Court of Coffee County.

Pursuant to the trial court’s order, the clerk of the court was required to accept for filing, without the knowledge or consent of the solicitor, all Uniform Traffic Citations (UTCs) issued by law enforcement personnel. Only after the UTCs were filed by the clerk, was the solicitor provided with a copy. The trial court also ordered that a UTC “shall constitute an accusation for offenses arising out of the operation of a motor vehicle; and, in the arresting officer’s discretion may operate as a summons to appear for offenses not arising out of the operation of a motor vehicle.” Based on the UTCs filed with the clerk, the trial court would independently schedule arraignments and first appearances. The solicitor was expressly forbidden, upon penalty of contempt, from communicating to the accused that it disagreed with the decision to file the charges contained within a UTC, that it presently lacked evidence to proceed upon such a charge, or that the accused was excused from appearing at any arraignment or other hearing scheduled by the court. While initially the trial court provided that under its system, the state would not be required to proceed to trial if it was waiting for necessary lab reports, this provision was later revoked. The trial court’s stated purpose for instituting this system was “to facilitate the speedy disposition of criminal matters” within the court.

On December 22, 1994, a City of Douglas police officer issued Randy Rish three UTCs, one each for DUI, weaving, and possession of less than one ounce of marijuana. Upon Rish’s request for a jury trial, the recorder’s court transferred these matters to the Coffee County State Court. Upon transfer, all three of the UTCs were docketed in the trial court pursuant to the system outlined above. Accordingly, the solicitor was not afforded the opportunity to review Rish’s three UTCs until they had already been filed with the trial court.

Shortly thereafter, the trial court calendared Rish’s arraignment. In response, the state filed a written notice informing Rish that the state had yet to receive reports requested from the Georgia Crime Laboratory and that it could not “ethically initiate prosecution” without the lab reports. The state’s notice also indicated its position that Rish’s prosecution had not been initiated under a proper “charging instrument,” and that the state did not ratify the prosecution but was forced to participate due to the trial court’s order.

On the day this matter was scheduled for trial, the state filed a dismissal of all the pending charges. The dismissal expressly indicated that the state had yet to ratify the filing of these charges by the court, and that it could not proceed with prosecution due to its inability to secure certain scientific reports in time to serve them upon the defendant in accordance with his pre-trial requests. The dismissal further stated that the state would reinstate the charges “upon receipt of the proper reports.”

On December 8, 1995, after receiving the lab reports it had been awaiting, the state filed accusations against Rish for one count of possession of marijuana and three counts of DUI. The state also ratified as an accusation the UTC on the weaving charge. Rish then filed a motion seeking to dismiss the traffic charges, arguing that these charges were previously dismissed and that their “reinstatement” was null and void. Without explanation from the trial court, said motion was granted. It is this action that the state appeals.

1. The state contends that the trial court erred in compelling the criminal charges against Rish to be filed with the clerk without the consent of the solicitor and in dismissing those charges subsequently filed by the solicitor. Generally, a prosecution in state court commences with the filing by the solicitor of an accusation or UTC with the clerk of the court. OCGA § 16-1-3 (14). There are many benefits to the solicitor, as the state prosecutor, determining whether a prosecution should proceed and when within the law it should do so. There are ethical considerations, which require the solicitor to insure that the evidence, such as lab reports, supports the charges prior to proceeding with a prosecution. Also, where, as here, there are multiple offenses charged, the early prosecution of one charge (DUI) prior to the receipt of the lab report in the related drug offense could ultimately bar the drug prosecution, as multiple prosecutions of charges arising from the same incident are not generally allowed. The analysis and determination of such matters must be made by the solicitor as the trial judge cannot properly do so.

“ £[F]rom the beginning of our criminal justice system prosecutors have exercised the power of prosecutorial discretion in deciding which defendants to prosecute.’ ” Bishop v. State, 265 Ga. 821, 822 (462 SE2d 716) (1995); see Hicks v. Brantley, 102 Ga. 264, 271-272 (29 SE 459) (1897) (prosecuting attorney is to determine whether or not to commence a prosecution). In the state court, the role of prosecutor is filled by the solicitor. See OCGA § 15-7-24 (now repealed); see also Zater v. State, 197 Ga. App. 648, 649 (399 SE2d 222) (1990) (solicitor’s role in state court is same as that of district attorney who is the prosecuting attorney in superior court).

Decided September 11, 1996.

Rebecca L. Sims, Solicitor, for appellant.

The Georgia appellate courts have historically safeguarded the prosecutor’s independence in the performance of the duties of that office and the separation of the judicial and prosecutorial functions. See State v. Guhl, 140 Ga. App. 23, 25 (230 SE2d 22) (1976), rev’d on other grounds, Mitchell v. State, 239 Ga. 3 (235 SE2d 509) (1977) (supervising judge who actively participated in a grand jury investigation was disqualified because he had become too closely “affiliated with the district attorney’s investigatory and prosecutorial functions”). See also State v. Hanson, 249 Ga. 739, 744 (295 SE2d 297) (1982).

While not binding in this case, we note that the Georgia General Assembly recently enacted OCGA § 15-18-66, which provides in part: “No accusation, citation, or summons shall be considered filed unless such filing has been done with the consent, direction, or approval of the solicitor-general. . . . Prior to the filing of an accusation, citation, or summons, the solicitor-general shall have the same authority and discretion as district attorneys over criminal cases within their jurisdiction.” OCGA § 15-18-66 (b) (10).

A prosecution commences upon the lawful filing of the accusation. OCGA § 16-1-3 (14). Here, the initial “filing” of the UTCs was not done by the solicitor, or with her permission and under the facts of this case, the “dismissal” of those charges does not preclude her refiling the charges on a new, formally drawn accusation or on a UTC. See Ellerbee v. State, 215 Ga. App. 102, 104 (449 SE2d 874) (1994).

Therefore, the trial court erred in granting the motion to dismiss based upon defendant’s contention that there was no valid prosecution on the subject charges pending before the court at the time of defendant’s motion to dismiss.

2. Because of our ruling, the state’s remaining enumerations of error need not be addressed.

Judgment reversed.

Beasley, C. J, and Birdsong, P. J., concur.

W. Boyd English, for appellee.

       Pursuant to the trial court’s order, “[u]pon appearance or whenever the Court considers it appropriate, the Court shall inform a Defendant cited by a law enforcement officer with an offense not arising out of the operation of a motor vehicle, of the right to be charged with such offense by accusation ... but that such right may be freely and voluntarily waived by the Defendant.”

       Some of these procedures instituted by the trial court were similar to those authorized in a traffic violations bureau, OCGA § 40-13-50 et seq.

       Effective July 1, 1996, the legislature comprehensively revised the law regarding the office of state court solicitor, renaming the office that of solicitor-general. OCGA § 15-18-60 et seq. A provision of that legislation concerning the inability to commence a case in state court without the consent of the solicitor-general, OCGA § 15-18-66 (b) (10), is discussed in more detail, infra.


author: Eldridge, Judge.

text:
    A96A2105.
    WIDEMAN v. THE STATE.
    (476 SE2d 49)
   Eldridge, Judge.

A jury found Clay Wideman guilty of burglary and giving a false name; he appeals.

1. Appellant challenges the sufficiency of the evidence supporting his conviction. In a light most favorable to upholding the jury’s verdict, the evidence shows that appellant waited until Jasper Thompkins left his house on Laney Walker Boulevard in Richmond County. He then came onto the porch of Thompkins’ house, wrapped a piece of paper around his hand, and broke out a window of the house. Appellant entered the house through the broken window. Pursuant to a neighbor’s call, the police arrived at the victim’s house as appellant was coming out the front door. Appellant attempted to run, but the police stopped him; he had a TV remote control device in his hand and a screwdriver in his pocket. A television set had been removed from a TV stand and placed in a chair in the victim’s bedroom. Upon inquiry, appellant told the police that his name was “Reggie White.” The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses of burglary and giving a false name. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant claims as error the trial court’s failure to charge the jury on OCGA § 16-8-10 (2), which provides an affirmative defense to one charged with theft by taking if the defendant “[a]cted under an honest claim of right to the property . . . involved[.]” Although appellant neither requested such a charge nor objected to the charge as given, he maintains that this “claim of right” charge was his sole defense and was directed at the underlying felony of theft which supported his burglary conviction; thus, appellant contends that the failure to charge the jury thereon was reversible error as a matter of law. Under the facts of this case, we disagree.

A request to charge must be legal, apt, precisely adjusted to some principle involved in the case, and be authorized by the evidence. Wainwright v. State, 208 Ga. App. 777 (432 SE2d 555) (1993); Jirles v. State, 204 Ga. App. 268 (419 SE2d 117) (1992). Even raising the hue and cry of “sole defense” does not mandate that a charge be given without some evidence to support it. Hayes v. State, 193 Ga. App. 33, 37 (8) (387 SE2d 139) (1989); Wells v. State, 186 Ga. App. 62 (366 SE2d 397) (1988). At trial, appellant admitted that his entry into the victim’s home was unauthorized. However, appellant testifled that he was only seeking to remind the victim that he owed appellant an additional $20 for a Zenith 19-inch television set the victim had allegedly purchased from appellant the day before. To this end, appellant picked up and moved a Quasar television set for which the victim had a receipt from Macy’s; appellant was caught by the police with a Quasar TV remote control in his hand. Thus, appellant’s contentions regarding the sale to the victim of a Zenith television set provided no evidence to support a jury charge regarding an “honest claim of right to the property . . . involved” in this incident, i.e., a Quasar television set, pursuant to OCGA § 16-8-10 (2). There was no error in the charge as given. Compare Edens v. State, 197 Ga. App. 146 (397 SE2d 612) (1990).

Decided September 11, 1996.

Sam B. Sibley, Jr., for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. Appellant contends that during the charge to the jury, the trial court committed reversible error by expressing an opinion as to the appellant’s guilt in violation of OCGA § 17-8-57. “ ‘The question of whether [this section] has been violated is not reached unless an objection or motion for mistrial is made.’ ” Driggers v. State, 244 Ga. 160, 162 (259 SE2d 133) (1979); accord Coney v. State, 198 Ga. App. 272 (401 SE2d 304) (1991). In the case sub judice, appellant did not reserve objections to the jury charge. As the appellant failed to properly preserve this enumeration of error for appellate review, we will not consider it. See Sims v. State, 266 Ga. 417, 418 (467 SE2d 574) (1996).

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A96A1493.
    VAN ALSTINE v. MERRITT.
    (476 SE2d 6)
   Judge Harold R. Banke.

Enumerating four errors, James Van Alstine, acting pro se, appeals the denial of his motion for an interlocutory injunction and the grant of summary judgment in favor of Dr. George Merritt.

Van Alstine, a former law enforcement officer currently serving a life sentence for felony murder, sued Dr. George Merritt, the medical director of Georgia State Prison, alleging negligence, medical malpractice, and constitutional violations based on purportedly inadequate medical treatment and indifference to his medical needs. Although Van Alstine asserted that he experienced problems relating to a serious heart condition, control of diabetes, and an improperly-treated ear infection, the gravamen of his action is the denial of his repeated requests to be seen by a cardiologist. He also asserted that he had been denied proper medical care because Merritt refused to transfer him to a medical unit at another prison. In a letter to Merritt, Van Alstine articulated his desire as a former law enforcement officer to leave Georgia State Prison due to possible contact with fellow inmates. Van Alstine’s medical records and prison grievance forms document multiple complaints of chest pains, shortness of breath, episodes of heart racing, and breathing problems.

The trial court granted summary judgment to Merritt determining as a matter of law that no genuine issues of material fact remained to be tried, and that Van Alstine failed to show any abuse of discretion in the denial of the requested transfer. The court also concluded that it lacked the authority to transfer Van Alstine to another facility. Held:

1. The trial court properly granted summary judgment to Merritt on Van Alstine’s civil rights claim. Medical personnel employed in state prisons can be liable under 42 USC § 1983 only when their actions constitute deliberate indifference to the inmate’s serious medical needs resulting in an “unnecessary and wanton infliction of pain.” (Citation and punctuation omitted.) Estelle v. Gamble, 429 U. S. 97, 104 (97 SC 285, 50 LE2d 251) (1976). In order to implicate the protections of the Eighth Amendment to the United States Constitution, it must appear that the medical treatment provided to the inmate could be considered cruel and unusual conduct. Johnson v. Jones, 178 Ga. App. 346, 348 (343 SE2d 403) (1986). Mere negligence alone is inadequate to support an Eighth Amendment claim. Wilson v. Seiter, 501 U. S. 294, 305 (111 SC 2321, 115 LE2d 271) (1991). Moreover, to prevail on an Eighth Amendment claim, an inmate must show not only the infliction of cruel and unusual punishment but also must show a culpable state of mind on the part of prison officials. Wilson, 501 U. S. at 296.

In opposition to Merritt’s summary judgment motion, Van Alstine offered only his own affidavit and failed to offer any medical testimony which would show inadequate medical care, let alone deliberate indifference to serious medical needs. In support of summary judgment, Merritt provided Van Alstine’s medical records and his own affidavit. The medical records show that Van Alstine visited the medical department on numerous occasions and that Merritt, other physicians, and medical personnel responded to his various complaints. According to Merritt’s testimony, he acted within the standard of care for physicians generally in similar circumstances. Van Alstine’s medical records as well as Merritt’s affidavit establish the absence of deliberate indifference to serious medical needs. Payne v. Golden, 245 Ga. 784, 785 (267 SE2d 211) (1980).

Decided August 26, 1996

Reconsideration dismissed September 12, 1996.

James E. Van Alstine, pro se.

Michael J. Bowers, Attorney General, William P. Tinkler, Jr., Stephen D. Morrison, Jr., for appellee.

Merritt’s medical judgment not to order a consultation by a cardiologist and his decision not to grant Van Alstine’s transfer request do not rise to the level of a constitutional violation. Estelle, 429 U. S. at 107. Because no genuine issue of material fact remains, Merritt was entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

2. Merritt was entitled to summary judgment on Van Alstine’s medical malpractice claim because Van Alstine failed to attach a professional affidavit to his complaint as required by OCGA § 9-11-9.1 (a). Bowen v. Adams, 203 Ga. App. 123 (416 SE2d 102) (1992).

3. Having determined in Division 1 that Merritt was entitled to summary judgment, we need not address the issue of the scope of qualified immunity.

4. The record fails to show that the trial court ruled on the requested interlocutory injunction. Because no judgment was entered, nothing is properly presented for appellate review. OCGA § 5-6-33; Garland v. State of Ga., 101 Ga. App. 395, 398 (1) (114 SE2d 176) (1960).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       In his enumeration of error, Van Alstine incorrectly characterizes the trial court’s grant of summary judgment as a dismissal.


author: Ruffin, Judge.

text:
    A96A1125.
    GENTILE v. BOWER.
    (477 SE2d 130)
   Ruffin, Judge.

Anthony Gentile appeals the trial court’s order granting summary judgment to Paul Bower for the balance due on a $36,000 promissory note that Gentile executed in connection with a real estate sales contract. We reverse.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832) (1993). In order to prevail at summary judgment under OCGA § 9-11-56, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Citation and punctuation omitted.) Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). However, if the respondent successfully produce’s such rebuttal evidence in the form of an affirmative defense, the burden shifts back to the movant to establish the non-existence of a genuine issue of fact as to each affirmative defense. Abdalla v. DDCB, Inc., 216 Ga. App. 667, 668 (455 SE2d 598) (1995). Furthermore, the movant’s “papers are carefully scrutinized and all doubts are resolved against [him], while [the respondent’s] papers are treated with considerable indulgence. [Cits.]” (Punctuation omitted.) Id. at 669.

The record in this case shows that in December 1991, Bower agreed to sell property to Gentile, subject to an existing first security deed. The parties signed a sales contract which provided that Bower would convey marketable title by general warranty deed to Gentile at the time of closing. The contract further required Gentile to reconvey to Bower a “wrap around” security deed and a promissory note covering the balance Bower owed on the existing first security deed, as well as a second security deed and a separate promissory note in the amount of $36,000 covering Bower’s equity in the property. In January 1992, approximately three weeks after the parties signed the sales contract, they closed the sale. At the closing, Gentile executed and delivered the security deeds and promissory note described in the sales contract, but Bower apparently never delivered the general warranty deed to Gentile.

Following the closing, Gentile brought this action for fraud, alleging that Bower made false representations regarding the property. Bower then counterclaimed against Gentile, demanding payment on the $36,000 promissory note. The trial court granted Bower summary judgment both on Gentile’s fraud claim and on his own counterclaim for the balance due on the $36,000 promissory note. Gentile appeals only the trial court’s grant of summary judgment on Bower’s counterclaim.

Before addressing the merits of this appeal, we note that Gentile’s counsel has violated the rules of this Court in preparing his brief. In particular, the brief fails to conform to Court of Appeals Rule 27 (c) (1), which requires that the sequence of arguments presented in the briefs “shall follow the order of the enumeration of errors, and shall be numbered accordingly.” The brief also fails to comply with Court of Appeals Rule 27 (c) (3), mandating that a party support its arguments with specific reference to the record or transcript. “It is not the function of appellate judges to engage in the insipid search for support of alleged error without citation to relevant parts of the record.” Kinsey v. State, 219 Ga. App. 204, 205 (464 SE2d 648) (1995). Gentile’s brief contained no reference to the record supporting his contention that Bower failed to deliver the warranty deed to him at the time of the closing.

Furthermore, Gentile’s counsel raises two different errors within a single enumeration, citing the Code sections for both summary judgment and the parol evidence rule. When an appellant asserts more than one error within a single enumeration, this Court may exercise the discretion to review none, one or both of the errors asserted. Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995). Thus, in addition to making it difficult for us to address the merits of Gentile’s claim, counsel’s failure to follow the rules of this Court is potentially prejudicial to his client. Needless to say, we expect all counsel practicing in this Court to know and to follow its rules. We are, accordingly, requiring by separate order that Gentile’s counsel show cause why he should not be cited for contempt for failure to comply with this Court’s rules.

1. Gentile first contends that the trial court erred in granting Bower’s motion for summary judgment because there are genuine issues of material fact as to his liability under the $36,000 promissory note. We agree.

In an action on a promissory note, a claimant may establish a prima facie right to judgment as a matter of law by producing the promissory note and showing that it was executed. Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (1) (388 SE2d 43) (1989). In this case, Bower established such a prima facie right to judgment by producing the executed $36,000 promissory note. Accordingly, on Bower’s motion for summary judgment, the burden shifted to Gentile to establish an affirmative defense to Bower’s claim. See Kelly, supra.

Contrary to Bower’s contentions, Gentile did meet this burden. In his response to Bower’s summary judgment motion, Gentile claimed that he was relieved of his liability under the promissory note because Bower failed to deliver the warranty deed referred to in the real estate sales contract, thus implicitly raising the affirmative defense of “failure of consideration.” Furthermore, Gentile does not merely rely on his pleadings to establish this affirmative defense. As evidence in support of this contention, Gentile attached the real estate sales contract, which provides that Bower was to deliver the warranty deed to Gentile at the time of the closing. In addition, Gentile provided deposition testimony specifically showing he did not receive the warranty deed at the time of the closing.

As a general rule, “the maker [of a promissory note] can always plead failure of consideration in defense to a suit on a promissory note. [Cits.]” Emerson v. Cousins Mtg. &c., 145 Ga. App. 883, 884 (244 SE2d 890) (1978). Furthermore, although failure of consideration is an affirmative defense (see OCGA § 9-11-8 (c)), Gentile “was not required to answer [Bower’s] counterclaim [under OCGA § 9-11-12 (a)], and under OCGA § 9-11-12 (b) [he] could assert [his] defense of [failure of consideration] at trial. If [Gentile] could assert the defense at trial without a responsive pleading, it follows that [he] could assert it in response to a motion for summary judgment by presenting evidence of [the consideration agreed upon].” Jones v. Conlin, 171 Ga. App. 346 (320 SE2d 188) (1984).

The text of the promissory note itself does not describe the specific consideration for which it was given, stating only that it was given “for value received.” Such a note “is not complete on its face and is ambiguous as it does not specify the consideration received by [Gentile] in exchange for the note.” Jaraysi v. Soloway, 215 Ga. App. 531, 533 (1) (451 SE2d 521) (1994). Furthermore, this Court has held that “[w]here a promissory note recites no consideration except in the words Tor value received,’ and suit is brought thereon by the payee against the maker, the real consideration of the note may be inquired into as far as may be necessary to the defense pleaded.” Dunson & Bros. Co. v. Smith Seed Co., 26 Ga. App. 585 (106 SE 914) (1921). Where the defense pleaded is failure of consideration, as in this case, such an inquiry into the real consideration agreed upon is clearly necessary. Thus, Gentile successfully established an affirmative defense in rebutting Bower’s prima facie right to judgment.

As a result, the burden shifted back to Bower to establish the non-existence of any genuine issue of fact as to Gentile’s affirmative defense. Bower did not meet this burden. Bower apparently contends that delivery of a warranty deed was not part of the consideration for the promissory note, asserting that “Bower was not to provide Gentile with a warranty deed until the wrap around note was paid in full.” Bower’s contention, however, is completely unsupported by the record. Although Bower’s motion for summary judgment was accompanied by an affidavit, the affidavit does not support the assertions set forth in the summary judgment motion on this issue. While the motion cites the “wrap around note,” which covers the principal balance on the property and which is not due in full until the year 2018, the affidavit presumably refers to the $36,000 promissory note in stating, ‘We agreed that I would not record the wrap around security deed and warranty deed until the second mortgage note was paid.” In his motion, Bower apparently confuses the two promissory notes involved in the real estate transaction, referring to the “wrap around note” instead of the $36,000 note. There is absolutely no evidence in the record to support the contention in the summary judgment motion that the deed was not to be delivered until the wrap around note was paid in full. In addition, even if such evidence existed, it would merely contradict the express terms of the real estate sales contract, still creating a material issue of fact.

Decided September 12, 1996.

Leon Pomerance, Tony Center, Arnall, Golden & Gregory, James R. Evans, Karen B. Bragman, for appellant.

McKee & Barge, James R. Marshall, for appellee.

Thus, there appears to be a contested issue of material fact as to the consideration agreed upon by the parties in return for the promissory note. The fact that Gentile did not appeal the trial court’s order granting Bower summary judgment on the main claim for fraud and breach of the real estate sales contract does not operate to foreclose Gentile’s affirmative defense as to the counterclaim since the two claims involve separate contracts that must be dealt with individually. Since Bower held the burden of establishing the nonexistence of any genuine issue of fact regarding Gentile’s liability under the $36,000 promissory note, and Bower failed to meet this burden, summary judgment was erroneously granted in his favor.

2. Because we reverse the trial court’s ruling for the reasons discussed above, we need not address Gentile’s remaining enumerations of error.

3. Bower’s motion for damages, alleging Gentile filed a frivolous appeal, is denied.

Judgment reversed.

McMurray, P. J., and Johnson, J, concur.


author: Andrews, Judge.

text:
    A96A0929.
    CUNNINGHAM v. THE STATE.
    (475 SE2d 924)
   Andrews, Judge.

Clarence Cunningham was convicted of theft by bringing stolen property into Georgia (OCGA § 16-8-9); DUI, being less safe to drive due to intoxication; flight to avoid a police officer after being given “visual and audible signals”; and obstruction of an officer based on his running away from the scene. He appeals from the denial of his motion for new trial, contending the evidence was insufficient and that his trial counsel was ineffective. We affirm.

1. Viewed with all inferences in favor of the jury’s verdict, Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991), the evidence was that Taylor, a resident of South Pittsburg, Tennessee, reported his 1971 Ford pickup stolen around 9:30 p.m. on November 13, 1994. He had stopped on Highway 41 between Jasper, Tennessee and South Pittsburg at Kimball’s Barbecue, parking his truck in the lot, around 7:30 p.m. He apparently left the pickup keys on the counter when he paid for his food and beverage. He gave no one permission to take the truck.

Around midnight, Whitfield County Deputy Sheriff Farrar received a lookout for a Ford pickup which had been involved in a domestic dispute at a Waffle House near 1-75, where Cunningham’s estranged wife and niece worked. The pickup was reported headed north on 1-75. Shortly thereafter, Farrar was advised the pickup had returned and the domestic dispute continued. Farrar arrived at the Waffle House between 1:30 and 1:45 a.m. and found Cunningham there. Cunningham was “very nervous, [and] appeared to be intoxicated.” Farrar stayed and observed Cunningham for a while, but felt he had observed nothing for which he could arrest him. While observing, he noticed Cunningham was wearing a hat. Farrar returned to his cruiser and saw a Ford pickup in the parking lot. He watched Cunningham from his cruiser for about 20 minutes .and then was notified that Cunningham would not leave until the police did. Farrar moved his cruiser out of sight and saw the Ford pickup leave and head toward 1-75, followed by Trooper Fowler, who was participating in the surveillance.

Trooper Fowler followed the pickup onto 1-75, followed by Farrar and other local officers. He observed the pickup weaving and turned on his blue lights to effect a traffic stop. The truck pulled into the emergency lane, struck the guardrail several times, and went down an embankment.

The driver got out, looked at Trooper Fowler, and then ran through a barbed wire fence into a wooded area. The driver was wearing jeans, a white shirt with a design on the back, and a hat. Trooper Fowler and Deputy Sanders pursued, but were unable to catch the driver. State’s Exhibit 3, a hat, was found near the barbed wire fence and identified by Farrar as the hat he saw Cunningham wearing. A jacket, State’s Exhibit 5, was found on the seat of the pickup, along with a Tennessee license plate different from the Tennessee tag on the truck. At trial, Cunningham acknowledged that the jacket was his. At this time, the Georgia officers were not aware the truck had been stolen.

While the officers were searching for the driver, they received information that Cunningham had gone to a trailer park. Farrar, Fowler, and three other officers proceeded to the trailer less than two hours after the wreck. The officers opened the trailer door and entered, finding Cunningham passed out on a bed. The officers detected the odor of alcohol, Cunningham’s speech was slurred, he was unsteady on his feet, and his eyes were glassy. He refused to take a blood test. He was scratched up and a pair of leather shoes, wet and covered with grass seed, were found in front of a heater. Cunningham was wearing different clothing than when last seen.

Cunningham testified and acknowledged that he lived near Jasper, Tennessee. While he denied driving or being in the Ford, he admitted that he was intoxicated that evening, having consumed three of four six-packs during the day. He said he had been with Lawson, who dropped him off at the Waffle House. Because they were still married, he could eat free there and he was going to “sober up.” He stayed at the Waffle House several hours because he and his wife had an argument and some man had grabbed her.

Cunningham said his wife and niece arranged for Homer, last name unknown, to take him home. Homer was a regular customer who sometimes took him home. Cunningham said he did not change his clothing that evening and denied stealing the pickup. He admitted that the hat and coat found near and in the truck were his, but said he had left them on a stool at the Waffle House and whoever was driving the truck took them. Cunningham did not know the current whereabouts of either his then ex-wife or niece, and the officers had been unable to locate them.

(a) The issue of which version of these events to believe was for the jury, which resolved the credibility issues in favor of the State. OCGA § 24-9-80. This Court will not weigh the evidence or determine witness credibility, but only determines the sufficiency of the evidence. Daras, supra.

(b) OCGA § 16-8-9 prohibits a person from bringing into this state “any property which he knows or should know has been stolen in another state.” Such guilty knowledge can be established by direct or circumstantial evidence and can be inferred from circumstances which would, in the opinion of the jury, lead a reasonable person to believe that the vehicle was stolen. Id. at 513 (1) (c). Here, the pickup truck was reported stolen from a locale near Cunningham’s home around 9:30 p.m., and was next seen after midnight in Cunningham’s possession, with an extra license tag on the seat. When police attempted to stop him, he ran, a circumstance which the jury could consider evidence of guilt. Lamar v. State, 216 Ga. App. 513, 514 (2) (455 SE2d 316) (1995); State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990).

Review of the transcript reveals sufficient evidence from which any rational trier of fact could have found Cunningham guilty of this offense beyond a reasonable doubt. Hurston v. State, 202 Ga. App. 311 (1) (414 SE2d 303) (1991); Daras, supra at 514 (2).

(c) Further review reveals evidence that, when first seen at the Waffle House, Cunningham appeared to an experienced officer to be under the influence of alcohol, and, when found two hours later, he was passed out. Upon being awakened, he exhibited slurred speech, glassy eyes, and had the odor of alcohol about him. In the opinion of the trooper who identified Cunningham as the driver of the pickup and saw it weaving on 1-75, in addition to observing him upon his arrest, Cunningham was less safe to drive due to his intoxicated condition.

The evidence was sufficient to convince any rational trier of fact of his guilt of this crime beyond a reasonable doubt. Martin v. State, 216 Ga. App. 25 (453 SE2d 498) (1995); Lewis, supra at 832 (1).

(d) Regarding his conviction of OCGA § 16-10-24 (a), the evidence showed that Cunningham bolted and ran after running off the road, having seen marked police cars, one with blue lights activated, pursuing him and uniformed officers running at him. There was sufficient evidence for any rational trier of fact to find him guilty of this offense beyond a reasonable doubt. Okongwu v. State, 220 Ga. App. 59, 62 (3) (467 SE2d 368) (1996).

2. Cunningham’s first enumeration is that his trial counsel was ineffective. Cunningham was represented through arraignment by attorney Corbin, but became dissatisfied with him and attorney Ward took over the case after January 30, 1995. After trial, Cunningham was appointed new appellate counsel who filed an amended motion for new trial contending Ward was ineffective for not making a motion for directed verdict on Counts 1 and 3 and for failing to file pretrial motions.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990); see also Hayes v. State, 211 Ga. App. 801, 802 (1) (440 SE2d 539) (1994). A conviction will not be reversed on the basis of ineffective assistance of counsel unless “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Punctuation omitted.) Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984).

Decided September 13, 1996.

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, John S. Helton, Assistant District Attorney, for appellee.

(a) The assertion that counsel’s failure to make a motion for directed verdict as to Count 1 was ineffective is without merit. Since we concluded in Division 1 that there was sufficient evidence to prove Cunningham’s conviction, “ ‘a motion for directed verdict of acquittal would have been futile, and the failure to do so in no way constituted a deficient performance.’ Hayes, supra at 803.” Tenant v. State, 218 Ga. App. 620, 623 (4) (d) (462 SE2d 783) (1995).

(b) Even assuming, without deciding, that counsel should have made a motion for directed verdict as to Count 3 based on the fact the indictment charged “visual and audible” signals and the evidence showed only visual signals given, Little v. State, 202 Ga. App. 7, 8 (2) (413 SE2d 496) (1991), the trial court’s grant of appellate counsel’s motion for new trial on Count 3 makes this claim of ineffective assistance for failure to make that motion moot. Johnson v. State, 214 Ga. App. 77, 81 (2) (447 SE2d 74) (1994); Moore v. State, 212 Ga. App. 497 (1) (442 SE2d 311) (1994).

(c) Finally, Cunningham contends that trial counsel’s failure to file a motion to suppress the evidence of his refusal to take a blood test and the wet shoes found in the trailer was ineffective.

As noted above, attorney Ward was appointed after arraignment, at or before which time motions are required to be filed. Ellis v. State, 216 Ga. App. 232, 233 (1) (453 SE2d 810) (1995); Uniform Superior Court Rule 31.1. While appellate counsel notes that a motion to file thereafter may be made, granting or denying such a request is within the discretion of the trial court. USCR 31.1. Denial of such a motion is not error. Ellis v. State, supra; Thompson v. State, 195 Ga. App. 18, 20 (2) (392 SE2d 732) (1990). Therefore, failure to make such a motion was not a deficient performance. Tenant, supra.

Attorney Ward was given access to the State’s file, and therefore, a discovery motion was not necessary and would have, as noted by the trial court, resulted in the State’s being entitled to reciprocal discovery.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       The trial court granted Cunningham’s motion for new trial as to this count, and the issue of sufficiency of the evidence on this count is not addressed.

       We note that proof of such an unsafe act is not necessary for conviction under OCGA § 40-6-391 (a) (1). Lewis v. State, 214 Ga. App. 830, 831 (1) (449 SE2d 535) (1994).

       We construe this as being a complaint that the trial court erred in denying Cunningham’s motion for new trial on this ground, considering the procedural posture of this case. OCGA § 5-6-48 (f>.

       While not necessary for our decision, we note that the trial court’s conclusion that the entry into the trailer was made in “hot pursuit” was not clearly erroneous. Brock v. State, 196 Ga. App. 605 (396 SE2d 785) (1990); see generally Carranza v. State, 266 Ga. 263 (467 SE2d 315) (1996).


text:
    A96A1039.
    SOERRIES v. CITY OF COLUMBUS.
    (476 SE2d 64)
   Judge Harold R. Banke.

On May 2,1995, the Columbus City Council (“the Council”) voted to revoke the alcoholic beverage license held by William A. Soerries d/b/a The Chickasaw Club (“the Club”). Prior to the Council’s action, the Clerk of the Council notified Soerries that the Columbus Police Chief had recommended the license revocation and that a hearing on the matter would take place on April 25. Represented by counsel, Soerries appeared at the Council meeting to oppose the proposed revocation action. After hearing the evidence presented by both sides, the Council tabled the proposal until the next meeting where the Council voted 8-2 to revoke the license. The Council predicated its action on evidence documenting that law enforcement personnel had responded to multiple problems at the Club, primarily underage persons gaining entry.

Claiming irreparable harm due to the Club’s closing, Soerries immediately filed a complaint seeking declaratory relief, a preliminary and permanent injunction and damages. Soerries alleged that the ordinance was constitutionally defective and that the City failed to comply with OCGA § 3-3-2 by not providing him written notice of the decision and by not affording him a post-decision hearing. Soerries challenged the ordinance for allegedly failing to provide readily ascertainable objective standards for the revocation of licenses. See OCGA § 3-3-2 (b) (1). Soerries further claimed that two ordinances were internally inconsistent, with one permitting the admission of underage active duty military personnel into establishments serving alcoholic beverages and another prohibiting the entry of all minors into such establishments.

On the same day as the filing, prior to receiving a formal responsive pleading, the trial court conducted a hearing and heard argument from both Soerries and the City, which submitted six exhibits in addition to the mayor’s testimony. The City moved to dismiss Soerries’ complaint and argued that equitable relief was not available because the matter should have been brought as a request for certiorari.

One week later, the trial court dismissed Soerries’ complaint, denied injunctive relief, and entered judgment in favor of the City on all claims. The trial court dismissed Soerries’ complaint in part on procedural grounds and in part on its merits. The trial court determined that none of the statutory or constitutional issues articulated in Soerries’ complaint had been raised before the Council and that Soerries waived certain arguments by admitting that he had violated the law.

Soerries appealed the dismissal of his complaint to the Georgia Supreme Court and also filed a petition for certiorari in superior court. Several months later, another trial court dismissed Soerries’ petition for certiorari, determining that no question of fact was involved, and there was no error of law in the record. Soerries did not appeal this decision.

While the instant appeal was pending in the Supreme Court, the Council voted to reinstate the alcoholic beverage license to Soerries effective December 19, 1995. After being apprised of the license reinstatement, the Supreme Court transferred the appeal to this Court, relying on Lorenz v. DeKalb County, 215 Ga. 731 (113 SE2d 404) (1960). Finding that Soerries’ claims for equitable relief had been rendered moot and the only claim remaining concerned the recovery for money damages, the Supreme Court determined the case no longer involved equity and it lacked jurisdiction. Citing both procedural and jurisdictional grounds, the City moved to dismiss the appeal. Held:

The trial court did not err in dismissing Sorries’ lawsuit. Soerries’ claim for damages was contingent on the alleged wrongful revocation of his license and the alleged statutory and constitutional defects in the ordinance and in the Council proceedings, assertions improperly brought in this action as explained below.

The exclusive mechanism by which Soerries could challenge the Council’s revocation of his liquor license was by filing a petition for certiorari. Carr v. City Council of Augusta, 124 Ga. 116, 118 (52 SE 300) (1905). In deciding to revoke Soerries’ license based on violations of the City’s Ordinance, the Council exercised judicial power in the same manner as a court would exercise power in investigating whether a person violated a law. Id. at 118. OCGA § 5-4-1 provides that such judicial decisions are reviewable in superior courts by way of certiorari. Beckanstin v. Dougherty County Council of Architects, 215 Ga. 543, 545 (3) (111 SE2d 361) (1959); City of Cedartown v. Pickett, 193 Ga. 840, 842 (1) (20 SE2d 263) (1942). Accordingly, Soerries could not properly assert this issue in the instant action. Carr, 124 Ga. at 118; see OCGA § 9-4-2; Grovenstein v. Effingham County, 262 Ga. 45 (414 SE2d 207) (1992) (appellants began jointly two proceedings, including certiorari petition).

Moreover, Soerries’ failure to raise the statutory issues before the Council precluded his raising them for the first time in the instant action. State Bd. of Equalization v. Trailer Train Co., 253 Ga. 449, 450 (320 SE2d 758) (1984). In light of these findings, Soerries’ claim for damages lacks any legal basis for recovery. Poole v. City of

Decided September 13, 1996.

Thomas E. Maddox, Jr., for appellant.

Eugene H. Polleys, Jr., for appellee.

Atlanta, 117 Ga. App. 432, 434 (2) (160 SE2d 874) (1968). Accordingly, the trial court did not err in dismissing the complaint in its entirety. Id. at 434. This holding renders moot the City’s motion to dismiss the instant appeal.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.